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.

The judgment

The issuance of an EAW, the flagship of EU criminal justice cooperation, is a decision “extending” the reach of a national arrest warrant to the EU-level. The EAW is defined as a judicial decision from a Member State with a view to the arrest and surrender, by another Member State, of a requested person in order to put them on trial or to execute a prison sentence or similar, Article 1 of Framework Decision 2002/584/JHA on the EAW (FD EAW) (a framework decision is a pre-Lisbon legal act; it is roughly equivalent to a directive, but cannot have direct effect). An EAW must always be based on a previous national arrest warrant, sentence, or similar judicial decision (Article 8(1)(c) FD EAW).

The starting point of the CJEU’s reasoning is Art. 6(1) FD EAW. According to this provision, the Court states, it is in principle for national law to determine which bodies are “issuing judicial authorities” capable of issuing EAWs. However, as the CJEU held already earlier in Poltorak and Kovalkovas, the term “judicial authority” is an autonomous concept of EU law. Therefore, the CJEU lays down the minimum requirements for a nationally-determined authority to fall within Art. 6(1), consequently enabling the authority to issue EAWs.

The first, basic requirement is that the national authority must be an “authority participating in the administration of criminal justice”. This is a wide concept that is not limited to judges or courts: it aims to include all bodies involved in the administration of criminal justice at large. In its judgment, the CJEU held that this criterion is easily met by German prosecutors’ offices, as they have exclusive competence to issue indictments.

The second requirement, which the CJEU has now proven to apply very strictly, is that the issuing authority must be “guarantee[d] [to] act independently” when issuing EAWs.

 While a general requirement of independence may be an obvious requirement in cross-border judicial cooperation, the rigour with which this must be applied according to the CJEU’s latest judgement may be somewhat surprising. After all, the EAW is always based on a previous national arrest warrant or criminal judgment, both of which must be issued by a court, for which the strictest level of independence must be presumed from the outset. However, the CJEU in its judgment envisages a two-level system of protection of the requested person’s fundamental rights. The first level of protection is granted when the underlying national judicial decision is taken; the second, when the national decision is transformed into an EU-wide EAW. Therefore, the CJEU argues, where that second decision is not taken by a court or judge, it must be verified that the responsible authority grants the requested person the same level of rights protection as a court would – that requires strict independence from external influences such as instructions or directions, especially from the political level. This is particularly important in arrest proceedings since they affect by definition the right to liberty, enshrined in Article 6 of the EU Charter of Fundamental Rights.

The short answer to the question of whether this level of independence is reached by German prosecutors is no. German prosecution services are organised in a hierarchical structure, at the top of which is the Minister of Justice of the Land in which the prosecutor works (administration of justice largely being a competence of the Länder). According to sections 146 and 147 of the Courts Constitution Act (GVG), prosecutors are obliged to follow instructions from superiors, including their Minister of Justice. A longer answer would require providing some nuance to this stark picture, including the fact that instructions from ministerial level are extremely rare and, when they occur, are invariably accompanied by significant public attention. Moreover, the right to issue instructions is often accompanied by transparency requirements (e.g. an obligation to report the instructions to the relevant Land parliament). However, it is fair to conclude that in light of the CJEU’s strict approach to the independence criterion, the German public prosecution services are, indeed, not independent in the strictest sense required by the FD EAW.

But why?

While the Court’s logic of a two-fold protection of fundamental rights, stringently applied in this case, is appealing from the perspective of individual rights protection, one might still wonder whether there is an actual need for this second-level to be an equally independent decision. After all, the initial judicial decision leading to the EAW is taken by one or several judges who are obliged to carefully take the requested person’s rights into consideration. Why is there a need for a second safeguard when seeking to arrest the requested person in another Member State, whereas all other activities when executing an arrest warrant are entrusted to non-judicial actors?

The key to answering this question is touched only briefly by the CJEU when it mentions the need for the decision to issue an EAW to be proportionate (para 71). The idea behind this is that an arrest based on an EAW usually leads to the requested person’s surrender to another Member State. This often entails linguistic and cultural barriers, a reduced possibility to be visited by family members and so on, and consequently a lower chance of successful social rehabilitation. Therefore, an arrest due to a EAW regularly affects the fundamental right to liberty to a greater degree than an arrest in one’s home country (for illustration, see the case of a Hungarian surrendered to Romania for stealing a Christmas tree – without realising he was on the wrong side of the border). There are, therefore, situations in which it is proportionate in light of the right to liberty to issue a domestic arrest warrant, but not an EAW.

It is for this reason that an additional fundamental rights assessment, including especially a thorough proportionality assessment, is required when deciding that a requested person is to be sought for surrender to another Member State. And such an assessment, according to the CJEU’s latest judgment, can only be conducted by an independent body.

The Aftermath

According to information from the German Federal Criminal Police Office, there are currently around 5,600 outstanding EAWs issued by German authorities. While the immediate effect of the judgment is limited to the two EAWs in issue in those cases (concerning alleged criminals in Ireland), the decision opens the door to resisting every surrender on the basis of a German EAW because of the lack of independence of the prosecutors’ offices, pending a reform of the legal framework. As shown in similar previous cases, the executing authorities will not, under these circumstances, be in a position to give effect to the EAW and surrender the requested persons.

As regards the open EAWs, needless to say an ad hoc solution is urgently needed and will take some legal imagination. One option practitioners may now be looking at is to interpret the patchy German legal framework on the EAW in the light of the new judgement. German law does not specify explicitly who is responsible for issuing EAWs. Therefore, it could be argued that for the time being, German judges or courts can issue EAWs instead of the prosecutors’ offices following the CJEU’s judgement. However, the implicit character of the designation of public prosecutors to issue EAWs was already problematic as it was. Reinterpreting it now would add numerous problems of organisational (which court or judge is responsible?) and legal (lack of legal certainty, right to one’s lawful judge (as laid down in Art. 101(1) German Basic Law), etc.) nature.

What might come to Germany’s help are the extensive preparations made recently with respect to EAWs in the event of a no-deal Brexit: both the European institutions and the Member States have been looking for solutions in case the UK abruptly falls out of the EAW system in that scenario. Most actors concluded that for this scenario, the Council of Europe Convention of Extradition provides a viable fallback solution. Similarly, German EAWs could be transferred to the regime of  international law extradition requests where necessary. This system is far more complicated (Germany itself stated recently that it would not be able to extradite its citizens to the UK once EU law stops applying) but will remain functional whilst the necessary amendments to the German legal framework are drafted and brought into force.

Pending further constitutional analyses, which is beyond the scope of the present blogpost, the German legal framework could be reformed to align with the FD EAW in various ways: a frequentlydemanded general reform, allowing for total independence of German prosecution services; an exception to the hierarchical structure to which prosecutors are subject for EAWs on the federal level; or potentially even a patchwork of 16 different Länder solutions (plus another one for the federal prosecution service for certain very serious crimes), the last of which would be a nightmare for foreign judicial authorities to understand.

However, the judgment might have implications that reach well beyond Germany and German EAWs. According to notifications issued by Member States, a total of 13 Member States (Austria, Bulgaria, Croatia, Estonia, Finland, France, Germany, Greece, Lithuania, Luxembourg, Netherlands, Portugal and Sweden) designated their public prosecutor’s offices as issuing judicial authorities. Of these 13 states, only Estonia and Finland have, according to the European Commission’s Justice Scoreboard (p.11), prosecution services that can be deemed 100% independent (Lithuania should also be mentioned for its prosecutors’ almost perfect score). This should not be understood as a claim that in each of the remaining 11 Member States, political decisions can influence the decisions of prosecutors to the same degree as they (theoretically) could in Germany. What the high number of states with doubts remaining shows, however, is that national authorities will have a lot of work to do when distinguishing sufficiently independent prosecution services from structurally dependent ones when executing EAWs in the future.

Some comfort may be provided by the fact that Member States have a role model should reform of their EAW issuing authority becomes necessary. In a judgment published on the same day, the CJEU confirmed that the Lithuanian prosecutor general is sufficiently independent to issue EAWs – from the point of view of displaying their own impartiality, one might imagine that the judges in Luxembourg were not unhappy about the East/West divide in these results.

In any case, Germany as one of the main users of the EAW is now facing a delicate double task: it needs to find an ad hoc solution as fast as possible and a long term solution as sustainable as possible.

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

Challenging a bank’s license withdrawal by the ECB: can the bank act or can its shareholders?

By René Smits

Summary

Pending before the European Court of Justice (ECJ) is a core issue of legal protection against European Union (EU) acts – can a bank itself challenge the withdrawal of its license by the European Central Bank (ECB) even when the powers of the bank’s board have been taken over by a liquidator, or can the shareholders act for the bank or, alternatively, for the protection of their own interests?

Three years since the ECB withdrew the license of a Latvian bank, Trasta Komercbanka, in March 2016, this issue of effective judicial protection is at the centre of proceedings[1] in which the Advocate General (AG)’s Opinion is just out. This post sketches the background to the on-going proceedings and summarises the AG’s Opinion, highlighting the issue of contestation of withdrawal of a bank’s license: who can challenge the ECB in court: the bank’s board, side-lined by the liquidator, or its shareholders? Continue reading

The principle of economic continuity’s application on private enforcement: Case 724/17 Skanska

By Guilherme Oliveira e Costa

Introduction

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

Skanska is a challenging judgement that confirms that the competition enforcement system must be viewed as a coherent system where both public and private enforcement play a crucial and complementary role, which is demonstrated by the application of the principle of economic continuity to private enforcement. Moreover, it addresses one of the several issues that has not yet been harmonised regarding private enforcement: the responsibility for damages in private enforcement legal procedures. As such, Skanska may be a leading case in a private enforcement’s possible second stage of development in the aftermath of Directive 2014/104/EU. Continue reading

Neues aus dem Elfenbeinturm: April 2019

US – EU Environmental Law Colloquium

Rome, 30 May 2019. Registration necessary.

Conference  From Tampere 20 to Tampere 2.0: Towards a new programme (2020-2024) for EU migration and asylum policies 20 years after the Tampere conclusions?

Helsinki, 24-25 October 2019. Deadline for submissions: 10 May 2019.

5th Annual TAU Workshop for Junior Scholars in Law – Rethinking Law and Boundaries

Buchmann Faculty of Law, Tel Aviv, 17 November 2019. Deadline for abstract submissions: 10 May 2019.

4th European Privacy Law Scholars Conference

University of Amsterdam, 24-25 October 2019. Deadline for abstract submissions: 23 May 2019.

Workshop on Feminist Data Protection

Berlin, 20 November 2019. Deadline for abstract submissions: 15 June 2019.

Academy of European Public Law

Athens/Sounion, 26 August-14 September 2019. Deadline for applications: 29 June 2019.

XXIX FIDE Congress 2020

The Hague, 20-23 May 2020. Registration opens in summer 2019.

2019 Odysseus Summer School on EU Immigration and Asylum Law and Policy

Brussels, 1-12 July 2019.

Association of American Law Schools Annual Meeting – European Law Section Works in Progress Panel

Washington, 2-5 January 2020. Deadline for abstract submissions: 1 August 2019.

EU Equality Law: Looking Ahead after 20 Years of Policymaking*

By Sara Benedi Lahuerta and Ania Zbyszewska

The adoption of the European Pillar of Social Rights (‘the Pillar’) in 2017 and the 20-year anniversary of the entry into force of the Treaty of Amsterdam in 2019 provide an auspicious moment for not only take stock of accomplishments in the field of EU equality law and critically reflect on the past, but also to look forward. The Treaty of Amsterdam expanded the legal base (current Article 19 TFEU) for adopting EU legislation to six new anti-discrimination grounds (race or ethnic origin, religion or belief, disability, age and sexual orientation) and the recent adoption of the Pillar suggests that EU equality law and policy could now be at a pivotal point. In this brief blog post, we reflect on what, in our view, is one of the key current problems of EU equality law, namely, its (in)coherence at different levels (see Figure 1), and whether the Pillar carries the potential to -at least partially- address this issue. Continue reading

Bold and Thoughtful: The Court of Justice intervenes in nationality law Case C-221/17 Tjebbes

By Stephen Coutts

Introduction

 Tjebbes is a bold and yet thoughtful judgment. It pushes the boundaries of the role of EU law in nationality matters and yet does so in a manner that both respects the primacy of the Member States in regulating this area of law, and acknowledges the genuine Union-interest in the manner in which denaturalisation decisions impact on Union citizens. It provides a follow-up and elaboration of the judgment in Rottmann, confirming the applicability of Union law in nationality law and detailing the nature of its intervention. This intervention is of both a procedural and a substantive kind, requiring an individual examination of any decision withdrawing nationality having regard to a set of consequences linked to the status of Union citizenship. Continue reading

New posts on the European Law Blog – email subscription service working again

By the editors

The European Law Blog had a software malfunction in the email subscription service for the past few posts. We have resolved the issue and would therefore draw your attention to the four posts that have been published and for which you have not received an email notification.

 

1. Will Deliveroo and Uber be captured by the proposed EU platform Regulation? You’d better watch out…

How to turn subsidiarity into an effective tool ? – Reflections on the Communication of the European Commission on the principles of subsidiarity and proportionality

By Vincent Delhomme

After its State of the Union address of 13 September 2017, in which he presented his vision for the future of the Europe Union, President Juncker announced the creation of a Task Force to reflect on the application of the principles of subsidiarity and proportionality in EU policymaking and to make propositions to strengthen their role (see the President’s Decision). After several meetings and consultations, the Task Force published its findings in a final Report and the Commission released a Communication in October 2018 in which it commits to follow several of the propositions made.

This commentary presents some of these recommendations and sketches some (rough) reflections on the place of the principle of subsidiarity in the EU legal order and how to improve its role as a tool to control EU legislative activity. Continue reading

Neues aus dem Elfenbeinturm: March 2019

Conference “European Union Law Enforcement: The Evolution of Sanctioning Powers”

University of Turin, 28-29 March 2019.

Young Researchers Colloquium “Enforcement Challenges in Multi-level Regulatory Systems: Mapping the Landscapes”

University of Luxembourg, 21-22 May 2019. Deadline for abstract submissions: 31 March 2019.

Conference “Diversity in Unity: The Succession Regulation in Hungary and Beyond”

Budapest, 12 April 2019. (Free) registration necessary.

Seminar “EU Blocking Regulation and extraterritorial US sanctions”

University of Utrecht, 18 April 2019. (Free) registration necessary.

Conference “10 Jahre Vertrag von Lissabon. Reflexionen zur Zukunft der europäischen Integration”

Berlin, 21 June 2019. Deadline for proposal submissions: 26 April 2019.

Call for Papers “The City in Constitutional Law”

European Yearbook of Constitutional Law. Deadline for proposal submissions: 30 April 2019.

Conference “Synergies between International Criminal Law and UN Agenda 2030”

International Nuremberg Principles Academy, 3-4 May 2019. (Free) registration necessary.

The Imminent Distortion of European Private, Company and Insolvency Law by the Introduction of Relative Priority European Style

By Rolef de Weijs, Aart Jonkers  and Maryam Malakotipour

One stone can change the current of a river. Likewise, one small seemingly technical rule can alter the entire legal system and with it the basic fabric of society.

The European Parliament is about to enact a Directive on Preventive Restructuring Frameworks. Last minute a completely new and never tested nor explained legal concept referred to as Relative Priority was inserted, probably without realizing its ramifications. This new rule is likely to distort basic private law, basic company law and basic insolvency law. Most likely, the European Parliament thinks it is saving businesses and thereby jobs and while at it, also strengthening the position of Small and Medium Enterprise (‘SME’) Businesses in Europe. It will not do that. Much more likely is that Relative Priority will turn against the interests of SME’s.

Regardless of whether one has the interest of large banks and the stability of the financial system in mind or the interest of SME’s, the Relative Priority Rule (RPR) is an untested underexplored rule that will upend general commercial law. Continue reading

Will Deliveroo and Uber be captured by the proposed EU platform Regulation? You’d better watch out…

By Pieter van Cleynenbreugel

Online platforms have become major economic players over the past decade. It is not surprising, therefore, that their business practices have captured the European Union’s attention. This attention resulted in a 2018 proposal for a Regulation on transparency and equity in relationships with online platforms, a political agreement on which has been reached between the Commission, Council and European Parliament on 13 February 2019 (see for the press release, http://europa.eu/rapid/press-release_IP-19-1168_en.htm). It is very likely that this Regulation will be adopted before the European Parliament elections of this year. Even though it may seem premature to comment on the Regulation’s content in an in-depth way (the final negotiations and fine-tuning are still in progress at this time), this contribution would like to flag an important gap that has seemingly withstood scrutiny so far. That gap concerns the fact that the proposed Regulation apparently – seemingly unintentionally – would not apply to ‘underlying service-attached intermediation activities’ offered by platforms such as Uber and Deliveroo. This is most surprising, as the Commission clearly wants them to fall within the scope of that Regulation (according to its press release mentioned above, the new instrument is to apply to ‘the entire online platform economy’ if and when adopted). This contribution uncovers that gap and proposes a way to close it. Continue reading

The Butterfly Effect of Publishing References to Harmonised Standards in the L series

By Annalisa Volpato and Mariolina Eliantonio

A small change can have big consequences. Some of these changes may be unplanned and unpredictable. Some represent welcome developments that complement and contribute to long-running narratives of progress. Arguably, the recent publication of a reference to a harmonised standard in the L series of the Official Journal of the European Union belongs to the latter category. It may yet, however, prove to have unintended consequences that go beyond that which was originally envisioned.

Technical standards have long played a fundamental role in the regulation of the internal market. According to the regulatory technique of the “New Approach”, EU directives establish only the essential requirements of general interest of a product, while referring the detailed definition of technical aspects to private organizations composed of experts and representatives of the business sector, i.e. the European standard-setting organisations (ESOs). To this end, the European Commission makes a request to one of these ESOs and, where a standard satisfies the requirements set out in the request and in the corresponding Union harmonisation legislation, it publishes a reference to it in the Official Journal. Through this procedure, these standards elaborated by private European standardisation bodies are granted a presumption of conformity with the secondary EU law measures they are aimed at complementing. Consequently, they are endowed with the qualification of ‘harmonised standards’.

Recent developments in EU legislation (see Regulation EU) No 1025/2012) and in the case law (see, inter alia, Case C-171/11, Fra.bo. v DVGW) have progressively changed the view of standardization as a purely non-binding, private phenomenon. In particular, the James Elliott case established the jurisdiction of the European Court of Justice with regard to the interpretation of harmonised standards in a preliminary reference under Article 267 TFEU, clarifying that harmonised standards shall be considered as “measures implementing or applying an act of EU law” and, therefore, “part of EU law”. This ruling of the Court has thus contributed to strengthen the claims of an unstoppable “juridification” of harmonized standards, fostering the debate on their legal qualification under EU law (as discussed here, here and here). Continue reading

ECJ annuls a national measure against an independent central banker

By René Smits

Case C‑202/18 (Ilmārs Rimšēvičs v Republic of Latvia) and Case C‑238/18 (European Central Bank v Republic of Latvia); Opinion of AG Kokott of 19 December 2018, ECLI:EU:C:2018:1030; judgment of the Court of 26 February 2019, ECLI:EU:C:2019:139.

A recent judgment of the ECJ underlined the increasing interweaving of EU law and national law in the area of central bank law, not only in substantive matters but, also procedurally. In the first cases since the provision providing for this anomaly was inserted in the Treaty[1] in 1993, the ECJ confirmed that review of a national legal act affecting the independence of the monetary authority lies with the European Court of Justice. Normally, only legal acts of EU institutions, bodies, offices and agencies can be challenged before the CJEU (Article 263 TFEU); national legal acts with an EU law connotation may come before the CJEU through a reference for a preliminary ruling (Article 267 TFEU) or in infringement proceedings (Article 258 TFEU). Admittedly, this is a singular and exceptional case as it concerns review of a Member State measure by which a Governor of a National Central Bank (NCB) is “relieved from office”. Together with the Executive Board of the European Central Bank (ECB), NCB Governors in the Eurosystem[2] form the ECB’s Governing Council, which has ultimate decision-making power[3] for monetary policy in the Euro Area[4]. Since monetary policy is an exclusive Union competence[5], at least for the <in> Member States[6], to be pursued in independence[7], the Court found that it has jurisdiction to assess the legality of a measure that interferes with an NCB Governor performing his functions and annulled the relevant national decision in so far as it prohibits the Governor from performing his duties as NCB Governor. There is more that’s exceptional about this case: alleged corruption at a central bank, allegations of money laundering and of a misinformation campaign…..

Continue reading

Finding Comfort between a Rock and a Hard Place Advocate General Szpunar on striking the balance in copyright law

By Justin Jütte

Opinions in Funke Medien v Germany (Case-469/17), Pelham v Hütter (Case C-476/17), and Spiegel Online v Volker Beck (Case C-516/17)

In three Opinions that address the balance between copyright as a fundamental right and the right to freedom of expression, Advocate General Maciej Szpunar suggests that external challenges to exclusive rights under copyright law should be limited to extreme cases. In his view, the balance between different fundamental rights in copyright must be struck by the legislature in order to avoid undermining the efforts of EU harmonization.

Background

At a time where European copyright reform is hotly debated and the policy process is at a breaking point that might result in highly unsatisfactory rules or a persistent standstill in the development of EU copyright law (a brief summary of the current status can be found here., Advocate General (AG) Szpunar has been asked to deliver opinions in three preliminary references. All cases have been referred to the Court of Justice of the European Union (CJEU) by the German Bundesgerichtshof (BGH), the Federal Supreme Court. All three references contain similar and even partly identical questions. The essence of the preliminary references lies in the question how copyright rules should strike the balance between the interests of the right holders and users of works that are protected by copyright.

Copyright grants the author of a work the exclusive right to authorise or prohibit a number of protected acts. Such acts include, most importantly, to make reproductions of the work and to make the work available to the public (in physical and intangible form). An overly broad application of these rights could be used to completely control the use of the work, which is why copyright law foresees exceptions and limitations to the exclusive rights for certain purposes. For example, works protected by copyright, or at least parts thereof, can be used for the purposes of quotation and news reporting. At EU level, these rights and exceptions are mainly harmonized by the Information Society Directive (Directive 2001/29/EC, also ‘InfoSoc Directive’). Article 5 of the InfoSoc Directive contains one exception which Member States (MS) are obliged to implement into their national laws and 20 optional exceptions which MS are at liberty to implement. As a general rule, MS are not allowed to maintain in their copyright laws exceptions or limitations that are not contained in Article 5 (special exceptions exists for certain types of works, such as computer programs in Article 5 of Directive 2009/24/EC and original databases in Article 6 of Directive 96/9/EC); recital 32 of the Directive states that the list in Article 5 is exhaustive. There also exist so-called related rights, or neighbouring rights, which do not protect the author, but rather individuals who create, for example, sound recordings. For instance, the InfoSoc Directive and the Directive on rental and lending rights and on certain rights related to copyright in the field of intellectual property (Directive 2006/115/EC) grant producers of sound recordings similar rights to those enjoyed by authors.

This year the InfoSoc Directive turns 18, and although technology and society and the way we interact with works protected by copyright have changed, the elementary rules of copyright have remained unchanged. The longer Article 5 matured the less palatable it became for those who longed for more flexibility in the EU copyright rules. Technological developments, the Internet, social media and other modern phenomena made the list seem outdated. Exceptions and limitations struggled to  accommodate new business models and the application of new technologies that implied the reproduction, even if only for purely functional purposes, of works protected by copyright. European scholars looked with moderate envy to the US where the US fair use doctrine constitutes a flexible moderating norm that can balance the interests of right holders and users on a case-by-case basis.

Many also turned to fundamental rights as a last resort to force open the exhaustive list of Article 5. The right to freedom of expression, in particular, was used as an argument to suggest that exceptions to the exclusive rights must exist beyond the limited list of copyright exceptions of the InfoSoc Directive.

This post does not discuss in detail the analyses of AG Szpunar that pertain exclusively to the interpretation of exclusive rights and exceptions and limitations. They have already been discussed here for Pelham and here for Funke Medien  and here  and here for Spiegel Online. Instead, this contribution focuses on the balance the Advocate Generals strikes between the right to freedom of expression and the right to property within copyright law.

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