K.A and others – The Zambrano Story Continues

By Sarah Progin-Theuerkauf

On 8 May 2018, with the judgment in K.A. and others vs. Belgium, the Court of Justice of the European Union (ECJ) has added another piece to the now quite big puzzle that surrounds the legal status of EU citizens (and their third country family members). It ruled that Article 20 TFEU can be violated if a Member State refuses to examine a request for family reunification of a EU citizen with a third country national solely on the basis of an existing entry ban against the third country national. The Court argued that if the refusal compels the EU citizen to leave the territory of the EU as a whole, it deprives EU citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status. Like in the Zambrano case, the EU citizens in K.A. had never exercised their right to free movement.

Just a quick reminder of the Court’s main findings in Zambrano: In that case, Belgium had denied a right of residence to a Colombian father of two Belgian minors. The Court held that, by not giving the father of a Belgian child a derived residence right, Belgium will oblige the child to leave the territory of the EU as a whole, and therefore deprive the child of the genuine enjoyment of the substance of the rights’ conferred by the EU citizenship status. This was argued – and here is the revolutionary aspect – that this even applies in purely internal situations, e.g. where the EU citizen has never exercised his or her right to free movement. Normally, EU law only applies in situations with a cross-border element. Continue reading

Neues aus dem Elfenbeinturm: May 2018

1st International Forum of the Hungarian European Law Institute Hub – The impact and effects of Brexit on EU Law and UK Law

Eötvös Loránd University, Budapest, 14 September 2018. Deadline for abstract submissions: 20 May 2018.

Workshop – Challenges to EU Law and Governance in the Member States

European University Institute, 8 June 2018. Deadline for registration: 22 May 2018.

Conference “OLAF and the EPPO in the new institutional setting for the protection of the financial interests of the EU”

Utrecht University, 15 June 2018. Deadline for (free) registration: 4 June 2018.

International Symposium on Religious Pluralism and European Integration: New Challenges

University of Milan-Bicocca, 28 September 2018. Deadline for abstract submissions: 4 June 2018.

Conference on the implementation of EU laws relating to cross-border judicial measures in civil and criminal law

Czech Bar Association, Prague, 7 June 2018. (Free) registration necessary.

POMFR: EU Criminal Law after Lisbon

By Joost Huysmans

EU Criminal Law after Lisbon. Rights, Trust and the Transformation of Justice in Europe, by Valsamis Mitsilegas, Oxford and Portland, Oregon, 2016, 295 p.

This monograph examines the impact of the entry into force of the Treaty of Lisbon on EU criminal law. By focussing on key areas of criminal law and procedure, the book assesses the extent to which the entry into force of the Lisbon Treaty has transformed European criminal justice and evaluates the impact of post-Lisbon legislation on national criminal justice systems.

After a very short first introductory chapter presenting the objective and the scope of the monograph, the second chapter – which is in effect the first substantive chapter – sketches the general changes the Lisbon treaty has brought about for the competence of the EU in the field of criminal law, which it characterises as the ‘constitutionalisation of EU criminal law’. The chapter however also discusses the few remaining reminiscences to the former third pillar and argues that these can be traced back to fears of some member states during the Lisbon Treaty discussions of a loss of legal diversity of their criminal justice systems. The chapter also focusses on the post-Lisbon legal basis debate in the field of criminal law, by critically analysing the Kadi II (C‑584/10 P, C‑593/10 P and C‑595/10 P) case-law of the ECJ. It discusses the principle of subsidiarity in the context of EU criminal law and analyses the specific positions of the United Kingdom, Ireland and Denmark as well as the problems these specific positions entail for the effective application and coherence of EU criminal law. Continue reading

The Right to Family Reunification of Unaccompanied Minor Asylum Seekers before the Court of Justice of the EU

By Silvia Bartolini

Introduction

On 12 April 2018 the Court of Justice of the EU (hereinafter, the “Court”) delivered a key ruling in A & S (case C-550/16), which hopefully marks a conscious step towards the creation of an effective EU system for the protection of children in migration.

As the Commission points out, the protection of children in all stages of migration should be “first and foremost about upholding European values of respect for human rights, dignity and solidarity. It is also about enforcing European Union law and respecting the Charter of Fundamental Rights of the European Union and international human rights law on the rights of the child” (COM (2017) 211 final). Yet their vulnerability is often denied or forgotten by Member States, especially in the mist of the so-called ‘migratory crisis’.

A & S brings forward the issue as to whether a Member State can deny both the status of being a child and the corresponding protection under EU law to a young refugee who entered its territory as an unaccompanied minor and turned eighteen while waiting for their application for international protection to be processed. In particular, could Member States be left to ‘use’ delays in the processing of children’s applications for the refugee status as a mechanism to thwart their fundamental right to family reunification?

In its children’s rights centred ruling, the Court made clear that Article 10 (3) (a) of Family Reunification Directive (Directive 2003/86/EC) creates an enforceable right to unaccompanied minor refugees to be reunited with their parents; a right which cannot be thwarted by the ‘negligent’ behaviour of the national authorities. In particular, an unaccompanied child who has turned eighteen while waiting for their refugee status application to be processed should still be considered as an ‘unaccompanied minor’ and therefore be entitled to a right to family reunification if their application is successful. Continue reading

Mangold Recast? The ECJ’s Flirtation with Drittwirkung in Egenberger

By Eleni Frantziou

In its recent ruling in Egenberger (C-414/16), the Court’s Grand Chamber has redrawn the boundaries of a constitutional problem German courts are rather familiar with: the horizontal application of the right not to be discriminated against in situations coming within the scope of EU law. The case raises two important constitutional issues: firstly, whether the horizontal effect of EU fundamental rights must be direct; and, secondly, how the balance between conflicting fundamental rights should be reached in a private dispute. This post argues that, on the one hand, in Egenberger,the Court offers a methodologically more principled account of the horizontal effect of fundamental rights than its case law has provided to date. On the other hand, its approach towards the balance between religious freedom and non-discrimination is problematic because it does not offer the degree of clarity and guidance that is needed to accommodate horizontal conflicts of rights under the Charter framework. Continue reading

Neues aus dem Elfenbeinturm: April 2018

Conference “Sovereigns and citizens in the Brexit bargain: Do rights count?” (Prof. Takis Tridimas)

Université de Liège, Amphithéâtre Portalis, 23 April 2018 (15:30-16:30).

Summer School “Parliamentary Accountability and New Technologies: Transparency, Privacy and Security Challenges”

LUISS Guido Carli University, Rome, 9-20 July 2018. Deadline for applications: 29 April 2018.

Call for papers: Edited Volume “Legal Impact Assessment of Brexit”

Deadline for submissions: 9 May 2018.

Workshop “The International Legality of Economic Activities in Occupied Territories”

T.M.C. Asser Institute, The Hague, 17 October 2018. Deadline for abstract submissions: 15 May 2018.

Conference “Procedural rights in criminal proceedings in the EU”

Universities of Utrecht, Leiden and Maastricht, 13-14 September 2018. Deadline for applications: 15 May 2018.

Conference “Human Rights Laws at a Crossroads: What Directions after Brexit?”

University of Leicester, 25 May 2018. (Free) registration necessary.

Workshop “Constitutional Protection of Minorities – Comparing Concepts, Models and Experiences in Asia and in Europe

University of Trento, 4-5 May 2018. Registration necessary.

Summer School “Comparing Constitutional Adjudication – Islam in Constitutional Adjudication in Europe”

Dimaro, Italy, 30 July-3 August 2018. Deadline for applications: 26 April 2018.

Seminar “The Western Sahara Campaign Case”

Queen Mary University of London, 3 May 2018. Registration necessary.

Elite Taxi and Uber France : do Member States have free rein to prohibit and criminalise ridesharing activities?

By Pieter van Cleynenbreugel

Long gone are the days when a taxi was the only means of private transport in return for payment to be obtained in our cities. The ridesharing smartphone application provider Uber has shaken up the way in which people book, offer and conceive private rides. One of the most far-reaching and therefore controversial Uber applications is UberPOP. That application enables non-professional individuals (in contrast with UberX, which relies on professional – and often licensed – drivers) to act as remunerated drivers, transporting other private individuals from point A to point B. As UberPOP drivers generally are non-professional drivers making ancillary revenue out of their ridesharing activities, they do not have a taxi or other transport license and are not employed by Uber. That fact has encouraged regulators strictly to limit or even to prohibit UberPOP activities for safety and consumer protection reasons.

A prohibition thus issued in Barcelona gave rise to a first ruling by the Court of Justice on the matter in the Elite Taxi judgment (C-434/15) rendered last December 2017. In some Member States, such as France, the offering of unlicensed transportation activities has even been subject to criminal law sanctions, which led to the Uber France judgment (C-320/16) rendered on 10 April 2018. In both judgments, Uber argued that the national regulations in place were incompatible with EU law and more particularly with the provisions of the e-commerce (Directive 2000/31) and services (Directive 2006/123) Directives. The Court flatly ruled out that possibility, considering Uber to offer services in the field of transport not actually governed by EU secondary legislation. Continue reading

Settling the dust? An analysis of Taricco II from an EU constitutional and criminal law perspective

By Giovanni Zaccaroni and Francesco Rossi

Many valuable contributions have been written (for example this blog post but also elsewhere, among many others) on the M.A.S. decision (M.A.S. and M.B., case C-42/17 a.k.a. Taricco II) and, more in general, on the Taricco saga. The majority of them, however, focus mainly on the criminal and constitutional law dimensions separately. In this contribution, we focus on these dimensions together: we believe that this decision is equally important for the relationship between the Court of Justice of the EU (CJEU) and the national Constitutional Courts as it is for the hazardous path of a harmonization of the general part of criminal law at EU level.

The reason why these two dimensions are usually examined separately lies on the different background of the scholars concerned. In this blogpost we have done the effort to put together and explain the importance of the M.A.S. decision from the viewpoint of a criminal lawyer and from the one of a (European) constitutional lawyer. To do that, this work will be divided in two main parts: we will firstly look at the relationship between the CJEU and the Italian Constitutional Court (ICC) (in the first part, sections I and II, written by Giovanni Zaccaroni). We will then see whether and how the decision advances the harmonization of criminal law at an EU level (the second part, sections III-V, written by Francesco Rossi). Continue reading

How to Bring It Home – The EU’s Options for Incorporating the Fiscal Compact into EU Law

By Johannes Graf von Luckner

From North to South, from national governments to the Commission: EU Institutions and Member States are in agreement that a reform of the Economic and Monetary Union (EMU) is high on the political agenda. One aspect of such a reform is the integration of the Fiscal Compact into the EU legal framework, which the Member States committed to in the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (TSCG). With a French Government that is pushing for reforms, a German government that is finally in place, and a proposal for a directive drafted by the EU Commission on the table, it is likely that the topic will gain importance.

In three somewhat distinct steps, this post aims to explain the obligation to incorporate the Fiscal Compact into EU law (1.), explore one viable option to do so, which some of the treaty-drafters might have had in mind, namely the Enhanced Cooperation mechanism (2.), and analyse the (rather surprising) Commission proposal on the topic (3.). Continue reading

EU-Morocco Trade Relations, Western Sahara and International Law: The Saga Continues in C-266/16 Western Sahara Campaign UK

By Anne-Carlijn Prickartz and Sandra Hummelbrunner

This February, the Court of Justice of the European Union delivered a judgment in which, one year after the C-104/16 P Council v Front Polisario judgment, once more the EU’s trade relations with Morocco took centre stage. Whereas in Front Polisario the Court was faced with the question of the validity of the EU-Morocco Association Agreement (AA) and Liberalisation Agreement (LA), this time the Court was tasked with determining the validity of the EU-Morocco Fisheries Partnership Agreement (FPA), the 2013 Protocol thereto and the EU implementing acts in the context of a preliminary ruling procedure requested by the British High Court. The national proceedings were brought by the voluntary organization Western Sahara Campaign UK, which sought to challenge certain British policies and practices implementing the aforementioned legal acts, as far as they pertained to goods originating in and fisheries policy related to Western Sahara. As in Front Polisario, the main issue was the application of these agreements to the territory of and products originating in Western Sahara, a non-self-governing territory to be decolonised in accordance with the principle of self-determination, but considered by Morocco to be an integral part of its sovereign territory (for background, see our Article on T-512/12 Front Polisario v Council).

Given that this is the first request for a preliminary reference concerning the validity of international agreements concluded by the EU and their acts of conclusion, it also raised some new procedural questions, especially concerning the Court’s jurisdiction. In this case, the Court readily accepted that it has jurisdiction to give preliminary rulings on the interpretation and validity of all EU acts, ‘without exception’. This is noteworthy in and of itself, as it firmly establishes the Court’s jurisdiction when it comes to reviewing the EU’s international agreements in light of international law, albeit indirectly in the context of ruling on the validity of the EU act approving the international agreement in question (Judgment paras 48-51). Such jurisdiction is in line with the Court’s recent case-law that provides for the Court’s comprehensive jurisdiction, especially in light of the Court’s finding that the Treaties have created a ‘complete system’ of judicial review entrusted to the Courts of the EU (Rosneft para 66). Continue reading

From Conflicts-Rules to Field Preemption: Achmea and the Relationship between EU Law and International Investment Law and Arbitration

By Harm Schepel

Introduction

Investment Tribunals called upon to resolve intra-EU disputes are getting used to the European Commission showing up at their doorstep to try to convince them to decline jurisdiction. Though the range of arguments is wide and varied depending on the circumstances of the case and the underlying Investment Treaties, the overarching theme is simply that EU Law reigns supreme in relations between Member States and overrides all international law commitments that individual Member States- and the EU itself in the case of the Energy Charter Treaty- have entered into.  The Commission has occasionally met with success: in Electrabel, a long learned discussion on the relationship between EU Law and the ECT was concluded with the bombshell that EU law ‘would prevail over the ECT in case of any material inconsistency’  (para. 4.191). Other times, it is summarily dismissed. ‘Should it ever be determined that there existed an inconsistency between the ECT and EU Law’, observed the Tribunal in RREEF Infrastructure, ‘the unqualified obligation in public international law of any arbitration tribunal constituted under the ECT would be to apply the former. This would be the case even were this to be the source of possible detriment to EU law. EU law does not and cannot “trump” public international law.’[i]

The most interesting point about these wide divergences between different Tribunals on rather fundamental points of EU and international law is how little they seem to matter.  In both RREEF and Electrabel and numerous other intra-EU cases, the Tribunals disposed of the matter by pointing out that, in casu, there was no relevant material inconsistency, no conflict, no need to rule on matters of EU law, no incompatibility of obligations under different Treaties, and/or nothing that could not be solved by ‘harmonious interpretation.’ It might make sense to think of this Tribunal practice as devising conflicts-rules.

There are good reasons for the Court of Justice not to want to play this game. A case by case analysis of whether a particular award passes muster through national enforcement proceedings, or a Treaty-by-Treaty analysis of whether a particular dispute settlement or applicable law clause is compatible with EU law, is bound to be time consuming and labor-intensive, and will inevitably be unpredictable and lead to legal uncertainty.    Continue reading

Case C-355/16 Picart: The narrow interpretation of the Swiss-EU Agreement on the Free Movement of Persons as a lesson for Brexit?

By Benedikt Pirker

Last week, the Court handed down a decision on the provisions of the Agreement on the Free Movement of Persons (AFMP) between Switzerland and the EU. It denied that a French national who had moved to Switzerland and who wanted to rely on the AFMP’s freedom of establishment provisions to challenge a French legal mechanism of exit taxation on unrealised capital gains could do so. The case is of interest for those following Swiss-EU relations, as the ECJ had (and missed) the opportunity to say more on the rather specific version of freedom of establishment enshrined in the Agreement. At the same time, there are also certain lessons to be learned for the interpretation of future agreements of the EU with third countries dealing with access to the internal market and the free movement of persons (looking at you, Brexit). Arguably, there is a certain meandering in the reasoning of the Court on the AFMP, and this latest case seems to demonstrate a return to the early days of a more restrictive interpretation, based to a substantial degree on the fact that Switzerland has said no to the internal market. Below, I will briefly explain the facts of Picart and the decision of the Court. Then, I will examine in more depth the above claim on the Court’s shift in interpretive methodology and the alternative approaches to the interpretation of the AFMP that could have been taken. Continue reading

Neues aus dem Elfenbeinturm: March 2018

Conference “The Future of the EU and European Law”

Palacký University, Olomouc, 19-20 April 2018. Deadline for registration: 29 March 2018.

Conference “Law-Making in Multi-Level Settings – Federalism, Europe, and Beyond”

University of Antwerp, 20-21 September 2018. Deadline for abstract submissions: 9 April 2018.

Call for papers “European Junior Faculty Forum”

European University Institute, 12-13 July 2018. Deadline for paper submissions: 1 May 2018.

Conference “Brussels, We Have a Problem – Rethinking Justice Within the European Union”

University of Witten/Herdecke, 8-10 June 2018. No deadline for registration.

Summer School “Cinema Human Rights and Advocacy”

Venice, 27 August-5 September 2018. Deadline for registration: 20 June 2018.

Achmea – A Perspective from International (Investment) Law

By Pekka Niemelä

A week has passed since the European Court of Justice (ECJ) rendered the landmark Achmea judgment. A number of posts analyzing the judgment have already appeared in the legal blogosphere (see e.g. here, here, here and here). Much of this commentary has focused on describing the Court’s reasoning and on analyzing the judgment’s broader implications. Most commentators agree that there was nothing unexpected in the Court’s conclusion that the arbitration clauses in the less than two hundred intra-EU BITs have, as the Court put it, an ‘adverse effect on the autonomy of EU law’ (para. 59).

The judgment’s reception has also varied in accordance with the view one has of the underlying purposes of investment treaties – do they promote the international rule of law or narrow corporate interests at the expense of the public interest? Accordingly, those critical of investment treaties and arbitration have welcomed the judgment, whereas the proponents of investment treaties have argued that the judgment leads to less ‘rule of law within the EU’.[1] On a higher level of abstraction, the plausibility of the Court’s reasoning also depends on the view one has of the EU in general: is it an autonomous constitutional order based on the protection of fundamental rights and certain foundational values? Or should the EU demonstrate more openness towards other international law regimes, as it is just one such regime among others? Depending on the view one has over these two intertwined general questions, Achmea can either appear as a logical corollary of EU constitutionalism or as a breach of the EU’s commitment to the international rule of law.

What this blogpost strives to do is to take issue with the Court’s understanding that arbitral tribunals interpret and apply EU law in ways that pose a threat to its autonomy. The point is not to argue that the Court’s reasoning and conclusions are incorrect, but to shed light on the ways in which arbitral tribunals have actually ‘used’ EU law, and to show that the Court’s understanding (with which most commentators sympathize) that investment arbitration poses a threat to the autonomy of EU law is somewhat inflated. Continue reading

Don’t Lead with Your Chin! If Member States continue with the ratification of CETA, they violate European Union law

By Christina Eckes

 After last week’s Achmea ruling of the Court of Justice (CJEU) Member States can no longer legally go ahead with ratifying CETA – the mixed Free Trade Agreement that the EU and its Member States agreed with Canada. Achmea casts serious doubts on the legality of CETA’s investment chapter, which allows investors from one Party to submit to an arbitral tribunal a claim that the other Party has breached an obligation under CETA. By simply going ahead with the ratification, they violate the principle of loyalty under European Union law.

On 6 March, the CJEU declared in its Achmea ruling that the investor-state-dispute-settlement (ISDS) mechanism in the bilateral investment treaty between the Netherlands and Slovakia (NL-SK-BIT) as incompatible with EU law. A request by Belgium is pending before the CJEU asking for clarification on the legality of the new Investor Court System in CETA (Opinion 1/17). Achmea is a clear indication that the CJEU in Opinion 1/17 is likely to find also the Investor Court System in CETA problematic for the autonomy of EU law.

No general obligation exists for Member States to halt national ratification of mixed agreements when their compatibility with EU is questioned before the CJEU. Yet, CETA is different. The clear indication of incompatibility in Achmea imposes an obligation on national Parliaments to halt the CETA ratification process and wait for Opinion 1/17. Continue reading

Lounes, Naturalisation and Brexit

By Gareth Davies

Introduction

Many Europeans in the United Kingdom and British citizens on the continent are currently wondering whether they should adopt the nationality of their host state, in order to guarantee their residence rights after Brexit. One disadvantage of doing this is that they cease to be foreigners, people living in a state ‘other than that of which they are a national’ (Article 3, Citizenship Directive) and so lose all the specific rights that EU law grants to migrants in a host state, most notably those concerning family members. These migrants’ rights are largely found in the Citizenship Directive, and are the basis for the provisions on Citizens’ rights in the draft Brexit Withdrawal Treaty. Ceasing to be a foreigner thus creates legal risks, as well as advantages.

Lounes has now added an interesting twist to this situation. The essence of this judgment is that a migrant Union Citizen who naturalizes cannot be compared to a native citizen – their migrant history means that they should be treated differently, and continue to enjoy the rights they had as a migrant. It holds out the possibility of the best of both worlds for the potential Brexit victim. On the one hand, all the security that comes with possessing the nationality of their host state. On the other, all the privileges that come with being seen as a migrant in EU law. The draft Withdrawal Treaty, published on 28th February, seems to take this approach too. However, before the champagne can be uncorked we must wait for the final Treaty text, for it would only take small changes in the way that it defines those it protects to spoil the naturalization party. Continue reading

No public interest in whether the EU-Turkey refugee deal respects EU Treaties and international human rights?

By Päivi Leino and Daniel Wyatt

Introduction

The EU Treaty commits the Union to respect international human rights in both its internal and external action, and to always act as openly as possible. Despite this, the transparency of the EU institutions remains a hot-button issue, including in relation to the consummation of international agreements (or other international arrangements) that have potential human rights implications. This very issue was on display in the recent judgment of the General Court in Case T-851/16 Access Info Europe v Commission. Here, Access Info Europe, an NGO concerned about the 2016 compatibility of the EU-Turkey refugee deal with international human rights law, sought, through an access to documents request made to the Commission, to uncover the institution’s own legal analysis regarding the agreement’s legality.

The matter was no less urgent because of the General Court’s recent order in Cases T-192/16, T-193/16 and T-257/16 NF, NG and NM v European Council, which established that the deal does not count as measure adopted by one of the institutions of the EU for the purposes of judicial review under the Treaties. This leaves the matter in a legal limbo especially considering that the EU is not party to the European Convention of Human Rights and thus not subject to its external human rights scrutiny, a path effectively closed by the CJEU itself. To our knowledge, the EU Fundamental Rights Agency, the EU body that was established to provide expertise on fundamental rights, had not been consulted on the matter. It would be a clear concern to the public to uncover, if this indeed was the case, that an international arrangement that dealt with areas of fundamental importance, for example considerations of whether Turkey was a ‘safe third country’ for the purposes of the refugee regime, was concluded on the basis of hasty and incomplete legal advice—or, in the worst case, that advice that deemed the agreement illegal was ignored. It is hard to envisage a matter in which public access rules would be serving their constitutional function better.

Continue reading

ART. 101(1) TFEU: A Bitter Pill for Hoffmann-La Roche

By Martin Herz and Justin Lindeboom

On 23 January 2018, the Court (Grand Chamber) gave a preliminary ruling on five questions asked by the Italian Consiglio di Stato, with regard to an anti-competitive arrangement in Italy, between two distributors of medical products, Hoffmann-La Roche (“HLR”) and the Novartis Group (“Novartis”). HLR, whose name must be familiar in the eyes of competition lawyers, was yet again plagued with an unfavourable ruling. In it, the Court further clarified its case law on one of the foundations of competition law: the market definition. Generally, in antitrust cases, before being able to measure most effects of certain conduct, markets will be defined. Since the United Brands ‘bananas’ case from 1978, this has been standing case law.

Market definitions consist of a two-pronged approach, namely, a product market, and a geographical market definition. Both depend on the characteristics and intended use of the product, and of course, whether there is demand and supply of the products in question to begin with. Subsequently, products that consumers (or producers) find interchangeable to a high extent, will fall within the same market.

An example might clarify this. An element that watches, timepieces, wall clocks, and alarm clocks have in common is that they are all time-keeping instruments. However, they are unlikely to fall within the same product market. For different reasons, people want watches, timepieces aut cetera. Production costs (and thus, prices) might differ highly as well. For instance, the clock of the Big Ben is not comparable to a wrist watch. Hence, different product markets for time-keeping instruments will exist.

Continue reading

The EU Single Market Information Tool: The European Commission’s new investigative power in 2018

By Gianni De Stefano and Jaime Rodríguez-Toquero

The European Commission is about to gain a new investigative power through the Single Market Information Tool (SMIT).  The SMIT will allow the Commission to request information (including factual market data or fact-based analysis) from private firms or trade associations when the Commission initiates or substantiates infringement proceedings against one or more Member State(s) that may have failed to fulfil an obligation under the applicable Single Market legislation.  This post will discuss the background of the SMIT, its purported rationale, and critically reflect on the powers granted to the Commission under the SMIT.

The Commission is at pains to clarify that the SMIT initiative does not aim to create new enforcement powers allowing it to pursue infringements of Union law in the Single Market area against individual market participants.  That said, the Single Market rules can be infringed by either Member States or private companies.  Therefore, companies responding to such information requests will not only incur administrative and financial burdens, but they will also have to be careful not to incriminate themselves in doing so, as we will see below.

Continue reading

Does Member State Withdrawal from the European Union Extinguish EU Citizenship? C/13/640244 / KG ZA 17-1327 of the Rechtbank Amsterdam (‘The Amsterdam Case’)

By Oliver Garner

Update (21/02/2018; 19:00 CET): On 20th February 2017, an appeal to the ‘intention’ of the District Court to refer questions to the Court of Justice of the European Union was admitted. The Dutch government and the Municipality of Amsterdam now have three weeks within which to appeal.

Contents

Introduction: A New Route from Amsterdam to Luxembourg.

A Brief Chronology of the Relevant Facts and Sources for the Amsterdam Case.

A Summary of the Amsterdam District Court Decision.

Legal Analysis of the Questions Referred: The Arguments for and against Automatic extinction and a Potential Compromise.

Conclusion: The Ramifications of Emancipative Legal Constitutionalism.

Introduction: A New Route from Amsterdam to Luxembourg

Despite the United Kingdom’s impending withdrawal from the European Union, a direct Eurostar train route from London to Amsterdam will soon be established. This route will enable, amongst others, all of those holding the status and rights of EU citizenship to move ‘freely’ between the two metropolises. This class still includes nationals of the United Kingdom, and ostensibly will continue to do until that Member State’s withdrawal is concluded in accordance with Article 50 TEU. An incorporeal yet no less direct route has now also been established between Amsterdam and Luxembourg as a result of a preliminary reference by the Rechtbank Amsterdam (‘District Court’) to the European Court of Justice  (‘ECJ’)   under Article 267 TFEU. Such a judicial pathway may facilitate retention of the status and rights created by Article 9 TEU and Article 20 TFEU for the aforementioned nationals of the withdrawing state. Continue reading