Category: AFSJ

‘Conditional’ Primacy of EU Law and Its Deliberative Value: An Imperfect Illustration from Taricco II

By Michał Krajewski

To err is human and so it is with judges, even the highest ones. Take the long awaited ECJ’s judgment in case C-42/17, M.A.S. & M.B. (Taricco II). This is already a second ruling on the Italian statutes of limitation applicable to pending criminal proceedings regarding VAT fraud. The statutes of limitations turned out too short for the Italian justice system, facing workload and efficiency problems. As a result, a significant number of persons guilty of serious VAT fraud might go unpunished. This in turn would undermine the effective protection of the financial interests of the EU (Article 325 TFEU). Previously, in case C-105/14, Taricco I, the ECJ had obliged Italian criminal courts to disapply the statutes of limitations in VAT cases, in order to give full effect to Article 325 TFEU. However, following the firm opposition from the Italian Constitutional Court (the ‘ICC’), the ECJ revoked the said obligation in Taricco II.

In this blog post, I will point to ambiguities in the ECJ’s reasoning in Taricco II and to further problems that this ruling may generate. I will argue, however, that the shortcomings should not overshadow the generally positive conclusion that we may draw from the Taricco saga. In my view, this saga illustrates a positive side to the ‘conditional’ acceptance of EU law primacy by national constitutional courts as the latter provide checks and balances on the ECJ’s enormous judicial power. By threatening to disapply EU provisions, they can force the ECJ to seriously engage in a deliberative process, eventually leading to the correction of mistakes that the ECJ will surely commit from time to time. Continue reading

A Fundamental Right to Tax Enforcement? A response to Prof. Capaldo

By Eduardo Gill-Pedro

In her recent entry on this blog, Prof. Capaldo criticised the judgment of the Court of Justice of the EU in Taricco II by arguing that there exists, in international law (or what the author calls ‘global law’), a fundamental human right to policies that criminalise tax fraud. According to the author, the Court presented in its judgment a false dichotomy between the need to ensure the effective application of EU law and the need to ensure the protection of constitutionally guaranteed rights of the accused. This is because the effective application of EU law also entails the protection of ‘social human rights’, presumably by the proper use of the taxes for public expenditure. In this blog entry I argue that Prof. Capaldo’s argument presupposes a particular understanding of human rights, and that this understanding of human rights is problematic from the perspective of democratic theory.

The understanding of human rights as socially beneficially outcomes  which are to be ensured through the proper expenditure of tax revenue, sees human rights as policy goals. Such policy goals are then to be optimized and balanced against other policy goals situated on the same level. This is made clear in the blog entry, which argued that there was a need to “balance[e] the rights under these articles [social rights which would be secured through tax collection] and the accused’s individual rights guaranteed by the legality principle”. Continue reading

The Global Fight against Impunity and the European Court of Justice: A New Approach to Tax Fraud as a Crime against Human Rights

by Giuliana Ziccardi Capaldo

Introduction

This contribution is a comment to the blog posts of Maxime Lassalle on Taricco I and Michal Krajewski on Taricco II. In the following, I summarize some reflections developed in my article entitled “Lotta globale all’impunità e Corte di giustizia europea: un nuovo approccio alla frode fiscale come crimine contro i diritti umani”, that touch upon the core of the Taricco dispute between the European Court of Justice (ECJ) and the Italian Constitutional Court concerning the prosecution of value added tax (VAT) fraud.

Two very closely related issues are considered in this regard. One is that the ECJ’s view in Taricco I on the interpretation and application of the obligation to combat fraud, imposed on Member States by Article 325 TFUE, opens the way to a new approach to tax fraud as a crime against human rights. The second, logically connected, is that the alleged conflict between the interpretation of Article 325 TFEU given by the ECJ and Italian Constitutional law (the principle of legality in criminal matters as laid down by Article 25(2) Const.) is a false problem for which I present a solution.  Continue reading

A Way Out for the ECJ in Taricco II: Constitutional Identity or a More Careful Proportionality Analysis?

By Michal Krajewski

The final countdown to the announcement of the long awaited judgment in case C-42/17, M.A.S. & M.B. (Taricco II) on 5 December 2017 has begun. The preliminary reference (for an overview see Bassini and Pollicino), by which the Italian Constitutional Court (the ‘ICC’) challenged the judgment of the European Court of Justice (the ‘ECJ’) in C-105/14, Taricco I, has already generated a heated debate online (see for instance here and here). The most fascinating question is whether for the first time the ECJ will authorise a national court to disapply an EU legal provision to protect its national constitutional identity or higher national standards of fundamental rights’ protection. My aim in this post is to question the compatibility of Taricco I judgment with the EU law itself. I will first argue that the ECJ’s judgment in Taricco I is problematic under EU law because the ECJ left out from its reasoning the general principle of legal certainty and ensuing limits to the direct applicability of EU provisions.  Second, I will explore whether the ECJ can still withdraw from its stance taken in Taricco I without opening the Pandora’s box of exceptions to the EU law primacy: either due to national constitutional identity (Article 4(2) TEU) or higher national standards of fundamental rights’ protection (Article 53 of the Charter of Fundamental Rights).  Continue reading

Two instruments but a difficult relationship? Some upcoming decisions of the CJEU on the ne bis in idem

By Michele Simonato

The principle of the ne bis in idem in criminal matters (i.e. the right not to be prosecuted or punished twice for the same criminal conduct) is a key safeguard against arbitrary use of the ius puniendi. Furthermore, it offers an interesting perspective from which we can observe the development of an area of freedom, security and justice in Europe, and how the relationships between the two main European human rights instruments – the Charter of Fundamental Rights of the EU (‘CFREU’) and the European Convention of Human Rights (‘ECHR’) and the related case law emanating from the courts of Luxembourg and Strasbourg – are evolving. Indeed, the way in which the CJEU will answer in the near future the questions that are submitted to it in several pending cases (see cases C-524/15, Menci; C-537/16, Garlsson et al.; C-596/16 and C-597/16, Di Puma) might have a ‘constitutional’ impact that goes well beyond the ne bis in idem principle. This post will take a closer look at some of these pending questions. Continue reading

POMFR: Limits to EU Powers: A Case Study of EU Regulatory Criminal Law (Jacob Oberg; Hart Publishing 2017)

 Limits to EU Powers: A Case Study of EU Regulatory Criminal Law by Jacob Oberg (Hart Publishing 2017, ISBN 9781509903368) £64.99

By Christopher Harding

In these days of burgeoning specialist discussion and publication of what is now firmly embedded under the title ‘EU criminal law’, Jacob Oberg’s book stands out as a distinctive contribution to the debates, with some real potential to drive forward policy and law. Broadly speaking, this work presents a strategy for a project which is in some respects bold and inventive – the legal (and hence constitutional) testing of policies and legal measures of criminalisation. And here we are talking about criminalisation in a novel and different context, that of EU policy and law. It is also a response to the significant, but still unheralded and poorly appreciated entry of the EU into that domain. So there is a real need for outward looking and engaging accounts of a subject on which debate is still really confined to a small quarter. Continue reading

Brexit, Fundamental Rights And The Future Of Judicial And Police Cooperation

By Cristina Saenz Perez

The future of EU-UK judicial cooperation in criminal matters is far from certain. In her Florence speech, Theresa May affirmed that one of the goals of the UK government was to establish a “comprehensive framework for future security, law enforcement and criminal justice cooperation” after Brexit. In the government’s ‘Future Partnership Paper’, the government also expressed the need of concluding a separate agreement that guarantees the future of cooperation in police and security matters between the UK and the EU. Despite all the efforts, the latest decisions have shown how difficult an agreement in this area will be. Continue reading

Neues aus dem Elfenbeinturm: September 2017

PhD Seminar “The EU Area of Freedom, Security and Justice”

University of Basel, 16-17 November 2017. Deadline for abstract submissions: 30 September 2017.

Conference “ Cross-border Mergers Directive: EU perspectives and national experiences”

University of Cyprus, 7 October 2017.

Conference “The Legitimacy of Unseen Actors in International Adjudication”

The Hague/University of Leiden, 26-27 October 2017. Registration required.

Symposium “External Challenges to the Common Fisheries Policy”

University of Edinburgh, 18 May 2018. Deadline for abstract submissions: 30 November 2018.

Neues aus dem Elfenbeinturm: June 2017

Call for papers “The Process of European Integration between Limits and Antinomies: Citizenship, Immigration and National Identities”

Review “Freedom, Security & Justice: European Legal Studies”. Deadline for abstract submissions: 30 June 2017.

Call for expressions of interest – Members of the Scientific Committee of the Fundamental Rights Agency

Vienna. Deadline for applications: 7 July 2017.

Workshop on “Current and Future Challenges of EU Agencification”

Brussels, 20 September 2017. Deadline for abstract submissions: 7 July 2017.

EJLS 10th Anniversary Conference Call for Papers “60 Years of European Integration: Reflections from Young Legal Scholars”

European University Institute, 16 November 2017. Deadline for abstract submissions: 15 July 2017.

Call for submissions “Trade, Law and Development”

Deadline for submissions: 20 September 2017.

Neues aus dem Elfenbeinturm: March 2017

Doctoral Workshop “The EU as a Global Actor in …”

University of Geneva, 6-7 July 2017. Deadline for abstract submissions: 27 March 2017.

Conference “Article 7 TEU, the EU Rule of Law Framework and EU Values: Powers, Procedures, Implications”

University of Warsaw, 13-15 September 2017. Deadline for abstract submissions: 30 April 2017.

Conference “Economic Evidence in Competition Law and the Future of the ‘More Economic Approach’”

University College London, 12 May 2017. Deadline for registration: 10 May 2017.

Call for Papers “Comparative Constitutional Law and Administrative  Law Quarterly”

Deadline for submissions: 10 May 2017.

Summer School on EU Immigration and Asylum Law and Policy

Brussels, 3-14 July 2017. Deadline for applications: 10 June 2017.

Summer School “People on the Move in an Evolving Europe – EU Law and Policy on Mobility, Migration and Asylum”

University of Fribourg, 21-25 August 2017. Deadline for applications: 15 April.

Terror and Exclusion in EU Asylum Law Case – C-573/14 Lounani (Grand Chamber, 31 January 2017)

By Stephen Coutts

The on-going conflict in the Middle East has profound implications for the global legal order in two areas of law in particular: asylum law and anti-terrorist law. The European Union and EU law have not been immune from this development and in many respects are closely affected by these geopolitical developments and their legal impact. After a fitful start, the EU has become a major actor in the area of criminal law, and in particular anti-terrorist law, on the one hand and in asylum law on the other.[1] The two fields meet in Article 12(2)(c) of the Qualification Directive, itself reflecting Article 1F of the Geneva convention,[2] providing that an individual shall be excluded from eligibility for refugee status for acts contrary to the principles and purposes of the United Nations, acts which have been held to include acts of terrorism. Furthermore, Article 12(3) of the Qualification Directive extends that exclusion to ‘persons who instigate or otherwise participate in the commission of the the crimes or acts’ mentioned in Article 12(2). The status of terrorist and refugee are legally incompatible and mutually exclusive; one simply cannot be a terrorist and also a refugee. What, however, constitutes a terrorist for the purposes of Article 12 of the Qualification Directive? That essentially is the question at stake in Lounani. Continue reading

Neues aus dem Elfenbeinturm: January 2017

Conference “How deep is your law? Brexit. Technologies. Modern conflicts”

Vilnius, 27-28 April 2017. Deadline for abstract submission: 1 February 2017.

Call for Papers: German Law Journal Special Issue “Constitutional Identity in the Age of Global Immigration”

Deadline for abstract submissions: 15 February 2017.

Conference: ” Post-Brexit Britain in A World of Preferential Trade Agreements “

University of Birmingham, 24 February 2017. (Free) registration necessary.

Call for Papers: Austrian Review of International and European Law

Deadline for submissions: 1 March 2017.

Workshop “European Standardisation for Internal Market and its Constitutional Challenges”

Lund University, 6-7 April 2017. (Free) registration necessary.

Opinion 1/15: AG Mengozzi looking for a new balance in data protection (part II)

By Maxime Lassalle

The AG’s proportionality test

After these general considerations, the AG starts his proportionality test. In the opinion nine points are considered separately (para. 210). From this analysis, three main elements deserve to be emphasized. Continue reading

Opinion 1/15: AG Mengozzi looking for a new balance in data protection (part I)

By Maxime Lassalle

On 8 September 2016, Advocate General (AG) Mengozzi delivered his much awaited opinion on the agreement between Canada and the European Union on the transfer and processing of Passenger Name Record (PNR). It follows the European Parliament’s resolution seeking an Opinion from the Court of Justice of the European Union (CJEU) on the compatibility of the agreement with the Treaties. Even though the opinion concludes that the agreement has many loopholes, it could disappoint those who were expecting a strong condemnation of PNR schemes as such.

This blogpost intends to present the context of this procedure and the main elements of the AG’s opinion before analysing them. The question of the appropriate legal basis for the agreement, also raised by the Parliament, will not be addressed. However, before turning to the AG’s opinion, we need to briefly sketch the background of the proposed agreement. Continue reading

Brexit, Europhobia and Xenophobia

By Christopher Harding

One of the most worrying aspects of the recent campaigning in the UK ahead of the referendum on UK membership of the EU, and the subsequent outcome of the referendum, was the opportunity provided to express more openly and forcibly feelings which appeared to be Eurosceptic or even more deeply Europhobic or xenophobic. On the one hand, public opinion in the UK has long been considered insular and Eurosceptic, but the referendum seemed to trigger the more open and confident expression of xenophobic views and suggests a polarisation of opinion on Britain’s international and European roles. On the other hand, Britain also has a reputation as a welcoming and tolerant society in its general attitude towards those from other countries. This contribution is a reflection on the reality of tolerance and intolerance in contemporary British society and how recent events in the UK fit into the wider European legal and cultural landscape of human mobility across frontiers. Continue reading

Neues aus dem Elfenbeinturm: August 2016

PhD Forum “Law and Governance in a Crisis-Ridden Union

Netherlands Institute for Law and Governance, Vrije Universiteit Amsterdam, 17 November 2016. Deadline for abstract submissions : 4 September 2016.

Call for papers “The Migration Crisis as a Challenge for Democracy

Centre for Direct Democracy Studies, University of Białystok. Deadline for abstract submissions : 10 September 2016.

The future of national data retention obligations – How to apply Digital Rights Ireland at national level?

Note by the editors: we will take a short break over the summer and resume blogging in the week of 16 August

By Vanessa Franssen

On 19 July, Advocate General (AG) Saugmandsgaard Øe delivered his much awaited opinion on the joined cases Tele2 Sverige AB and Secretary of State for the Home Department, which were triggered by the Court of Justice’s (CJEU) ruling in Digital Rights Ireland, discussed previously on this blog. As a result of this judgment, invalidating the Data Retention Directive, many Member States which had put in place data retention obligations on the basis of the Directive, were confronted with the question whether these data retention obligations were compatible with the right to privacy and the right to protection of personal data, guaranteed by Articles 7 and 8 of the EU Charter of Fundamental Rights (Charter). Hence, without a whisper of a doubt, several national legislators eagerly await the outcome of these joined cases, in the hope to get more guidance as to how to apply Digital Rights Ireland concretely to their national legislation. The large number of Member States intervening in the joined cases clearly shows this: in addition to Sweden and the UK, no less than 13 Member States submitted written observations. The AG’s opinion is a first – important – step and thus merits a closer look. Continue reading

Neues aus dem Elfenbeinturm: May 2016

The Presumption of Innocence (and the Right to be Present at Trial) Directive

By Stijn Lamberigts

The recently adopted Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings (the Presumption of Innocence Directive) is the fourth Directive on the procedural rights of suspected and accused persons in criminal proceedings. After the Translation and Interpretation Directive, the Right to Information Directive and the Access to a Lawyer Directive, this new Directive tries to enhance the right to a fair trial through the adoption of common minimum rules on certain points of the presumption of innocence and the right to be present at trial (Recital 9). This should result in an increased trust between the Member States (MS) in the field of criminal justice and thereby facilitate mutual recognition. Whether this will be achieved by the Directive, will depend on the MS’s implementation efforts and the Court of Justice’s guidance on its interpretation.   Continue reading

Kingdom of Spain v. Council: another piece in the “Schengen puzzle”

By Angelo Marletta

The current European migratory crisis shows how politically sensitive the surveillance of the EU’s external borders is and the dramatic human consequences of the failures of that surveillance. On the one hand, border surveillance is essential to obtain situational awareness and to build an effective border policy. Border surveillance can indeed provide data and patterns to analyze and forecast migratory flows and to coherently plan actions to deal with them. Under EU Law, the surveillance of the External Borders is based on the Schengen acquis.

On the other, failures of surveillance can negatively impact the whole system of border management and, more concretely, the lives of migrants. Notwithstanding the relatively close distances between its shores, the Mediterranean is by far the deadliest sea border for migrants.

In Kingdom of Spain v. European Parliament and Council (C-44/14, 8 September 2015) the Grand Chamber of the Court of Justice (‘CJEU’) delivered its third judgement on Protocol 19 to the TFEU (‘Schengen Protocol’) addressing an essential element of the Schengen cooperation on border surveillance: the European Border Surveillance System – in short, EUROSUR. Continue reading