All is clear, then: CETA’s Investment Chapter is perfectly compatible with EU Law. According to Advocate General Bot, the agreement is wholly separate from the normative (as opposed to the factual) universe of EU law, and merely protects readily identifiable ‘foreigners’ investing in the EU in the same way as it protects readily identifiable ‘European’ investors in foreign lands. From what we know of the hearing, the Advocate General provides not much more than a useful summary of the talking points offered by the Council, the Commission and the vast majority of the 12 intervening Member States, remarkably united in a bid to save the EU’s new external trade and investment policy. Clearly, the pressure on the Court to follow suit will be enormous. And yet. It is true, CETA builds strong fences to make good neighbors. But let spring be the mischief in me: CETA cannot wall out what EU Law walls in.[i]
The EU’s exercise of its post-Lisbon competences over foreign direct investment (FDI) has been anything but smooth. In Opinion 2/15 the CJEU clarified the EU and Member State competences over the EU’s new generation free trade and investment agreements, resulting in the splitting of the EU‑Singapore agreement into a separate trade and investment agreement. Then, in Achmea the Court found investor-state arbitration (ITA) clauses under intra-EU BITs to be incompatible with EU law, which will result in the termination of almost 200 intra-EU BITs and the non-enforcement of ITA awards rendered under them within the EU. Now, everyone is anxiously awaiting the outcome of Opinion 1/17 – requested by Belgium under the insistencies of Wallonia – and whether the Investment Court System (ICS) under CETA is compatible with EU law. This opinion will not only affect the entry into force and conclusion of the trade and investment agreements with Canada, Singapore, Vietnam and Mexico, but it will have broader implications for the multilateral ISDS reform process and the EU’s investment policy.
Therefore, Advocate General Bot’s extensive opinion delivered on 29 January 2019 (first commentaries here and here) in which it found the CETA ICS to be compatible with EU law deserves scrutiny. I will only focus on the AG’s arguments concerning the exclusive jurisdiction of the Court of Justice over the definitive interpretation of EU Law. In a separate post, Harm Schepel will focus on the AG’s arguments on non‑discrimination. Continue reading →
On 9 October 2018, the Civil Division of the The Hague Court of Appeal in the Netherlands has delivered its judgment on the appeal of the ‘Urgenda case’ The Court imposed an order to act on the Dutch government to adjust its policy from 20% to achieve a 25% emission reduction by 2020, compared to 1990 levels (paras 51 and 75). The judgment confirmed the initial ruling in favour of Urgenda in 2015.[i] The consequences for Dutch climate, energy and environmental policy and potentially for climate mitigation efforts worldwide are potentially far-reaching, regardless of possible further appeals by the Dutch government. This ruling raises important questions with respect to the interpretation of Dutch and European Union law, their interrelationship, and possible transferability to other national jurisdictions. In this Commentary, we discuss these issues in turn, starting with a brief synthesis of the judgment.
All eyes were on the Wightman case in recent days. This may have somewhat overshadowed a second interesting development: On Friday 7 December the Swiss government (the Federal Council) decided to publish the result of its negotiations with the European Union on a Framework Agreement (FA) for their bilateral relationship. Such an agreement would form a sort of governing structure for the most important of the Bilateral Agreements that currently link the EU and Switzerland.
There is a complex political context to the negotiations of this draft agreement that I will deliberately leave aside for the present post (see for a recent overview over Swiss-EU relations here). To put it in a nutshell, since 2008 the EU requests this step from Switzerland, and since 2014 the EU and Switzerland have been negotiating a special agreement to cover the most crucial current and future (market-access oriented) agreements among the Bilateral Agreements currently in force between Switzerland and the EU. The goal is to create a more reliable framework (1) for Switzerland’s incorporation of EU legal acts in the relevant domains, (2) for the uniform interpretation and application of the Agreements and the EU law referenced therein, (3) for the surveillance of the application of those norms and (4) for the settlement of disputes (Article 1 (3) FA). Presently, I want to highlight two elements that seem to be of relevance beyond the confines of Swiss-EU relations: the solution found for the interpretation and dispute settlement of the FA and the law it covers. Continue reading →
On 10 December 2018, the European Court of Justice (ECJ) delivered its judgment in the Wightman case on the revocation of a notification of an intention to withdraw from the EU under Article 50 TEU. Extraordinarily, the expedited process adopted by the CJEU upon the request of the referring Scottish Inner Court of Session has seen a judgment delivered barely three months after the original preliminary reference request was made in the domestic judgment on 21 September 2018. This is a reaction to the time-sensitivity of the political end-game of Brexit. The UK House of Commons had been scheduled to hold its ‘meaningful vote’ on adoption of the Withdrawal Agreement and political declaration on the future relationship on 11 December before the postponement of this vote by the government. This vote provided the factual background to the dispute in the case. The petitioners, including Scottish MPs, sought an answer to the question of whether legally there existed the third option of revocation rather than the dichotomy of either accepting the Withdrawal Agreement or else exiting the EU via the automatic operation of Article 50(3) TEU upon the elapse of the two-year time period on 29 March 2019. The full-court judgment has upheld the Advocate-General’s Opinion of 4 December that a Member State is free to revoke unilaterally a notification of intention to withdraw from the EU made under Article 50(2) TEU. Indeed, the final judgment has recognised a right to revoke that is even more receptive to the sovereign discretion of the withdrawing Member State than in the Opinion. This post will first summarise the judgment, before providing some comments thereupon. The Wightman decision has filled a lacuna in EU law; it remains to be seen whether this legal clarity will help to assuage the political chaos currently engulfing the United Kingdom. Continue reading →
A few days before the vote in the House of Commons on the Withdrawal Agreement, scheduled for December 11th, 2018, the debates are still vivid both in the United Kingdom and the European Union. The possibilities of holding a second referendum or stopping the withdrawal process have been repeatedly raised as alternatives should the Withdrawal Agreement be rejected by the House of Commons.
In this context, the pending case Wightman and others before the Court of Justice of the EU is of crucial importance. After the judgment of the UK Supreme Court in R (Miller) v Secretary of State for Exiting the European Union, which followed the submissions of counsel regarding the irrevocability of a withdrawal notification, the request for a preliminary reference from the Inner House of the Court of Session in Scotland could be a game changer. The Opinion of Advocate General Campos Sánchez-Bordona delivered on December 4th, 2018, invites the Court to rule in favour of the possibility for the UK to unilaterally revoke its notification of withdrawal, potentially opening up a third way. Continue reading →
In the landmark judgement Commission v France rendered on the 8th of October, the Court of Justice condemned for the first time a Member State for a breach of Article 267(3) TFEU in the context of an infringement action, after the French administrative supreme court (Conseil d’Etat) failed to make a necessary preliminary reference. This decision is undoubtedly a crucial step towards a more complete system of remedies in the EU legal order, but may, upon closer examination, lead to detrimental consequences for judicial dialogue. Continue reading →
Compulsory retention, by ICT-providers, of all non-content user and traffic data, to ensure that that data will be available for subsequent use by law enforcement or intelligence, has been a controversial issue in the EU for several years now. On 19 July 2018 the Belgian Constitutional Court requested a preliminary ruling from the CJEU. Basically, it asks the EU Court to further clarify its earlier case law. The Belgian constitutional judges indicate that they find some aspects of the CJEU’s previous decisions puzzling and they also offer a new angle by explicitly linking the matter to the positive obligations of member states under the European Convention on Human Rights. The implied suggestion seems that the CJEU did not give those obligations enough weight when it found blanket data retention obligations disproportionate. Continue reading →
On the day that Theresa May declared that withdrawal negotiations between the United Kingdom and the European Union have reached an impasse, the Inner House of the Court of Session in Scotland issued a judgment that may pave the road for a third option between no deal and May’s imperilled Chequers deal. The Scottish court decided to refer the following question in a preliminary reference to the Court of Justice of the European Union:
‘Where, in accordance with Article 50 of the TEU, a Member State has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying Member State; and, if so, subject to what conditions and with what effect relative to the Member State remaining within the EU’.
The purpose of the reference is to clarify for Members of Parliament whether it would be a legally valid option under Section 13 of the European Union (Withdrawal) Act to withhold a resolution approving any negotiated withdrawal agreement, or lack thereof, and instead vote to revoke notification under Article 50(2).
This post will summarise the reasoning of the Court of Session judgment. It will then engage with the arguments for and against the proposition that notice under Article 50(2) may indeed be revoked unilaterally. The argument will be forwarded that such a unilateral revocation by the United Kingdom should be possible, so long as a decision is made to do so in accordance with the constitutional requirements of the Member State. The post will conclude with consideration of the second limb of the conditions and effects of such a revocation for the Member State remaining within the EU. If unilateral revocation is indeed possible, it will be argued that the most desirable method of creating such a statutory power would be to include it within legislation mandating the holding of a second referendum on the question of whether the United Kingdom should leave or remain within the European Union, and to predicate its operation thereupon. Continue reading →
In these times when “strong headwinds” are blowing against the European culture of fundamental rights and the rule of law (see P. Pinto de Albuquerque), the principles of mutual recognition and mutual trust on which judicial cooperation in the EU is based have come under pressure. The CJEU and the ECtHR are increasingly called upon to address the phenomenon of “rule of law backsliding” and to strongly defend these common values.
The recent preliminary reference submitted by the High Court of Ireland in case C-216/18L.M. fits into such trend. It concerns the possibility to refuse the execution of three European Arrest Warrants issued by Polish courts against an individual, L.M., on account of the potential violation of the right to a fair trial ensuing from the latest controversial reforms of the judiciary in Poland. According to the Commission’s reasoned proposal to activate for the first time in history the procedure of Art. 7 TEU, which recently found the endorsement of the European Parliament calling on the Council to take action swiftly, the said reforms resulted in a breach of the rule of law due to, essentially, a lack of sufficient guarantees of external independence of the judiciary at all levels. Even though the application of the Framework Decision on the EAW can be suspended only after a Council’s decision under Art. 7 (1) TEU has been adopted (Recital 10 of the Framework Decision on the EAW), it is nonetheless inevitable that such circumstances may – from the viewpoint of the person subject to an EAW issued by Poland – entail a serious risk of breach of the right to a fair trial. The CJEU now has thus the opportunity to clarify whether an alleged lack of judicial independence amounts to a breach of the right to a fair trial that calls for the refusal to execute an EAW, as an exception to the principle of mutual trust.
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 →
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 →
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 →
Update (19/6/2018): On 19th June 2018 the Amsterdam Appeal Court decided not to refer the question of whether EU citizenship is automatically lost with Member State withdrawal to the Court of Justice of the European Union. The questions were declared ‘insufficiently concrete’ in light of the hypothetical nature of the complaint. It remains to be seen whether the legal dispute could re-surface if and when the issue of the loss of EU citizenship does become concrete when the United Kingdom’s withdrawal from the European Union is finalised. The judgment (in Dutch) can be found here, and a summary (in English) here.
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 →
A few months ago, AG Wathelet delivered a remarkable defence of investor-state dispute settlement (ISDS) in international investment agreements between Member States in his Opinion in C-284/16 Achmea. The case concerned a preliminary reference by a German court (the Federal Court of Justice, or Bundesgerichtshof) regarding the validity of an award rendered by an ISDS tribunal under the Dutch-Slovak bilateral investment treaty (BIT). This monetary award against the Slovak government was the result of the partial reversal of the privatisation of the Slovak health care system. The Opinion is the latest development in the legal controversies surrounding ISDS and EU law after the Micula cases and, of course, the recent Request for an Opinion by Belgium (Opinion 1/17) on the compatibility of CETA with the EU Treaties. Although many aspects of this Opinion merit critical commentary, this post will focus on two issues:
the question whether ISDS tribunals set up under intra-EU BITs should be seen as courts common to the Member States and are therefore fully part of the EU’s judicial system.
whether the discrimatory access to ISDS in the Dutch-Slovak BIT is compatible with Article 18 TFEU and justified under EU internal market law. Continue reading →