Category: EU constitutional law

Neues aus dem Elfenbeinturm: July 2019

Conference “EU Agencies as ‘Inbetweeners’? The Relationship between EU Agencies and Member States”

Maastricht University, 4-5 December 2019. Deadline for abstract submissions: 31 July 2019.

3rd Young European Law Scholars Conference “Shaping the Future of Europe”

University of Salzburg, 27-28 February 2020. Deadline for abstract submissions: 1 September 2019.

Conference “Application Of The Succession Regulation In The EU Member States”

University of Silesia, Katowice, 12 September 2019. Deadline for registration: 2 September 2019.

Yearbook of European Law Annual EU Law and Policy Conference “EU Law in the era of the Fourth Industrial Revolution”

University College London, January 2020. Deadline for draft paper/extended abstract submissions: 8 September 2019.

Wolves and the Habitats Directive, a misread opinion in C-674/17?

By Anna Heslop

On 8 May the CJEU issued an Advocate General’s Opinion in case C-674/17 Luonnonsuojeluyhdistys Tapiola, on the hunting of Wolves in Finland.  With the final decision of the court due in the coming weeks it is useful to analyse whether the nuance of that opinion is being lost in the public reaction by interested groups, who have taken it as a green light for hunting protected species.

The Habitats Directive (Directive 92/43/EEC on the conservation of natural habitats of wild fauna and flora) requires member states to establish a system of strict protection for animal and plant species listed in Annex IV of that Directive, including Canis Lupus – Wolves[1].  Article 16(1) allows member states to derogate from that strict protection in limited circumstances and provided certain stringent tests are met.  There must be no satisfactory alternative, the derogation must not be detrimental to the maintenance of the population at favourable conservation status in their natural range and derogations may only be applied for specific reasons, in summary:

  1. in the interests of protecting wild flora and fauna and conserving natural habitats;
  2. to prevent serious damage to crops, livestock, forests, fisheries and water;
  3. in the interests of public health and public safety, or for other imperative reasons of overriding public interest;
  4. for the purposes of research or education, for example for repopulation or reintroduction;
  5. to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens in limited numbers specified by the competent national authorities.

These derogations have been the subject of a number of legal cases over the years, and the case law of the CJEU makes it clear that any derogations should be interpreted strictly (see e.g. C-6/04, para. 111 and C-508/04, para. 110).

Case C-674/17 concerns a preliminary reference from the Supreme Administrative Court of Finland for guidance on the interpretation of Article 16(1)(e) of the Habitats Directive in relation to derogations for the hunting of wolves.  A final decision in the case is awaited in the coming weeks. Continue reading →

Vers une intelligence artificielle « fabriquée en Europe » : pistes d’action et lignes directrices éthiques

By Alyson Berrendorf

L’intelligence artificielle (IA) est une nouvelle donnée qu’il n’est – depuis plusieurs années – plus possible de négliger. La croissance de la puissance de calcul, la maximisation ainsi que la disponibilité des données, la rapidité de traitements des informations et les progrès réalisés dans les algorithmes ont fait de l’IA l’une des technologies les plus stratégiques du 21ème siècle. Face à ce constat, l’Union européenne se doit ne pas rater cette révolution technologique, et, mieux encore, elle se doit de devenir un acteur de pointe sur la scène internationale afin de développer une IA performante, éthique et sûre, au profit tant du citoyen (dans sa vie privée et professionnelle) que de la société dans son ensemble.

A cet effet, la Commission européenne a pris plusieurs initiatives ces deux dernières années. La communication de la Commission européenne intitulée « L’intelligence artificielle pour l’Europe », publiée en avril 2018, préconisait de ce fait une stratégie européenne à l’appui de cet objectif, ainsi qu’un plan coordonné pour le développement de l’IA en Europe, présenté en décembre dernier. Plus récemment encore, en avril 2019 cette fois, la Commission a encore franchi une étape supplémentaire en souhaitant lancer sa phase pilote afin de faire en sorte que les lignes directrices en matière éthique pour le développement de l’IA sûre puissent être concrètement mises en œuvre dans la pratique (COM(2019) 168 final).

Au travers de ce bref article, nous ferons une première évaluation des diverses avancées concernant le déploiement de l’intelligence artificielle au sein de l’Union européenne. Nous analyserons notamment le fil conducteur de ce plan, ainsi que la liste d’évaluation et les lignes directrices en matière d’éthique récemment mises en avant par le groupe d’experts indépendants de haut niveau sur l’intelligence artificielle, afin de générer, selon leurs termes, « une IA digne de confiance » et « axée sur l’humain ». Face à cette dénomination, une question mérite d’être soulevée… Une IA axée sur autre chose – ou pour le dire autrement, une IA au service d’autre chose que l’humain – est-elle possible ? Continue reading →

Thickening up judicial independence: the ECJ ruling in Commission v. Poland (C-619/18)

By Marco Antonio Simonelli

On the 24 June, the European Court of Justice (‘the ECJ’ or ‘the Court’) delivered the long-awaited judgment in Commission v Poland (C-619/18). This judgment represents the most significant offspring of Associação Sindical dos Juízes Portugueses (‘ASJP’); the ECJ in fact, for the first time declared the incompatibility of a national provision on the ground that it violated Article 19 TEU. Whoever has followed the proceedings since the beginning could not be surprised by this outcome – as the interim measure of the 19 October 2018 largely anticipated it – yet the judgment is much more than a simple application of the principles set out in ASJP. The judgment indeed makes clear that the legitimacy of any restriction of the principle of judicial independence is subject to a proportionality scrutiny, but at the same time it seems to consider judicial independence as a quasi-absolute value. Also, the ECJ took the chance the define the contours of Article 19 TEU scope of applicability; thus consolidating its Article 19 TEU case law. Continue reading →

AG Opinion on C-18/18: Towards private regulation of speech worldwide

By Paolo Cavaliere

The case of Glawischnig-Piesczek v Facebook offers the opportunity for the Court of Justice to clarify the personal and material scope of monitoring obligations that may be imposed on Internet intermediaries, i.e. those private entities that ‘give access to, host, transmit and index content originated by third parties’.  The decision of the Court will determine whether domestic courts can impose monitoring obligations on digital platforms, and of what nature, and how much power courts should be given in imposing their own standards of acceptable speech across national boundaries. The opinion of the Advocate General, rendered earlier this month, raises some concerns for on-line freedom of expression because of its expansive approach to both monitoring obligations and jurisdictional limitations. Continue reading →

Neues aus dem Elfenbeinturm: June 2019

Conference “The protection of economic, social and cultural rights in the age of exits”

The Hague, 21-22 November 2019. Deadline for abstract submissions: 30 June 2019.

Workshop “Judicial and extra-judicial challenges in the EU multi- and cross-level administrative framework”

Maastricht University Brussels Campus, 8-9 July 2019. Registration necessary.

Workshop “EU Trade Agreements and the Duty to Respect Human Rights Abroad”

Asser Institute, The Hague, 11 December 2019. Deadline for abstract submissions: 15 July 2019.

Conference “Constitutional interpretation in European populist regimes ‒ new methods or old tools for new purposes?”

Budapest, 5-6 December 2019. Deadline for abstract submissions: 31 July 2019.

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 →

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 →

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.

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 →

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 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 →

Neues aus dem Elfenbeinturm: February 2019

Radboud Economic Law Conference “New Directions in Competition Law Enforcement”

Radboud University, 24 May 2019. Deadline for abstract submissions: 22 February 2019.

Doctoral Workshop “Bilateralism versus Multilateralism”

University of Geneva, 19-20 September 2019. Deadline for abstract submissions: 15 March 2019.

Summer School “Human Rights in Theory and Practice”

University of Leipzig, 1-7 September 2019. Deadline for early bird registration: 31 March 2019.

American Society of Comparative Law Annual Meeting “Comparative Law and International Dispute Resolution Processes”

University of Missouri, 17-19 October 2019. Deadline for abstract submissions: 20 May 2019.

A Parallel Universe: Advocate General Bot in Opinion 1/17

By Harm Schepel

Introduction

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]

Continue reading →

AG Bot in Opinion 1/17. The autonomy of the EU legal order v. the reasons why the CETA ICS might be needed

By Szilárd Gáspár-Szilágyi

  1. Background

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 →

Neues aus dem Elfenbeinturm: January 2019

Conference “La coopération opérationnelle en droit pénal de l’Union européenne”

University of Nantes, 1 February 2019. Deadline for registration: 25 January 2019.

Workshop “Re-conceptualizing Authority and Legitimacy in the EU: New Architectures and Procedures to Reconnect the Union with its Citizens”

LUISS Guido Carli, 1 February 2019. Deadline for registration: 28 January 2019.

Conference “EU Law, Trade Agreements, and Dispute Resolution Mechanisms: Contemporary Challenges”

King’s College London, 21-22 March 2019. Deadline for abstract submissions: 10 February 2019.

Conference “Exit! Il recesso dai trattati multilaterali”

University of Milan, 1 April 2019. Deadline for abstract submissions: 11 February 2019.

Conference “The fight against impunity in EU law”

University of Turin, 14-15 February 2019.

Conference “Constitutional Challenges in the Algorithmic Society”

EUI/University of Florence, 9-11 May 2019. Deadline for abstract submissions: 15 February 2019.

Doctoral Workshop/Seminar “The Rule of Law”

University of Milan, 4-5 July 2019. Deadline for abstract submissions: 10 March 2019.

Part IV Mini-Symposium on EU Citizenship in the Shadow of Brexit: (EU Withdrawal) Texts, Pretexts and Epignosis in the United Kingdom

By Dora Kostakopoulou

In the domain of politics, trial and error are frequent occurrences. Through trial and error we tend to discover that political decisions, policy choices and even customary ways of doing things are no longer sustainable and thus in need of revision. There is nothing wrong in recognising mistakes or misjudgments and changing course. The doors of perception are not always fully open for human beings; information asymmetries, errors of judgement, ideological standpoints and self-interest often lead individuals to poor visualisations of the future and thus to imprudent actions. Continue reading →