Category: EU constitutional law

Case C 142/16 Commission v Germany: the Habitats Directive meets ISDS?

By Laurens Ankersmit

Recently, the ECJ has found Germany in breach of its obligations under the Habitats Directive for authorising the operation of a coal-fired power plant near Hamburg, Germany without an appropriate environmental impact assessment. The case is the latest addition to a series of legal battles surrounding the environmental impact of the plant. On the one hand, the negative environmental impact, in particular for fish species in the Elbe river, has led to litigation opposing the authorisation of the plant, including these infringement proceedings before the ECJ. On the other, Swedish power company Vattenfall has opposed the environmental conditions attached to its water use permit before a national court and before an ISDS tribunal which in its view would make the project ‘uneconomical’. This post will discuss the general legal background of the case, the ECJ judgment, and comment on the wider implications of these legal battles for the relationship between investment law and EU law. Continue reading →

A Joint EU-UK court for citizens’ rights: A viable option after and beyond Brexit?

The European Law Blog will be taking a summer recess. We’ll be back end of August with new commentaries, including on key Summer developments. Please do send us on your contributions throughout this period and we will get back to you in due course. Happy Holidays to all our readers!

By Oliver Garner

Introduction

An impasse in Brexit negotiations exists between the United Kingdom and the European Union regarding the jurisdiction of the Court of Justice of the European Union. This post will consider the legal viability of a proposed solution to this stalemate: a joint EU-UK court to adjudicate upon citizens’ rights. Although the proposals have limited the substantive remit of such a potential court to citizens’ rights, due to this area being the most contentious between the EU and the UK, in principle one could envisage a joint court with jurisdiction over all aspects of the withdrawal agreement. It may be argued that such a solution would be politically unacceptable for the European Union as it allows the United Kingdom to “have its cake and eat it” through a substitute for the Court of Justice over which the withdrawing state has far more influence. However, this post will focus on the legal rather than political viability of the proposal. This post will consider the proposal with a particular focus on whether the joint court could violate the Court of Justice’s stringent conditions for protecting the autonomy of the EU legal order. A comparison will be drawn to the similar proposals for an EEA court in the original EEA agreement, and the eventually established EFTA court. Finally, beyond the United Kingdom’s withdrawal, the post will move on to consider whether the idea of a joint national and European court could provide a solution to the problems that arise from the unique composite nature of the EU legal order. Continue reading →

Neues aus dem Elfenbeinturm: July 2017

Brussels Summer School on EU competition law

Brussels, 4-9 September 2017. (Paid) registration required.

Conference « Metamorphosis of the European Economic Constitution »

University of Luxembourg, 21-22 September 2017. Registration required.

Conference « Protecting European Union Values: Breaches of Article 2 TEU and Their Consequences »

University of Warsaw, 14-15 September 2017. (Free) registration required.

Seminar : « The EU FTAs : Do you really want to know ? A dialogue on transparency »

King’s College London, 14 July 2017. (Free) registration required.

Call for papers : Special issue on European Law

Utrecht Journal of International and European Law. Deadline for submissions : 25 August 2017.

Call for papers : Comparative Constitutional Law and Administrative Law Quarterly

Deadline for submissions : 1 September 2017.

Call for papers: European Data Protection Law Review 2017 Young Scholars Award

Deadline for submissions: 15 October 2017.

Opinion 2/15: Maybe it is time for the EU to conclude separate trade and investment agreements

By Szilárd Gáspár-Szilágyi

Opinion 2/15 is already causing quite a stir in legal academia. While some take an EU law perspective, others look at it from the perspective of investment law or public international law. In this short post I will not focus on purely legal issues. Instead, I will look at the Opinion’s effects on the EU’s investment policy and propose a change in the Commission’s approach to the negotiation of international economic agreements. Continue reading →

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.

Cautious Openness: the Spanish Constitutional Court’s approach to EU law in recent national case law

By Mario García

In recent months, the Spanish Constitutional Court (SCC) has issued a series of decisions related to EU law that show an interesting combination of both openness toward the European legal order and a certain degree of apprehension to the growing role of the Court of Justice of the European Union (CJEU) in constitutional matters. In these cases the SCC has arrived at fairly pro-EU results: the SCC decided that preliminary references from Spanish courts to the CJEU take precedence over constitutional questions submitted to the SCC, and that a non-transposed, directly-effective EU Directive can be taken as a factor in the interpretation of a constitutional provision. But, as discussed below, the details subtly suggest that the SCC does not fully agree with the ways in which the CJEU has asserted its institutional position, and prefers to avoid potential conflicts in the future. Continue reading →

Neues aus dem Elfenbeinturm: May 2017

Conference on the Legitimacy of Unseen Actors in International Adjudication

The Hague, 26-27 October 2017. Deadline for abstract submissions: 31 May 2017.

Call for applications: Summer School „Fundamental Rights and EU Trade Agreements”

University Centre of Bertinoro, 25-30 June 2017. Deadline for applications: 15 June 2017.

Conference “Freedom under Pressure – Data protection and privacy, the freedom of movement in the EU and property protection”

Ghent University, 7-8 December 2017. Deadline for abstract submissions: 15 June 2017.

Workshop “Resolving the Tensions between EU Trade and Non-Trade Objectives: Actors, Norms, and Processes”

Utrecht University, 10 November 2017. Deadline for abstract submissions: 1 July 2017.

Conference “Constitutionalism in a Plural World”

University of Porto, 22-23 November 2017. Deadline for abstract submissions: 15 July 2017.

Call for Papers for the Irish Journal of European Law Volume 2017 on Brexit

Deadline for submissions: 28 July 2017.

Neues aus dem Elfenbeinturm: April 2017

Conference “Le droit pénal et la procédure pénale face aux défis de la société numérique”

University of Liège, 28 April 2017. Deadline for (partly paid) registration: 27 April 2017.

Call for papers “First EU Business Law Forum – The Influence and Effects of EU Business Law in the Western Balkans”

Széchenyi István University, 15-16 June 2017. Deadline for abstract submissions: 4 May 2017.

Call for papers “International Society for the Philosophy of Law and Social Philosophy World Congress – Peace Based on Human Rights”

Lisbon, 16-21 July 2017. Deadline for abstract submissions: 15 May 2017.

Achbita v G4S: Religious Equality Squeezed between Profit and Prejudice

By Gareth Davies

And below: Bougnaoui v Micropole: Mildly Surreal Thoughts on Competence and Clothes (particularly when worn by women)

The two cases were decided on the same day by the Grand Chamber of the Court of Justice. Although they both concern essentially the same fact set – a firm wishing to dismiss an employee who insists on wearing an Islamic headscarf – the questions referred were different, and the substantive discussion is found in Achbita. Bougnaoui, briefly noted at the end of this blog, addresses just one, odd, point: the Court confirmed that the fact that a Muslim woman wears a headscarf does not make her incapable of doing her work. That is little comfort though – since Achbita decided that she can probably be dismissed anyway.

Achbita

In Achbita v G4S the Court of Justice was asked whether a private firm could prohibit the wearing of Islamic headscarves by employees who dealt with customers, or whether this violated the ban on religious discrimination in the workplace, found in Directive 2000/78. The claimant, Ms Achbita, worked as a receptionist for G4S in Belgium. When she began wearing a headscarf she was warned that it was against company policy, which disallowed all religious, political or philosophical signs in the workplace. When she continued, she was dismissed.

The Court found that under the right circumstances a company might be entitled to have a policy of this sort. One condition was that the policy must be in writing – in the interests of certainty and clarity. Another condition was that it must apply without distinction to all beliefs. Continue reading →

Brown Bears II: Aarhus and the Charter show their teeth

By Laurens Ankersmit

In a significant win for access to justice in environmental matters, the Court’s Grand Chamber found that Article 47 of the Charter of Fundamental Rights (the right to an effective remedy), read together with the Aarhus Convention, precluded the application of national procedural rules allowing for swift decision-making at the expense of rights granted to environmental NGOs. The case’s procedural history is very complex (the Advocate General referred to it as either Kafkaesque or tilting windmills like Don Quixote, depending on your point of view), so after only a brief factual discussion I will focus on the two major constitutional issues that the Court had to deal with:

  1. The legal effects of the Aarhus Convention in the EU legal order;
  2. The meaning of Article 47 of the Charter of Fundamental Rights (CFR).

Continue reading →

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.

CJEU Case C-638/16 PPU, X and X – Dashed hopes for a legal pathway to Europe

By Margarite Zoeteweij-Turhan and Sarah Progin-Theuerkauf 

On 7 March 2017, the CJEU announced its judgement in case C-638/16 PPU (X and X / Belgium) and dashed all hopes for an extensive interpretation of the EU Visa Code in the light of the EU Charter of Fundamental Rights. To summarize the facts of the case, X and X and their three small children are an Orthodox Christian family living in rebel-held Aleppo. In October 2016 X leaves Aleppo to apply for a visa with limited territorial validity ex Article 25(1) of the EU Visa Code at the Belgian embassy in Beirut (Lebanon). The application states that the aim of entry into Belgium is to apply for asylum. X returns to his family in Aleppo immediately after lodging the application. Less than a week later, they are served with a negative decision from the Belgian authorities, against which they appeal. The court of appeal refers the case to the Court of Justice for a preliminary ruling on the interpretation of Article 25 of the Visa Code. In its rather short judgment the CJEU determines, contrary to what AG Mengozzi (see detailed analyses of this Opinion here and also here) argued with regard to this case, that the applications of X and X fall outside the scope of the EU Visa Code, even if they were formally submitted on its basis. Continue reading →

Opinion 3/15 on the Marrakesh Treaty: ECJ reaffirms narrow ‘minimum harmonisation’ exception to ERTA principle

By Thomas Verellen

On Valentine’s Day 2017, the Grand Chamber of the ECJ issued its opinion on the competence of the EU to conclude the ‘Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.’ As happens increasingly often, the Commission, on the one hand, and several Member States and the Council on the other, disagreed on the nature of the competence of the EU to conclude the agreement. The Commission considered the agreement to be covered entirely by the EU’s exclusive competences, whereas the Member States, and to a lesser extent the Council, argued that at least part of the agreement fell outside of the scope of those competences, and instead fell within the scope of the EU’s shared competences.

The distinction between exclusive and shared competences matters. Unless an agreement is covered entirely by the EU’s exclusive competences, it will most likely be concluded in the form of a mixed agreement, i.e. an agreement to which not only the EU, but also the Member States are parties. This typically is the case even when the agreement falls within the scope of the EU’s shared competences, as the Council considers that when the Commission proposes to negotiate and conclude an international agreement parts of which are covered by shared competences, the Council can opt not to exercise those competences with regard to part of that agreement, however small this part may be.[1] In such an event, the Member States must fill the gap by exercising their own competences, rendering the agreement a mixed agreement. Continue reading →

The European Citizens Initiative on a European Free Movement Mechanism: A New Hope or a False Start for UK nationals after Brexit?

By Oliver Garner

I. Introduction: A New Initiative for UK nationals After Brexit?

On 11 January 2016, the European Commission registered a European Citizens Initiative to create a “European Free Movement Instrument”. The purpose of the Initiative is to lobby the European Union institutions to create a mechanism by which individuals may be directly granted the rights of free movement provided by EU citizenship, which is currently predicated upon nationality of a Member State in accordance with Article 20 TFEU. The proposers of the Initiative – the “Choose Freedom Campaign” – outline that their intention is not to reform the nature of Citizenship of the European Union; they concede that “the EU isn’t a government, and only Nation states can issue Citizenship”. Instead, their ambition is more limited – they argue that the European Union should institute a “Universal Mechanism” in order to provide individuals with a European Union passport: “we beg the Commission to delineate a method by which all Europeans of good standing may be granted a signal & permanent instrument of their status and of their right to free movement through the Union by way of a unified document of laissez-passer as permitted by Article (4) of Council Regulation 1417/2013, or by another method”.

Although the information on the Initiative on the Commission’s website and the accompanying press release do not explicitly link the putative Free Movement Mechanism to Brexit, it seems clear that such a competence for the European Union to directly issue EU passports would address the loss of rights that will be attendant to UK nationals losing the status of EU citizenship provided to them through nationality of a Member State once the United Kingdom has withdrawn in accordance with Article 50 TEU. Continue reading →

Neues aus dem Elfenbeinturm: February 2017

Workshop Series “Current Issues in EU External Relations”

University of Luxembourg, 31 March/19 May/29 May 2017. Deadline for proposal submissions: 6 March 2017.

Conference “Comparative Public Law in Europe – Opportunities and Challenges”

University of Essex, 14 March 2017. Deadline for (free) registration: 10 March 2017.

Radboud Economic Law International Conference “Digital Markets in the EU”

Radboud University, 9 June 2017. Deadline for abstract submissions: 24 March 2017.

Summer Schools “Venice Academy of Human Rights – Economic, Social and Cultural Rights as an Answer to Rising Inequalities” and  “Venice School of Human Rights – Human Rights as Our Responsibility”

EIUC Venice, 3-12 July and 9-17 June 2017, respectively. Deadline for applications: 19/27 April 2017.

“So long (as) and Farewell?” The United Kingdom Supreme Court in Miller

By Oliver Garner

Introduction – A Timely History Lesson

On the 24th January 2017, 7 months to the day of the result of the UK’s referendum to leave the European Union, the President of the United Kingdom Supreme Court delivered the judgment in the Miller appeal. The Court held, by an 8-3 majority, that the UK Government did not have the power to give notice under Article 50 TEU to withdraw from the European Union without a prior Act of Parliament .

Lord Neuberger started the announcement in the manner of a history lecture, detailing the United Kingdom’s accession to the then European Economic Community in 1973. This was a fitting introduction to a judgment which at times reads like a lesson in the UK’s constitution. Accordingly, this lesson encompasses the place that EU law occupies within this order. This post will attempt to provide a concise summary of the magisterial judgment, before providing some comment on the salient issues relevant to EU law. Continue reading →

A Harmonised European (technical) Standard-Provision of EU Law! (Judgment in C-613/14 James Elliott Construction)

By Megi Medzmariashvili

Is a harmonised technical standard (HTS) developed in response to the Commission’s mandate, a provision of EU Law? Up until recently, this issue has not been raised before the CJEU, much to academics’ surprise working in this field.  Contractual litigation in James Elliott Construction became a trigger for the inquiry about the legal nature of HTS. The Court handed down its judgment on 27 October 2016, nine months after the Advocate General’s (AG) Opinion was published. Two blog posts discussed the AG’s Opinion and offered divergent analysis thereof.

The judgment, in essence, followed the AG’s Opinion resulting in the finding that an HTS is a part of EU law. The Court’s line of argumentation, as opposed to the AG’s, is remarkably cautious. In short, the Court regarded privately produced technical rule-HTS, as a provision of EU law.  At the same time, the ECJ was extremely keen to prevent an HTS from having effects on a contractual relationship or on the Irish Law on Sale of Goods. 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.

Tele2 Sverige AB and Watson et al: Continuity and Radical Change

By Orla Lynskey

Introduction

The CJEU delivered its judgment in Tele2 Sverige AB and Watson on 21 December 2016. The Court had been asked by a Swedish and British court respectively to consider the scope and effect of its previous judgment in Digital Rights Ireland (discussed here). The judgment reflects continuity in so far as it follows in the line of this, and earlier judgments taking a strong stance on data protection and privacy. Yet, the degree of protection it offers these rights over competing interests, notably security, is radical. In particular, the Court unequivocally states that legislation providing for general and indiscriminate data retention is incompatible with the E-Privacy Directive, as read in light of the relevant EU Charter rights. While the judgment was delivered in the context of the E-Privacy Directive, the Court’s reasoning could equally apply to other EU secondary legislation or programmes interpreted in light of the Charter. This judgment will be a game-changer for state surveillance in Europe and while it offered an early Christmas gift to privacy campaigners, it is likely to receive a very mixed reaction from EU Member States as such. While national data retention legislation has been annulled across multiple Member States (Bulgaria, Czech Republic, Cyprus, Germany and Romania), this annulment has been based on an assessment of the proportionality of the relevant measures rather than on a finding that blanket retention is per se unlawful. For those familiar with the facts and findings, skip straight to the comment below. Continue reading →

The power to conclude the EU’s new generation of FTA’s: AG Sharpston in Opinion 2/15

By Laurens Ankersmit

To say that the EU’s new generation of trade agreements (such as CETA and TTIP) is politically controversial is becoming somewhat of an understatement. These free trade agreements (FTA), going beyond mere tariff reduction and facilitating hyperglobalization, have faced widespread criticism from civil society, trade unions, and academics. It may come as no surprise therefore that the legal issue over who is competent to conclude such agreements (the EU alone, or the EU together with the Member States) has received considerable public attention, ensuring that the Advocate General Sharpston’s response to the Commission’s request for an Opinion (Opinion 2/15) on the conclusion of the EU-Singapore FTA (EUSFTA)  has made the headlines of several European newspapers.

The Opinion of Advocate General Sharpston in Opinion 2/15, delivered on 21 December, is partly sympathetic to the Commission’s arguments on EU powers, but ultimately refutes the most outlandish of the Commission’s claims to EU power vis-à-vis that of its constituent Member States. The Opinion is of exceptional length (570 paragraphs, to my knowledge the longest Opinion ever written), and contains an elaborate discussion on the nature of the division of powers between the EU and the Member States and detailed reasoning on specific aspects of the EUSFTA such as transport services, investment protection, procurement, sustainable development, and dispute settlement.

Given the breadth of the AG’s conclusions, the aim of this post is to discuss the Opinion only in relation to investment protection and to reflect upon some of the consequences for the Commission’s investment policy, perhaps the most controversial aspect of this new generation of trade agreements. Continue reading →