Category: EU constitutional law

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]

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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 →

Part III Mini-Symposium on EU Citizenship in the Shadow of Brexit: The Right of UK nationals to vote in European Parliament elections in the EU-27

By Oliver Garner 

Part II of the UK-EU Withdrawal Agreement provides extensive protection of the rights in the United Kingdom and the EU-27 that EU citizens currently derive from Article 21 TFEU. However, the Agreement is silent on the preservation of the rights to vote and stand as candidates in municipal and European Parliament elections that EU citizens derive from Article 22 TFEU. This ossifies a conception of EU citizenship as a status of passive ‘juridical objectity’ to the detriment of a conception of the status as one of political self-determination. This means that following the United Kingdom’s withdrawal from the European Union the voting rights of EU citizens within the United Kingdom and UK citizens within the EU-27 will revert to the discretion of the national legal orders. Therefore, I will argue in this piece that it would be more normatively desirable for the European Union’s legislature to adopt measures in order to preserve these electoral rights for UK citizens. The first section below will detail the arguments for why this would be acceptable, before the second section considers the legal methods by which this could be implemented. Continue reading →

Part II Mini-Symposium on EU Citizenship in the Shadow of Brexit: Political participation by EU citizens in Scotland after Brexit

By Mark Lazarowicz

Some have assumed that one of the consequences of Brexit is that EU citizens, who can currently vote in all elections in the UK except for those which choose MPs in the UK Parliament, will lose that right once, and if, the UK leaves the EU. In fact, Brexit will not automatically mean EU citizens in UK will lose the right to vote in elections for local government and the devolved legislatures. That is because the right of EU citizens to vote in local government elections is set out in the UK’s own domestic legislation. Therefore, all the rights of EU citizens to vote in other member states arises out of EU law, because that right is now contained with UK law, the fact that UK will no longer be a member of the EU does not change that provision giving EU citizens the right to vote in local elections. In that respect, they will join the citizens of many other countries who, although they have no right deriving from a treaty to vote in UK elections, nevertheless have such a right. For example Commonwealth citizens, if they have leave to enter or remain in the UK, or do not require such leave, can register, vote, and stand in all UK elections even though there may not be any reciprocal right for UK citizens to vote in elections in that Commonwealth country. Continue reading →

Part I Mini-Symposium on EU Citizenship in the Shadow of Brexit: The Brexit effect – European Parliamentary Elections in the UK

By Ruvi Ziegler

The UK is scheduled to leave the EU on 30th March 2019 at midnight, Brussels time, by automatic operation of EU law (Article 50(3) of the Treaty on European Union(TEU) and, indeed, according to section 20(1) of the UK’s EU (Withdrawal) Act 2018. Consequently, the UK will not be participating in the May 2019 European Parliamentary (EP), Elections. Its 73 MEPs, including the 3 MEPs representing Northern Ireland, will be gone. This post appraises, first, the ramifications of Brexit for electoral rights of EU-27 citizens resident anywhere in the UK as a ‘third country’ and, second, the unique electoral predicament of residents in Northern Ireland. It argues that, unless Member States (MS) act promptly, hundreds of thousands of their citizens, qua Union citizens, stand to be disenfranchised this coming May – a democratic outrage that can and should be averted. Continue reading →

Introduction to the Mini-Symposium: EU Citizenship in the Shadow of Brexit

By Oliver Garner

On 22 October 2018, New Europeans and the Federal Trust held the event ‘EU citizenship rights in the shadow of Brexit’. Since that date, the end-game of Brexit has gathered pace. On 14 November, the Draft Withdrawal Agreement and political declaration on the future relationship between the UK and the EU was published. The UK government announced that a ‘meaningful vote’ would be held in the House of Commons on 11 December, before postponing on the eve of the vote leading to the Prime Minister weathering a vote of no confidence by Conservative MPs and the announcement that the vote would be held in the third week of January. Part 2 of this Agreement provides extensive protection for the legal rights of UK nationals in the EU-27 and EU citizens in the UK; however, it may be argued that this ossifies  a conception of EU citizenship as one of juridical objectity rather than political self-determination. At the European level, the Court of Justice of the European Union held in its Wightman judgment on 10 December that the United Kingdom would be free to unilaterally revoke its notification under Article 50 in accordance with its own constitutional requirements.   Continue reading →

Dispute Settlement and Interpretation in the Draft Framework Agreement between Switzerland and the EU

By Benedikt Pirker

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 →

Case C-621/18, Wightman v Secretary of State for Exiting the European Union: The European Court of Justice confirms that Article 50 notification can be unilaterally revoked

By Oliver Garner

This piece is cross-posted by kind permission of the DCU Brexit Institute blog. The original version of the post may be accessed here.

Introduction

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 →

The Advocate-General Opinion in Wightman: Article 50 Notification to Withdraw from the European Union is Unilaterally Revocable

By Chloé Brière

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 →

The Pilatus Bank scandal: time to reconsider banking supervision, anti-money laundering and whistle-blower’s protection in the EU

By Dimitrios Kafteranis

On Monday 23 April 2018, the European Commission released its proposal on the protection of persons reporting on breaches of Union law. The proposal of the European Commission comes after pressure of the European Parliament and other organisations calling for a coherent protection of whistle-blowers at the EU level. This pressure results partially from different scandals that were revealed by whistle-blowers such as Panama Papers or the case of the Pilatus Bank in Malta. The Commission’s proposal aims to set common minimum standards to protect whistle-blowers when they report breaches of EU law. It has several legal bases and covers a wide-range of EU areas such as consumer protection, financial services and the protection of privacy and data. The reporting procedure follows the ‘classic’ three-tier model for whistle-blowing, that is reporting firstly internally, then to the designated authorities and as a last solution to the public. The text is innovative in the sense that it proposes a wide definition of the whistle-blower ranging from trainees to ex-employees. The European Commission regards whistle-blowing as an enforcement tool for the prevention, detection and prosecution of illegalities affecting EU law.

For the future, it is compelling to pursue the negotiations between the two co-legislators of the EU (European Parliament and Council) in order to follow the challenges on the question of whistle-blowing at the national and European level. These negotiations could take many years. This post aims to introduce the reader to the proposal for a Directive on the protection of whistle-blowers by cross-referring to the case of the Pilatus Bank where a journalist and a whistle-blower are involved. The purpose is to highlight that there is a need for an EU Directive on the protection of whistle-blowers and to demonstrate that the proposed EU Directive would have better protected the Pilatus Bank whistle-blower. Furthermore, this contribution will demonstrate the problematic nature of money laundering and banking supervision at the EU level. Following the creation of the Banking Union, the interconnectivity of banks is a fact and a problem in one country can create a domino effect to the others. For example, the Pilatus Bank scandal does not only concern Malta but the European banking system as a whole. Continue reading →

Antarctica: Has the Court of Justice got cold feet?

By Christina Eckes

In the period since the entry into force of the Lisbon Treaty, Member States have more and more often and more and more passionately challenged the Union exercise of external relations powers conferred to it under the Lisbon Treaty. In the words of Advocate-General Kokott in her Opinion in the Antarctica cases legal actions are fought with ‘astonishing passion’ and ‘allegation[s are made] that the Commission wished to do everything possible to prevent international action by the Member States’, as well as that ‘the Council [was] compulsively looking for legal bases that always permit participation by the Member States’ (para 75).

On 20 November 2018, the Court of Justice ruled in the Antarctica cases on two actions of annulment brought by the Commission against Council decisions approving the submission, on behalf of the Union and its Member States, to the Commission for the Conservation of Antarctic Marine Living Resources (‘the CCAMLR’) of a reflection paper and a common position on four proposals concerning the creation and study of marine protected areas. The Council was supported in its defence in the two cases by 9 and 10 Member States, respectively. The point of contention – as is the case in a growing body of post-Lisbon litigation – was not the substantive position but the question of on behalf of whom the paper and the positions at issue could be submitted: the Union alone or the Union together with its Member States. Continue reading →

Case C-713/17 Ayubi: A refugee is a refugee is a refugee (even with temporary right of residence)

By Sarah Progin-Theuerkauf

Introduction

On 21 November 2018 the Court declared a provision of the Law on needs-based minimum income protection in Upper Austria which provides that refugees with a temporary right of residence are granted less social benefits than Austrian nationals and refugees with a permanent right of residence incompatible with Article 29 of the Qualification Directive (Directive 2011/95/EU). The case is important, as the Court also highlighted that the right of refugees to equal treatment with nationals of the respective state with regard to public relief and assistance directly stems from the Geneva Refugee Convention, which does not make the rights to which refugees are entitled dependent on the length of their stay in the respective State. The Court also emphasized that a refugee may directly rely on the incompatibility of the provision with Article 29 of the Qualification Directive before the national courts. Continue reading →

Case C-244/17 – Commission v Council: the centre of gravity test revisited in the context of Article 218 (9) TFEU

By Pieter Jan Kuijper

Introduction

Case C-244/17 – Commission v Council (PCA with Kazakhstan) is one of the most recent cases in the long list of external relations cases and Opinions decided by the Court (in most cases in its Grand Chamber composition) since the entry into force of the Lisbon Treaty (beginning with Dai-Ichi Sankyo, Case C – 414/11).  These cases have covered many aspects of the horizontal balance of competences between the political institutions of the Union, as well as the vertical distribution of powers between the Union and its Member States, in the field of the external relations of the Union.

Inevitably sometimes both aspects are touched upon, as in the present case. On the one hand, there is the question of which institutions play, or should play, a role in the decision-making under Article 218(9); on the other hand questions arise which methods of decision-making should be followed, unanimity or qualified majority voting; whether this should be determined by which legal bases such decisions should be taken and which method should be used to select such legal bases. The first question seems – and is – simple at first sight, but raises an important question about democratic legitimacy. The second question seems very complicated, but – after reflection – can be easily decided on the basis of existing precedents. Continue reading →

C-416/17 Commission v France : failure of a Member State to fulfil its obligations under Article 267(3) TFEU

By Vincent Delhomme and Lucie Larripa

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 →

Joined cases C-569/16 and C-570/16 Bauer et al: (Most of) the Charter of Fundamental Rights is Horizontally Applicable

By Eleni Frantziou

The EU case law on the horizontal effect of fundamental rights is not the average lawyer’s go-to example of coherence, clarity, or adequate judicial reasoning. To give credit where credit is due, however, in a series of cases over the last year, the Court has significantly improved this state of affairs. The Grand Chamber’s judgment in Bauer et al is the most noteworthy affirmation of this change of direction so far. This post maps out what might now be safely described as the current position on the horizontal effect of fundamental rights in the European Union and attaches a threefold (mostly positive) meaning to the Bauer judgment. However, using Bauer as a springboard, it also raises two broader questions regarding the status of social rights and the non-horizontality of directives, which may require further refinement in future case-law. Continue reading →

Neues aus dem Elfenbeinturm: November 2018

RENFORCE Conference “Regulation and Enforcement in the EU: Challenges, Trends and Prospects”

University of Utrecht, 22-23 November 2018. (Free) registration necessary.

Call for Papers: Journal of International Economic Law Special Issue on Trade Wars

Deadline for proposal submissions: 30 November 2018.

Conference «Die Krise des demokratischen Rechtsstaats im 21. Jahrhundert»

University of Salzburg, 24-26 April 2019. Deadline for abstract submissions: 1 December 2018.

10th Anniversary CLEER Conference – EU external relations: Tackling global challenges?

T.M.C. Asser Instituut, 6-7 December 2018. Registration necessary.

Seminar “Assessing European Union Better Regulation”

Radboud University, 18 December 2018. (Free) registration necessary.

Conference “It takes two to tango. The preliminary reference dance between the Court of Justice of the European Union and national courts”

Radboud University, 14 June 2019. Deadline for abstract submissions: 1 January 2019.

Call for Papers: Trade, Law and Development Special Issue on Trade Facilitation

Deadline for submissions:15 February 2019.

Workshop “Law and Language in EU and International Law”

University of Fribourg, 17 May 2019. (Free) registration necessary.

Quod Licet Iovi non Licet Bovi. The Appointment Process to the Court of Justice and the Reform of Judiciary in Poland

By Marco Antonio Simonelli

On 8 October, four new Judges and two Advocates General officially entered into office at the Court of Justice of the European Union (henceforth ‘the Court’). Just two days before, the U.S. Senate had confirmed the appointment of Brett Kavanaugh to the U.S. Supreme Court. Whilst the latter process had attracted the attention of media from all over the world, the appointment of the new European judges had barely made the news. This situation is reflected also in the academic world, which, surprisingly, never showed much interest in the Court’s appointment process.[1]

However, this does not mean that the procedure set out at Articles 253-255 of the Treaty on the Functioning of the European Union (henceforth “TFEU”) is immune to criticism. Two aspects in particular appear capable to negatively affect the appearance of independence of the European Judges: the duration of the mandate – 6 years – and the lack of transparency of the whole process which is dominated by national governments. These flaws may be one of the reasons why the Court had elaborated a minimal definition of the concept of judicial independence; a definition that may need to be reshaped in order to tackle the judicial reform enacted by the Polish government.

The concerns related to the transparency of the procedure and the discretion of  national executives have been partially addressed by the Lisbon Treaty, with the creation of the s.c. Article 255 Panel. This Panel, composed of senior members of national judiciaries, former members of the Court and one person chosen by the European Parliament, is charged with the task to confirm a candidate’s suitability to perform the duties of Judge or Advocate General. Notwithstanding the undoubtedly positive effects produced by the panel on the quality of candidates, serious concerns remain regarding the transparency of its work: the Council Decision 2010/124/EU establishing the operating rules of this Panel, provides that both the hearing of the candidate and the deliberations of the body shall take place in private. Hence, the introduction of Article 255 Panel has been effectively dubbed as a form of “progress by stealth”.

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Draft Release 2 BvR 1685/14, 2 BvR 2631/14: Banking Union respects and supports the Sovereignty of the Federal Republic

By Tom Eijsbouts

Ahead of the oral hearing at the Bundesverfassungsgericht in the proceedings “European Banking Union” (on Tuesday, 27 November 2018, at 10:00 a.m.) signs can be found of the need of a slight reconsideration by the Court of some of its tenets about sovereignty and the status of the European Parliament, to which this case lends itself eminently. Here is one of the feelers for a possible outcome, as found circulating in the form of a fictional draft press release of the ruling.