Category: EU constitutional law

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

By Michał Krajewski

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

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

Neues aus dem Elfenbeinturm: December 2017

Conference “Constitutional Challenges in the EMU: the New Instruments of European Economic Governance”

Brussels, 29-30 March 2018. Deadline for abstract submissions: 15 January 2018.

International Electoral Observers Training

European Inter-University Centre for Human Rights and Democratisation, Venice, 19-24 March 2018. Deadline for registration: 15 February 2018.

Conference “Economic Constitutionalism: Mapping its Contours in European and Global Governance”

European University Institute, 14-15 June 2018. Deadline for abstract submissions: 28 February 2018.

Conference “Upgrading Trade and Services in EU and International Economic Law”

Radboud University, Nijmegen, 15 June 2018. Deadline for abstract submissions: 16 March 2018.

Call for papers: Utrecht Journal of International and European Law

Deadline for submissions: 9 April 2018.

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

By Eduardo Gill-Pedro

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

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

Case C-600/14, Germany v Council (OTIF). More Clarity over Facultative ‘Mixity’?

By Hannes Lenk and Szilárd Gáspár-Szilágyi

  1. Setting the context

Opinion 2/15 on the division of requisite competences between the Union and its Member States for the conclusion of the EU-Singapore FTA has most certainly caused a flurry of academic discussions. Amongst the various topics discussed, two come to mind that are important for this short analysis. First, did the CJEU intend with its reasoning to effectively abolish ‘facultative mixity’ and ‘facultative EU-only’ agreements? (see here, here and here). Second, by placing almost all aspects of the EU-Singapore FTA under exclusive EU competences, with the exception of ISDS and non-direct foreign investment, did the Court of Justice implicitly determine the future of EU trade and investment policy? (see here, here and here). In other words, with a Commission that is determined to prioritize EU-only agreements, is the conclusion of mixed investment agreements in parallel to exclusive trade agreements a logical consequence of Opinion 2/15? Continue reading →

POMFR: L. Ankersmit, Green Trade and Fair Trade in and with the EU: Process-based Measures within the EU Legal Order (Cambridge: CUP, 2017)

By Thomas Horsley

Green Trade and Fair Trade in and with the EU: Process-based Measures within the EU Legal Order, by Laurens Ankersmit (Cambridge, Cambridge University Press, 2017, ISBN 9781107191228); 294 pp.; £85.00

This monograph examines the position of ‘process-based measures’ within the EU legal order. PBMs (also known as ‘process and production method’ rules) are characterised as public and private initiatives that, in the context of international trade, seek to address environmental and social concerns that arise externally; in other words, beyond the territory of the regulating state. Examples include, bans on the importation and sale of cosmetics tested on animals; national and regional product labelling schemes; and private initiatives such as Fairtrade and the Marine Stewardship Council certification programme. Continue reading →

Neues aus dem Elfenbeinturm: November 2017

Roundtable discussion “Modelling Divergence(s) and Convergence(s) of the EU in the World”

City University, London, 24 November 2017. Registration necessary.

Conference “Citizenship, Citizenships and New Types of Personal Status: International and European Aspects, and National Developments”

University of Salerno, 18-19 January 2018. Deadline for abstract submissions: 25 November 2017.

Workshop “Unpacking the ‘Accountability Paradox’ in Expert-based Decision-making”

Erasmus University Rotterdam, 30 November-1 December 2017. Registration necessary.

Erasmus Early-Career Scholars Conference 2018 “New business models and globalized markets: Rethinking public and private responsibilities”

University of Rotterdam, 11-13 April 2018. Deadline for abstract submissions: 7 January 2018.

Call for papers: Inaugural Issue of the Nordic Journal of European Law

Deadline for submissions: 31 March 2018.

Call for papers: Comparative Constitutional Law and Administrative Law Quarterly

Deadline for submissions: 2 January 2018.

Neues aus dem Elfenbeinturm: October 2017

Call for Papers : Workshop on Challenges and Opportunities for EU Parliamentary Democracy – Brexit and beyond

Maastricht University, 18-19 January 2018. Deadline for abstract submissions : 20 October 2017.

Workshop « The Political and Legal Theory of International Courts and Tribunals »

University of Oslo, 18-19 June 2018. Deadline for abstract submissions : 1 November 2017.

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

Utrecht University, 10 November 2017. Deadline for registration: 3 November 2017.

Conference « The future of free movement in stormy times »

The Hague University of Applied Sciences, 21 November 2017. Deadline for (free) registration: 13 November 2017.

Call for Participants : European Law Moot Court 2017-2018

Deadline for team registrations : 15 November 2017.

Call for Papers: « The neglected methodologies of international law »

University of Leicester, 31 January 2018. Deadline for abstract submissions: 15 November 2017.

Call for nominations: International Society for Public Law Book Prize

Deadline for nominations: 31 December 2017.

Call for Papers : ESIL Annual Conference « International Law and Universality »

University of Manchester, 13-15 September 2018. Deadline for abstract submissions : 31 January 2018.

Cases C-643 and C-647/15: Enforcing solidarity in EU migration policy

By Daniela Obradovic

The duty of solidarity between EU Member States

Although the Court of Justice of the European Union (CJEU) long ago characterised the deliberate refusal of a Member State to implement EU law as a ‘failure in the duty of solidarity’ that ‘strikes at the fundamental basis’ of the EU legal order (Case 39/72, para. 25), it has not been clear whether the principle of solidarity among Member States can be enforced in European courts. The recent response of the CJEU to the Slovakian and Hungarian challenge (C-643 and C-647/15, the migrant quotas verdict) to the Council decision on the relocation of migrants from Italy and Greece (the relocation decision)  seems to establish that the principle of solidarity between Member States in the area of EU immigration policy can be a source of EU obligations susceptible to judicial enforcement. Continue reading →

The EP’s ‘European Standards’ Resolution in the wake of James Elliott Construction: carving ever more holes in Pandora’s Box?

By Pieter van Cleynenbreugel and Iris Demoulin

A mere three years ago, the voluntary and non-binding nature of technical standards was still deemed self-evident. Standards, it was believed, would never be seen as parts of EU law. In the meantime, however, the James Elliott Construction case (C-613/14) caused a serious crisis of faith in this regard. Holding that it has jurisdiction to interpret a European harmonised technical standard adopted by the European Committee for Standardisation (‘CEN’), the EU Court of Justice (‘CJEU’) forewarned that it would play a more active role in the interpretation and legality assessment of harmonised technical standards. In the wake of that judgment, the European Parliament in July 2017 additionally also called for more control and accountability mechanisms to be put in place, albeit in ways diametrically opposed to what the CJEU had proposed just eight months earlier. This post will compare and contrast the Parliament’s proposals with the CJEU’s approach in James Elliott Construction, inviting the European Commission to reconcile both institutions’ positions as part of its on-going modernisation initiatives in this field. Continue reading →

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.