Category: Institutional law

“Does the principle of the autonomy of the EU legal order allow for a Member State to revoke the notification of its withdrawal from the EU?”

By Manolis Perakis

The question whether it would be lawful for a Member State to revoke the notification of withdrawal from the EU before the two-year lapse (laid down in the third paragraph of Article 50 TEU) has, clearly, vital political, economic and social implications. Even though it cuts to the core of the philosophy governing the “ever closer Union” and the role that States and private individuals play in it, it’s also a matter to which the provision itself does not give a definite answer. Moreover, there is no case law issued on the matter by the CJEU that could contribute to the interpretation of the provision, while the UK Supreme Court seems to have posited the irrevocability of a withdrawal notification in the famous judgment issued in the case of R (Miller) v Secretary of State for Exiting the European Union [UKSC 2016/0196], foregoing the opportunity to use the preliminary reference mechanism. This absence of relevant CJEU case-law is expected to change after the Inner House of the Court of Session in Scotland decided on 21.09.2018 to refer a relevant preliminary question (see O. Garner’s analysis),

Part of the literature expressing interesting and strong legal arguments has suggested the answer to the above question to the positive (e.g. P. Craig, S. Peers, O. Garner, A. Sari). Arguing the contrary and attempting a contribution to the academic debate, this post’s point of view is based on the fundamental principle that the EU legal order constitutes an “autonomous legal system”, which is governed by its own rules enacted by its own institutions and interpreted by its established Court (C-26/62, Van Gend en Loos). It is, therefore, argued that the legal lacuna regarding the provision of revoking the withdrawal notification, leads, according to the interpretation of the provision set out in Article 50 TEU – in line with the letter and spirit thereof – to the conclusion that permitting such a revocation would contradict the principle of autonomy, regardless of whether it is unilateral or initiated upon consensus.

The present post is divided into two parts. In the first part I approach the interpretation of Article 50 TEU through its letter and spirit. In the second part I develop my argumentation concerning the critical role that the fundamental principle of autonomy should play when attempting to find the true meaning of the provision and to fill the legal gap concerning the right to revoke the withdrawal notification. Continue reading

Case C-57/16P ClientEarth v Commission: Citizen’s participation in EU decision-making and the Commission’s right of initiative

By Laurens Ankersmit

In a Grand Chamber ruling of 4 September 2018, the European Court of Justice annulled two decisions of the Commission to refuse access to documents on impact assessment reports in environmental matters. The decision is an important precedent to ensure greater transparency of the EU institutions at the early stages of legislative action – arguably the key stage of influence – and therefore a resounding win for those arguing for greater participation and influence of citizens in the EU legislative process. The judgment’s explicit recognition of this key constitutional EU value of greater participation of its citizens in the EU decision-making process in an access to documents case is therefore without doubt the most notable aspect of the ruling. It marks a major step forward for the utility for citizens of Regulation 1049/2001, especially considering the extensive restrictive case-law (in terms of transparency) in relation to other powers of the Commission under the Treaties. For transparency lawyers specifically, the finding of the ECJ that there is no general presumption of confidentiality to documents drafted in the context of a legislative initiative is significant, as is the role of the Aarhus Regulation in access to documents cases. Continue reading

Neues aus dem Elfenbeinturm: October 2018

Workshop “Justice, Injustice and Brexit”

City University of London, 19 October 2018. (Free) registration necessary.

Conference “Sustainable Business… Tested Through Dialogue”

Taranto, 12-14 December 2018. Deadline for abstract submissions: 31 October 2018.

Conference “Modelling convergence of the EU with the world: taking, receiving and becoming EU law”

City University of London, 2 November 2018. (Free) registration necessary.

Workshop on the Advocate General at the CJEU: The Linguistic Aspect

Dublin, 5 November 2018. (Free) registration necessary.

PhD Seminar “25 Years after Maastricht: Achievements, Failures and Challenges of the EU Criminal Justice Area”

University of Luxembourg, 24-25 January 2019. Deadline for applications: 15 November 2018.

Conference “Harmonisation in Environmental and Energy Law”

University of Hasselt, 28-29 March 2019. Deadline for abstract submissions: 11 December 2018.

Workshop on “Counter-Terrorism at the Crossroad between International, Regional and Domestic Law”

Bocconi University, Milan, 13-14 June 2019. Deadline for abstract submissions: 15 December 2018.

Conference “Cynical International Law?”

Freie Universität Berlin, 6-7 September 2019. Deadline for abstract submissions: 31 January 2019.

From Conflicts-Rules to Field Preemption: Achmea and the Relationship between EU Law and International Investment Law and Arbitration

By Harm Schepel

Introduction

Investment Tribunals called upon to resolve intra-EU disputes are getting used to the European Commission showing up at their doorstep to try to convince them to decline jurisdiction. Though the range of arguments is wide and varied depending on the circumstances of the case and the underlying Investment Treaties, the overarching theme is simply that EU Law reigns supreme in relations between Member States and overrides all international law commitments that individual Member States- and the EU itself in the case of the Energy Charter Treaty- have entered into.  The Commission has occasionally met with success: in Electrabel, a long learned discussion on the relationship between EU Law and the ECT was concluded with the bombshell that EU law ‘would prevail over the ECT in case of any material inconsistency’  (para. 4.191). Other times, it is summarily dismissed. ‘Should it ever be determined that there existed an inconsistency between the ECT and EU Law’, observed the Tribunal in RREEF Infrastructure, ‘the unqualified obligation in public international law of any arbitration tribunal constituted under the ECT would be to apply the former. This would be the case even were this to be the source of possible detriment to EU law. EU law does not and cannot “trump” public international law.’[i]

The most interesting point about these wide divergences between different Tribunals on rather fundamental points of EU and international law is how little they seem to matter.  In both RREEF and Electrabel and numerous other intra-EU cases, the Tribunals disposed of the matter by pointing out that, in casu, there was no relevant material inconsistency, no conflict, no need to rule on matters of EU law, no incompatibility of obligations under different Treaties, and/or nothing that could not be solved by ‘harmonious interpretation.’ It might make sense to think of this Tribunal practice as devising conflicts-rules.

There are good reasons for the Court of Justice not to want to play this game. A case by case analysis of whether a particular award passes muster through national enforcement proceedings, or a Treaty-by-Treaty analysis of whether a particular dispute settlement or applicable law clause is compatible with EU law, is bound to be time consuming and labor-intensive, and will inevitably be unpredictable and lead to legal uncertainty.    Continue reading

Achmea – A Perspective from International (Investment) Law

By Pekka Niemelä

A week has passed since the European Court of Justice (ECJ) rendered the landmark Achmea judgment. A number of posts analyzing the judgment have already appeared in the legal blogosphere (see e.g. here, here, here and here). Much of this commentary has focused on describing the Court’s reasoning and on analyzing the judgment’s broader implications. Most commentators agree that there was nothing unexpected in the Court’s conclusion that the arbitration clauses in the less than two hundred intra-EU BITs have, as the Court put it, an ‘adverse effect on the autonomy of EU law’ (para. 59).

The judgment’s reception has also varied in accordance with the view one has of the underlying purposes of investment treaties – do they promote the international rule of law or narrow corporate interests at the expense of the public interest? Accordingly, those critical of investment treaties and arbitration have welcomed the judgment, whereas the proponents of investment treaties have argued that the judgment leads to less ‘rule of law within the EU’.[1] On a higher level of abstraction, the plausibility of the Court’s reasoning also depends on the view one has of the EU in general: is it an autonomous constitutional order based on the protection of fundamental rights and certain foundational values? Or should the EU demonstrate more openness towards other international law regimes, as it is just one such regime among others? Depending on the view one has over these two intertwined general questions, Achmea can either appear as a logical corollary of EU constitutionalism or as a breach of the EU’s commitment to the international rule of law.

What this blogpost strives to do is to take issue with the Court’s understanding that arbitral tribunals interpret and apply EU law in ways that pose a threat to its autonomy. The point is not to argue that the Court’s reasoning and conclusions are incorrect, but to shed light on the ways in which arbitral tribunals have actually ‘used’ EU law, and to show that the Court’s understanding (with which most commentators sympathize) that investment arbitration poses a threat to the autonomy of EU law is somewhat inflated. Continue reading

Don’t Lead with Your Chin! If Member States continue with the ratification of CETA, they violate European Union law

By Christina Eckes

 After last week’s Achmea ruling of the Court of Justice (CJEU) Member States can no longer legally go ahead with ratifying CETA – the mixed Free Trade Agreement that the EU and its Member States agreed with Canada. Achmea casts serious doubts on the legality of CETA’s investment chapter, which allows investors from one Party to submit to an arbitral tribunal a claim that the other Party has breached an obligation under CETA. By simply going ahead with the ratification, they violate the principle of loyalty under European Union law.

On 6 March, the CJEU declared in its Achmea ruling that the investor-state-dispute-settlement (ISDS) mechanism in the bilateral investment treaty between the Netherlands and Slovakia (NL-SK-BIT) as incompatible with EU law. A request by Belgium is pending before the CJEU asking for clarification on the legality of the new Investor Court System in CETA (Opinion 1/17). Achmea is a clear indication that the CJEU in Opinion 1/17 is likely to find also the Investor Court System in CETA problematic for the autonomy of EU law.

No general obligation exists for Member States to halt national ratification of mixed agreements when their compatibility with EU is questioned before the CJEU. Yet, CETA is different. The clear indication of incompatibility in Achmea imposes an obligation on national Parliaments to halt the CETA ratification process and wait for Opinion 1/17. Continue reading

No public interest in whether the EU-Turkey refugee deal respects EU Treaties and international human rights?

By Päivi Leino and Daniel Wyatt

Introduction

The EU Treaty commits the Union to respect international human rights in both its internal and external action, and to always act as openly as possible. Despite this, the transparency of the EU institutions remains a hot-button issue, including in relation to the consummation of international agreements (or other international arrangements) that have potential human rights implications. This very issue was on display in the recent judgment of the General Court in Case T-851/16 Access Info Europe v Commission. Here, Access Info Europe, an NGO concerned about the 2016 compatibility of the EU-Turkey refugee deal with international human rights law, sought, through an access to documents request made to the Commission, to uncover the institution’s own legal analysis regarding the agreement’s legality.

The matter was no less urgent because of the General Court’s recent order in Cases T-192/16, T-193/16 and T-257/16 NF, NG and NM v European Council, which established that the deal does not count as measure adopted by one of the institutions of the EU for the purposes of judicial review under the Treaties. This leaves the matter in a legal limbo especially considering that the EU is not party to the European Convention of Human Rights and thus not subject to its external human rights scrutiny, a path effectively closed by the CJEU itself. To our knowledge, the EU Fundamental Rights Agency, the EU body that was established to provide expertise on fundamental rights, had not been consulted on the matter. It would be a clear concern to the public to uncover, if this indeed was the case, that an international arrangement that dealt with areas of fundamental importance, for example considerations of whether Turkey was a ‘safe third country’ for the purposes of the refugee regime, was concluded on the basis of hasty and incomplete legal advice—or, in the worst case, that advice that deemed the agreement illegal was ignored. It is hard to envisage a matter in which public access rules would be serving their constitutional function better.

Continue reading

The EU Single Market Information Tool: The European Commission’s new investigative power in 2018

By Gianni De Stefano and Jaime Rodríguez-Toquero

The European Commission is about to gain a new investigative power through the Single Market Information Tool (SMIT).  The SMIT will allow the Commission to request information (including factual market data or fact-based analysis) from private firms or trade associations when the Commission initiates or substantiates infringement proceedings against one or more Member State(s) that may have failed to fulfil an obligation under the applicable Single Market legislation.  This post will discuss the background of the SMIT, its purported rationale, and critically reflect on the powers granted to the Commission under the SMIT.

The Commission is at pains to clarify that the SMIT initiative does not aim to create new enforcement powers allowing it to pursue infringements of Union law in the Single Market area against individual market participants.  That said, the Single Market rules can be infringed by either Member States or private companies.  Therefore, companies responding to such information requests will not only incur administrative and financial burdens, but they will also have to be careful not to incriminate themselves in doing so, as we will see below.

Continue reading

AG Wathelet in C-284/16 Achmea: Saving ISDS?

By Andrea Carta and Laurens Ankersmit

A few months ago, AG Wathelet delivered a remarkable defence of investor-state dispute settlement (ISDS) in international investment agreements between Member States in his Opinion in C-284/16 Achmea. The case concerned a preliminary reference by a German court (the Federal Court of Justice, or Bundesgerichtshof) regarding the validity of an award rendered by an ISDS tribunal under the Dutch-Slovak bilateral investment treaty (BIT). This monetary award against the Slovak government was  the result of the partial reversal of the privatisation of the Slovak health care system. The Opinion is the latest development in the legal controversies surrounding ISDS and EU law after the Micula cases and, of course, the recent Request for an Opinion by Belgium (Opinion 1/17) on the compatibility of CETA with the EU Treaties. Although many aspects of this Opinion merit critical commentary, this post will focus on two issues:

  1. the question whether ISDS tribunals set up under intra-EU BITs should be seen as courts common to the Member States and are therefore fully part of the EU’s judicial system.
  2. whether  the discrimatory access to ISDS in the Dutch-Slovak BIT is compatible with Article 18 TFEU and justified under EU internal market law.  Continue reading

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

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.

Opinion 2/15 and the future of mixity and ISDS

By Laurens Ankersmit

Opinion 2/15 on the EU’s powers to conclude the EU-Singapore Free Trade Agreement (EUSFTA) delivered Tuesday received considerable attention from the press. This comes as no surprise as the Court’s Opinion has consequences for future EU trade deals such as CETA and potentially a future UK-EU FTA. Despite the fact that the ECJ concluded that the agreement should be concluded jointly with the Member States, the Financial Times jubilantly claimed victory for the European Union, belittling Wallonia in the process. This victory claim calls for three initial comments as there are aspects of the Opinion that might merit a different conclusion. Continue reading

Implementation of the Aarhus Convention by the EU – An Inconvenient Truth from the Compliance Committee

By Benedikt Pirker

Introduction

Arguably one of the most important international environmental agreements of our days, the Aarhus Convention (AC), obliges its contracting parties to provide access to information, public participation and access to justice in environmental matters. Based on a communication by the NGO ClientEarth, the Compliance Committee – the compliance mechanism put in place under the AC – handed down an important decision (called ‘findings and recommendations’ in the Aarhus terminology) with regard to the European Union on 17 March 2017. The present post aims to highlight the most important findings of the Committee, which – in no uncertain terms – criticized a number of features of current EU law as a failure to implement the AC. Continue reading

“In Light of the Guidelines”: Brexit and the European Council Revisited

By Darren Harvey

Introduction

Following the delivery by Sir Tim Barrow of a letter to European Council President Donald Tusk notifying the European Council of the United Kingdom’s intention to withdraw from the EU, the two-year time period within which the UK and EU shall negotiate and conclude a withdrawal agreement has commenced.

According to Article 50(2) TEU, the first step in this process is for the European Council to agree upon a set of guidelines defining the framework for the EU side of the negotiations.

A first draft of these guidelines was circulated by European Council President Donald Tusk on Friday 31st March 2017.

The purpose of this post is to follow up from a post written last October on the role of the European Council and the Brexit process. 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.

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

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: November 2016

Call for papers : The Cambridge International and European Law Conference 2017 «Transforming Institutions»

University of Cambridge, 23-24 March 2017. Deadline for abstract submission : 25 November 2016.

Call for submissions : European Journal of Legal Studies New Voices Prize

Deadline for paper submissions : 15 December 2016.

Call for papers : 6th Conference of the Postgraduate and Early Professionals/Academics Network of the Society of International Economic Law

Tilburg University, 20-21 April 2017. Deadline for abstract submissions : 30 November 2016.

Call for papers : Conference « Post-Conflict Justice in Ukraine »

Kyiv, 26-27 May 2017. Deadline for abstract submissions : 15 December 2016.