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.
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 enforcement 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:
- 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.
- 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
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.
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
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
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
By Benedikt Pirker
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
By Darren Harvey
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
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
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
Conference « New Instruments to Promote the Correct Application of the EU Charter of Fundamental Rights »
Florence, 28 October 2016. Deadline for (free) registration : 18 October 2016.
Colloquium « Les religions et le droit du travail »
Université de Rouen, 20-21 Octobre 2016. Free access.
Conference « Computers, Privacy & Data Protection : The Age of Intelligent Machines »
Brussels, 25-27 January 2017. Deadline for submissions : 22 October 2016.
Call for Papers: ESIL Conference “The Role of the European Parliament in the Conclusion and Implementation of International Agreements on International Economic Law Issues”
European Parliament, Brussels, 9 December 2016. Deadline for abstract submissions: 7 November 2016.
Call for papers : One Day Symposium on Transnational and International Environmental Crime – Synergies, Priorities and Challenges
University of Lincoln, 15 February 2017. Deadline for abstract submissions : 18 November 2016.
Call for submissions Comparative Constitutional Law and Comparative Law Quarterly
Deadline for submissions : 27 November 2016.
Housing Law Research Network 3rd Annual Housing Law Symposium: Human Rights, Housing and Dispute Resolution
Malmö University, 23-24 March 2017. Deadline for abstract submissions : 1 January 2017.
By Darren Harvey
During her speech at the Conservative Party conference on Sunday, Prime Minister Theresa May stated that the UK would be notifying the European Council of its intention to withdraw from the EU in accordance with Article 50(1) TEU by the end of March 2017 at the latest.
Earlier that day, during an interview on the BBC with Andrew Marr, the Prime Minister was asked what will happen immediately after the notification to leave the EU has been made.
The Prime Minister responded:
“Well, it’s for the European Union, the remaining members of the EU have to decide what the process of negotiation is. I hope, and I’ll be saying to them, that now that they know what our timing is going to be, it’s not an exact date but they know it’ll be in the first quarter of next year, that we’ll be able to have some preparatory work, so that once the trigger comes we have a smoother process of negotiation.”
Shortly after this announcement, European Council President Donald Tusk took to Twitter, stating that once Article 50 had been triggered, the remaining 27 EU Member States would “engage to safeguard [their] interests” – thus suggesting that no preliminary negotiations shall be conducted prior to such notification.
This exchange raises a fundamental question about the Article 50 TEU withdrawal process that has not yet been fully considered; namely, what role will the European Council play in this process? Continue reading
By Hugo Flavier and Sébastien Platon
There seems to be a common assumption (see, among many others, here 3.6, here or here at 14:00) that there is a distinction between two kinds of « post-Brexit agreements », i.e. the withdrawal agreement (the divorce settlement) and the agreement regarding the future relationship between the United Kingdom (UK) and the European Union (EU). However, this distinction is, in fact, not very clear. It raises, in particular, several questions related to the legal basis and the nature (exclusive or not) of the withdrawal agreement. This contribution aims to clarify the distinction between these two agreements and identify the legal difficulties arising from their articulation. It will be argued that, due to some legal uncertainties, the negotiators of these agreements should be careful of their respective contents. Continue reading
By Gareth Davies
If the UK withdraws from the EU, then its citizens will cease to be citizens of the Union. That much is simple – Article 20 TFEU doesn’t leave any doubt that Union citizens are those who are citizens of the Member States.
Still, while that provision was once thought to make Union citizenship dependent on national citizenship, in Rottmann the Court turned it neatly around, showing how it made national citizenship equally dependent on EU law. In that case a German citizen was faced with threatened denaturalisation, which would be likely to leave him stateless. He argued that the denaturalisation, because it also deprived him of his Union citizenship, was an interference with his EU law rights, and so should be constrained by EU law.
He won on the principle, although he probably lost on the facts: the Court said that indeed, a national measure which deprives a Union citizen of their Union citizenship clearly falls within the scope of EU law, and is therefore subject to judicial review in the light of EU law rules and principles. However, it went on to say that such a measure is not per se prohibited. It must merely be proportionate. Denaturalising fraudsters probably is, in most circumstances. Continue reading
By the editors
The British people voted by a majority of just over million people to leave the EU. Some have hailed this unprecedented decision as a return to sovereignty and a reassertion of British prominence on the global stage. Others mourn the outcome, believing it to represent a lurch towards splendid isolation and irrelevance. The vote laid bare a number of hard truths for both sides. While the close margin was largely anticipated, a negative and divisive campaign has meant that there is little common ground on which both the Remain and Leave camps can build. The results also exposed the extent of the inter-generational divide within the UK. Young voters chose by a large majority to remain while older voters chose to leave. This has led to the obvious recrimination that having reaped the benefits of EU membership for decades, older voters are depriving younger generations of these opportunities and deepening existing inequalities. The EU may, however, take some hope from this vote of confidence from the British youth.
Beyond the political, economic and social implications of the result within the UK and for the EU, the vote will have significant legal consequences. In the coming months, we will attempt to identify the legal questions that Brexit will entail. A few spring to mind: Is the UK bound to invoke the Article 50 procedure? (The political establishment in the UK appear to think not.) What happens to the international (trade) agreements concluded jointly by the EU and the UK? How will the border between Northern Ireland – which voted to Remain but will become an external border of the EU – and the Republic of Ireland be policed and what impact will this have on the Good Friday Peace Agreement? What – if any – immediate implications will this have for British MEPs, the CJEU, Commission officials, for the Council and – of course – for the British Presidency of the Council in 2017? Will Assange no longer have to fear for extradition to Sweden? What will happen to the more than one million UK citizens living and working in Europe? And what will happen to EU citizens living and working in the UK (including, for instance, professional football players)? How will the UK’s environmental law and policy be affected, as, for instance, REACH will no longer be applicable in the UK? How will the Brexit vote affect the development of the digital single market or the future funding of scientific research?
A particularly worrying feature of the UK referendum campaign, visible in the US Presidential Elections and elsewhere – is the vilification of ‘experts’ and the willing disregard of evidence. Nevertheless, as lawyers we must continue to rely on such evidence and expertise to negotiate the legal issues this vote will raise. All contributions to this blog on these legal implications are very welcome – informed expert opinion matters.
By Megi Medzmariashvili
The James Elliott Construction case brings before the Court of Justice (ECJ), for the first time, the issue of whether it is within the Court’s jurisdiction to give preliminary rulings on harmonised technical standards (HSs). This contribution will analyse Advocate General (AG) Campos Sánchez-Bordona’s Opinion in this case, in particular its potential effects on the legal status and copyright protection of HSs. It will also discuss, more generally, the legality of the delegation of rule-making powers to the European Standard Bodies (ESBs). If the Court follows the AG’s opinion it will most certainly craft a New Approach to the New Approach. Continue reading