The “act-ification” of EU law: The (long-overdue) move towards “eponymous” EU legislation

The recent release by the Commission of the draft Digital Services Act and the Digital Markets Act may have attracted significant attention from stakeholders for their substance. However, this contribution is not about the content but the titles of these acts. In the author’s opinion, these two instruments are the latest addition to an emerging trend among the EU law-makers to release, “acts” or at least “eponymous” pieces of legislation. This trend shall be referred to here as “act-ification” of EU law. This trend is to be welcomed in that it signifies a new confidence and self-assuredness of EU law. After more than half a century since it came into life, EU law now seems to feel confident enough to release “acts” or, at any event, eponymous pieces of legislation, immediately recognizable by Europeans.Continue reading

Germany’s Failing Court? – A Defence of the Bundesverfassungsgericht

Even now, it is not clear whether the saga that resulted in the historic PSPP decision in which the Bundesverfassungsgericht (the German Constitutional Court) overruled the CJEU judgment in Weiss, is truly over. As Judge Huber of the Bundesverfassungsgericht noted only last month, the legality of the PSPP, even after assessment by the German Bundestag, has yet to be confirmed, with a further challenge being brought against the PEPP, the ECB’s coronavirus emergency programme. Thus, the decision and the constitutional principles used in the German court’s ultra vires review remain highly relevant as they will likely be applied again in the near future. 

In his article, ‘Germany’s Failing Court’, Eleftheriadis offers the arguably harshest criticism of the constitutional principles the Bundesverfassungsgericht relied on in the PSPP judgment. His conclusions are quite damning for the German court, arguing that it developed ‘surprising and ultimately indefensible doctrines’ based on ‘Schmittian principles’, a characterisation that seems especially strong given Schmitt’s active involvement and support of Nazism. In this post, I examine his analysis of the concerned German constitutional principles and argue that Eleftheriadis exaggerates the scope and application of the specific German norms and principles. Though I agree with him that the proportionality analysis of the German court was quite strained, I contend that the constitutional principles are justified and warrant further scrutiny of the de-politicisation of monetary policy and the limits of the ECB’s mandate. Continue reading

CJEU clarifies the inviolability of EU and European Central Bank archives – Case C-316/19 Commission v. Slovenia

In this recent judgment, the Grand Chamber of the CJEU held that the Republic of Slovenia  (Slovenia) infringed the inviolability of the European Central Bank’s (ECB) archives by unilaterally seizing documents connected to the tasks of the European System of Central Banks (ESCB) and the Eurosystem at the premises of Slovenia’s national central bank (Bank of Slovenia). The Court also ruled that Slovenia did not sincerely cooperate with the ECB after that seizure to remedy this violation. 

The case is exceptional due to a long-running difference in view on the interpretation and application of a provision of the Protocol No 7 on the Privileges and Immunities of the Union (the Protocol) in a national legal order, but forms part of a set of cases where the Court has had to clarify certain aspects of the Protocol. In this case, the Court defined for the first time what constitutes an “archive of the Union” in primary EU law. It also elaborated on the functional and pre-emptive nature of the principle of inviolability of EU archives (Article 2 of the Protocol) and shed further light on its older case law regarding the formal process that a Member State has to follow when it seeks access to EU archives. Finally, the CJEU assessed how Member States and EU entities have to cooperate in case of a unilateral interference with the inviolability of the EU archives. The judgment is also part of a series of cases (C‑202/18 and C‑238/18 – Rimšēvičs and ECB v Latvia ECLI:EU:C:2019:139) where the Court touches upon the implications of the hybrid legal construct that the ESCB and Eurosystem represent, thereby revealing the complex interlinkages between EU law and national law in the Economic and Monetary Union.Continue reading

From Brexit to Eternity: The institutional landscape under the EU-UK Trade and Cooperation Agreement

The Trade and Cooperation Agreement (TCA) reached by the European Union and the United Kingdom has been met with relief, as it moved the two parties away from the precipice of a no-deal Brexit. It provides for a comprehensive trade deal and includes substantial provisions on cooperation on a wide range of policy fields, contrary to the UK’s original proposal. Importantly, the Agreement forms ‘the basis for a broad relationship between the Parties’ (Article COMPROV.1).

The European Commission has chosen Article 217 TFEU as the legal basis for the conclusion of the Agreement, believing that the TCA only covers areas under EU competence; therefore, ratification by member states’ parliaments is not required. Article 217 refers to so-called Association Agreements, such as the EU-Ukraine Agreement, whereas Free Trade Agreements (FTA) such as the EU-Canada CETA are usually adopted under Article 207 TFEU. The choice of legal basis might have been a practical necessity, in light of a looming no-deal Brexit. Still, the Agreement’s EU-only nature, and the institutional architecture it introduces, question the UK’s claim of the TCA being a ‘Canada-style’ deal, and draws attention to an emerging new association between the EU and UK, which can easily ‘integrate’ future –‘supplementing’– agreements (Article COMPROV.2).

Given that the current iteration of the TCA is, by virtue of its flexibility, but a starting point, we argue that its true legacy lies with the institutional landscape it establishes. Firstly, we consider the new governance ecosystem and the extent to which it is to shape the post-Brexit dynamic between the EU and the UK. Secondly, we assess the robustness of the TCA’s dispute settlement mechanism. Ultimately, we highlight the way in which this new structure of political, legal and regulatory cooperation sets the scene for future negotiations which will define EU-UK relations.

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Habemus a European Magnitsky Act

The Global Human Rights Sanctions Regime, or the so-called European Magnitsky Act, has come into effect at the beginning of December 2020, just a couple of days before Human Rights Day on the 10th of December. This sanctions framework consists of two legal acts: Council Decision and Council Regulation that provide for targeted measures against any individual involved in gross human rights violations outside the EU borders. This blog post reveals how the discussion of this mechanism evolved within the EU, what changes it introduces and what gross human rights violations will be targeted.

How did it come into being?

This mid-October, the European Commission and the High Representative for Foreign Affairs put forward the proposal for a Council Regulation on ‘EU Global Human Rights Sanctions Regime’, accompanying the Council Decision to install a specific EU-wide human rights sanctions framework. Such a mechanism is designed to allow for the punishment of serious human rights violators outside the EU borders. It consists of travel bans, asset freezes and prohibition to make funds and economic resources available to those who would otherwise escape justice under the corrupted authoritarian system. It is well-known that high-level officials and businessmen of undemocratic regimes feel comfortable securing their assets in European banks and enjoying holidays in their villas abroad. With this Act, the EU is sending a message to those holding power in authoritarian regimes that their human rights violations will not go unnoticed.

Similar Magnitsky-type frameworks were already introduced in the UK, US, Canada, and the Baltic states. Up until now, the EU did not have any horizontal mechanism for sanctioning gross human rights abuses. To punish such violations, it relied on country-specific measures (e.g. sanctions on Syria, Libya, Venezuela, Belarus, Myanmar). In 2018, the Dutch Government initiated a discussion among the EU Member States on a targeted human rights sanctions regime. This initiative received support of the European Parliament which has repeatedly called for the establishment of an EU-wide sanctions mechanism targeting human rights abusers. The debate over the EU Magnitsky Act gained impetus with the launch of the preparatory works by the European External Action Service (EEAS) in December 2019. However, the human rights sanctions regime was not brought to life back then. This was partly due to the complexity of EU decision-making procedures, which often requires unanimity or consensus for Common Foreign and Security Policy (CFSP) related matters. In her State of the Union address, Ursula von den Leyen called for a qualified-majority voting on EU sanctions.

The EU Global Human Rights Sanctions Regime is modelled after the US 2016 Global Magnitsky Act in continuation of the Sergei Magnitsky Rule of Law Accountability Act of 2012.  This Act was passed in the United States to punish Russian officials responsible for or benefitting from the death of the attorney Sergei Magnitsky who exposed a multi-million dollar tax fraud scheme involving Russian elites. His client William Browder was a man lobbying for the Magnitsky Act worldwide (you can read the story of his fight for justice described in the book ‘Red Notice’).

The attribution of the Magnitsky’s name to the EU’s final piece of legislation received some divergent feelings. Even though some found it symbolic to honour the memory of Magnitsky, EU decision-makers finally opted for a generic name to avoid any anti-Russian connotations with regard to the character of the Act.

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New year, new relationship—bespoke governance and tenuous ECHR conditionality in Part 3 of the EU-UK TCA

The clock is no longer ticking. As of 1 January 2021, the EU-UK Trade and Cooperation Agreement (TCA) is provisionally applied, heralding a new era for EU-UK relations. In addition to the widely reported provisions on tariffs, fair competition and fishing, Part 3 of the TCA contains crucial provisions on law enforcement and criminal justice cooperation, designed to assuage the impact of Brexit on the security of UK and EU nationals. Notably, it creates an extradition surrender mechanism, which has been described as ‘unprecedented for a non-Schengen third country.’ With the exception of its governance and human rights provisions, it is almost a carbon copy of the EU-Norway and Iceland Surrender Agreement.

It is no secret that governance and human rights were constant stumbling blocks to an agreement on law enforcement and criminal justice cooperation. In the following, I will consider the compromises revealed by Part 3 of the TCA on bespoke governance mechanisms and ECHR conditionality, and their implications for the new surrender mechanism.

1. Governance: the institutional structure of TCA and the role of the Partnership Council

a) The Partnership Council and the Specialised Committee on Law Enforcement and Judicial Cooperation

Article INST.1 of the TCA establishes a Partnership Council (PC), co-chaired at ministerial level by a member of the European Commission, and a member of the UK Government, with an annual meeting. The PC oversees the attainment of the objectives of the TCA, supervising and facilitating its interpretation and application. Either the UK or EU may refer to the PC ‘any’ issue relating to the implementation, application and interpretation of theTCA. Moreover, the PC has the power to make binding decisions where provided for in the TCA, as well as non-binding recommendations, and amendments to TCA itself. Article INST.2(1)(r) establishes a Specialised Committee on Law Enforcement and Judicial Cooperation (Specialised Committee)  to ‘address matters’ covered by   Part 3 of the TCA. The Specialised Committee has a key role in the governance of Part 3 of the TCA, with the power to recommend joint interpretations and actions to the PC in the event of the suspension of Part 3 of the TCA (Article LAW.OTHER.137(7)),  as well as the power to take decisions to conclude cooperation, in the event of the termination of Part 3 of the TCA (Article LAW.OTHER.136(3)). It also has various discrete powers to receive notifications from the UK and EU in relation to the surrender mechanism.

b) Principles of interpretation in the TCA: the role of public international law

Notably, there is no role for the CJEU in the institutional structure of the TCA, and it has been argued that TCA is not EU law. Article COMPROV.13  of the TCA provides that it is to be interpreted in accordance with customary rules of public international law, such as those codified in the Vienna Convention on the Law of Treaties. Two revealing articles, each commencing with the words ‘for greater certainty,’ make clear that the TCA does not create an obligation to interpret its provisions in accordance with UK law or EU law (Article COMPROV.13(2)), and an interpretation of the TCA given by a UK court or the CJEU shall not be binding on each other (Article COMPROV. 13(3)).

This is in contrast to Article COMPROV.14 of the original EU draft treaty, which provided for concepts of EU law to be interpreted in accordance with CJEU case law. Although the fact that this clause did not make it into the TCA can be attributed to the UK’s ‘red line’ on the CJEU, the autonomy of the EU legal order is also jealously guarded, as demonstrated by Opinion 2/13. It is noteworthy that Article COMPROV.15  on taking into account WTO case law equally did not make it into the TCA.

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An Order of Deferential Monism: Why the Bundesverfassungsgericht’s PSPP Ruling Merely Restates the Limits of the EU Legal System

Last year certainly was tumultuous, with ‘unprecedented times’ being but one of the many ways to describe it. For observers of EU law, a similar observation can be made regarding the Bundesverfassungsgericht’s historic judgment in May, which, for the first time in its history, overruled a CJEU judgment. Indeed, the extensive discussion of the judgment illustrates its theoretical and practical impact quite clearly. Specifically, Maduro noted back in May that the German court’s ruling will be of great importance to the principle of supremacy, the CJEU’s contention that it is the final arbiter and instance to decide on the meaning and interpretation of EU law. It is this claim that I intend to examine in further detail in this post.

It is well known that the doctrine as espoused by the CJEU in more absolute terms has never been uncontested by the very subjects EU treaties are derived from: virtually all national constitutional courts bar potentially Estonia and the Netherlands have always argued that EU law, being derived from international treaties, only has validity due to authorisation within domestic constitutional law, and that it is ultimately for constitutional courts to interpret EU law’s meaning and force and relation with national norms. Given these rival supremacy claims, the question is raised whether the ruling’s impact on the doctrine is really of that much weight, providing reason to consider the strength of the various supremacy claims. A good framework to do so is by reference to i. the posited law as laid out within the EU and national legal systems respectively, and ii. the extent to which these claims are evidenced in the institutional compliance and application of EU law.

With regards to the first reference point, both CJEU and national supremacy claims are grounded in positive law and receive legal validity from their respective system, making the claims not differing much in strength under this head. However, the claims differ in strength applying the second criterion which entails the examination of institutional compliance and application, as the relevant actors would primarily seem to be national judicial bodies. This institutional dimension would certainly favour the more limited and conditional notions of EU law’s supremacy given national courts have not only retained final authority on how EU law interacts with national norms, but also exercised it in exceptional cases.

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Top ten most-read posts of 2020

In the closing days of 2020, which has been an extraordinary year for everyone, we would like to present you the traditional European Law Blog top 10 of most-read blog posts this year. This top 10 provides us with the opportunity to celebrate the most popular blog posts, to offer an insight in the topics that have gotten the most attention from our readers, and to thank the authors who have contributed to our blog in these exceptional circumstances.

The list is clearly dominated by data protection issues, which emerge as the number one legal theme of the year. The CJEU’s judgment in Schrems II has provoked much discussion, on this blog and elsewhere, about the future of international data transfers. It is therefore no surprise that posts on this topic have been prominent amongst our readership. Data protection issues have also been discussed in relation to the Covid-19 global pandemic. In an attempt to break the chain of Covid-19 infections, many governments have launched tracing and warning apps, which has raised questions over data protection. Posts related to these issues have definitely caught the attention of our readers.

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