Court highlights strict rules in milestone ruling for wildlife protection C-674/17

On 10 October 2019 the CJEU handed down a much anticipated judgment in case C-674/17 Luonnonsuojeluyhdistys Tapiola.  This case was a preliminary reference from the Supreme Administrative Court of Finland on the interpretation of Article 16(1)(e) of the Habitats Directive (Directive 92/43/EEC on the conservation of natural habitats of wild fauna and flora).

Article 12 of the Habitats Directive requires member states to establish a system of strict protection for animal and plant species listed in Annex IV of that Directive, including Canis Lupus – Wolves.

Article 16(1) allows member states to derogate from that strict protection in limited circumstances and provided certain tests are met.  There must be no satisfactory alternative, the derogation must not be detrimental to the maintenance of the population at favourable conservation status in their natural range and derogations may only be applied for specific reasons, in summary:

  • in the interests of protecting wild flora and fauna and conserving natural habitats;
  • to prevent serious damage to crops, livestock, forests, fisheries and water;
  • in the interests of public health and public safety, or for other imperative reasons of overriding public interest;
  • for the purposes of research or education, for example for repopulation or reintroduction;
  • to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens in limited numbers specified by the competent national authorities.

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Review of Thomas Horsley’s “The Court of Justice of the European Union as an Institutional Actor: Judicial Lawmaking and its Limits” (CUP 2018)

In his monograph, Thomas Horsley tackles one of the largely unchallenged truisms of EU law and integration studies, namely that the CJEU is a constitutional court, and as such has the ultimate authority to interpret the Treaty. This truism has taken root partially as a result of the CJEU’s own pronouncements in a range of cases starting with Van Gend & Loos and Costa v ENEL. In these cases, and those that followed their line of reasoning, the CJEU constructed a legal order that offered an exceptionally permissible environment for judicial action and activism – feeding off the more widely felt sentiment after the horrors of the Second World War that perhaps courts were the least fallible of all political institutions. Whatever the exact genesis of the narrative that attributes the CJEU with its constitutional character, it is now often taken for granted that the CJEU cannot be curbed in any meaningful sense – be it through domestic or supranational institutions. While in political science literature more and more attention is given to the empirical reality of the interaction between national courts and the CJEU, and the ways in which the former can nudge or circumvent the latter’s preferences, in legal studies such critical engagement has been lacking. Often, the CJEU’s status is seen as the pinnacle of the vision of the EU as based on law, or, as the recent Commission White Paper on the Future of Europe put it, as “replacing the rule of war with the rule of law”.

Horsley challenges this truism, and does so very persuasively. He highlights not just that the sociological acceptance of the CJEU’s role is in fact largely absent in both political and judicial institutions throughout Europe, but also that the constitutionalist narrative doesn’t hold its own on purely legal terms. In fact, the development of the role of the CJEU stands in contradiction with the Treaty. Going through a range of different aspects of the legal architecture of the EU, Horsley shows, in simple terms, that the Treaty answers basic questions about the nature and scope of integration very differently than the CJEU has. And this matters, Horsley argues, because of the ridiculously high consensus threshold that underpins the Treaty. We should, in other words, be suspicious of the CJEU’s answers where they differ from those articulated in the Treaty.

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New layout for the European Law Blog

Welcome to the new layout for the blog.  Due to technical difficulties with the old software, it was time for a change. The new layout has been funded by the University of Liege (Belgium), the University of Fribourg (Switzerland), and the University of Amsterdam (the Netherlands). We are grateful for their support and we hope you enjoy the new site. 

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Whatever Happened to the Irish Backstop?

By Nikos Skoutaris

The Brexit negotiations have been haunted by an almost unsolvable riddle.  How could the UK and the EU keep the Irish border free of any physical infrastructure without jeopardising the integrity of the single market?

That riddle has two possible solutions. The UK as a whole could opt for a relationship with the EU that would be much closer than the one described in its red lines. Since Theresa May’s Lancaster House speech, such red lines entailed that the UK would not be part of the single market and the customs union after Brexit takes place. Alternatively, the UK could accept that Northern Ireland would have a closer relationship with the European Union than the rest of the country.Continue reading

21 Thoughts and Questions about the UK-US CLOUD Act Agreement: (and an Explanation of How it Works – with Charts)

By Theodore Christakis [1]

I. Introduction: The Need to Unpack the Long-Awaited UK-US Data Sharing Agreement

After four years of negotiations surrounded by secrecy, the United Kingdom and the United States finally released on October 7, 2019, the text of their Data-sharing agreement aiming to facilitate the cross-border access to electronic data for the purpose of countering serious crime. This long-awaited agreement is the first of the executive agreements envisioned by the CLOUD Act. It is, as rightly said, “critically important providing not just a window into the US and UK’s approach but also presumably setting out a basic blueprint for other agreements that may follow”. Indeed, the US and the European Union have recently begun negotiations in order to conclude an agreement in this field, while the US and Australia also announced having started similar negotiations.Continue reading

Could the European Council impose a ‘qualitative condition’ to hold a second referendum or General Election on a new Brexit extension?

By Oliver Garner

Introduction

The EU (Withdrawal) (No.2) Act 2019 (‘The Extension Act’) was passed in September 2019 before the infamous unlawful prorogation of the UK Parliament. The Act obliges the Prime Minister to request a further extension of the Article 50 period to 31 January 2020 in the event that no deal has been agreed, and Parliament has not agreed to no deal, by 19 October 2019. The ambiguity over whether the Prime Minister will comply with this legislation has raised concerns over the government’s commitment to the rule of law. On 4 October 2019, however, government submissions to the Scottish Court of Session suggested that the Prime Minister will indeed comply with the law. If the government’s new proposals for the Irish backstop do not lead to a deal, therefore, it seems that the legal issue of extension will transfer to the European level at the next European Council meeting.Continue reading

Neues aus dem Elfenbeinturm: October 2019

Call for Chapters: Personal Data Protection and Legal Developments in the European Union

Deadline for proposal submissions: 18 October 2019.

Conference “Judges in Utopia: Civil Courts as European Courts”

Amsterdam, 7-8 November 2019. Deadline for (free) registration: 18 October 2019.

Conference “Socially Responsible Foreign Investment under International Law”

Catholic University of Portugal, 24-25 October 2019. (Free) registration necessary.

Workshop “Gender Based Approaches to the Law and Juris Dictio in Europe”

University of Pisa, 19-20 June 2020. Deadline for abstract submissions: 15 January 2020.

Planet49 CJEU Judgment brings some ‘Cookie Consent’ Certainty to Planet Online Tracking

By Gabriela Zanfir-Fortuna

This blog was first published on pdpEcho and is reproduced here with the kind permission of the editor: https://pdpecho.com/2019/10/03/planet49-cjeu-judgment-brings-some-cookie-consent-certainty-to-planet-online-tracking/

Last week, the Court of Justice of the European Union published its long-awaited judgment in the Planet49 case, referred by a German Court in proceedings initiated by a non-governmental consumer protection organization representing the participants to an online lottery. It dealt with questions which should have been clarified long time ago, after Article 5(3) was introduced in Directive 2002/58 (the ‘ePrivacy Directive’) by an amendment from 2009, with Member States transposing and then applying its requirements anachronistically:

  • Is obtaining consent through a pre-ticked box valid when placing cookies on website users’ devices?
  • Must the notice given to the user when obtaining consent include the duration of the operation of the cookies being placed and whether or not third parties may have access to those cookies?
  • Does it matter for the application of the ePrivacy rules whether the data accessed through the cookies being placed is personal or non-personal?

The Court answered all of the above, while at the same time signaling to Member States that a disparate approach in transposing and implementing the ePrivacy Directive is not consistent with EU law, and setting clear guidance on what ‘specific’, ‘unambiguous’ and ‘informed’ consent means.Continue reading

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