Brexit: In Transition

On Friday 31 January 2020 at 12a.m. CET the United Kingdom will become the first Member State to withdraw from the European Union. In accordance with Article 50(3) of the Treaty on European Union the ‘treaties will cease to apply’ and the Withdrawal Agreement will come into force. Paradoxically, however, Article 127 of this Agreement ensures that the treaties, and all EU law, will continue to apply to and within the United Kingdom until 31 December 2020.

This means that the seismic effects of Brexit will be staggered. The most immediate consequences will be institutional. Members of the European Parliament elected by UK citizens will lose their seats (and bring down their flags). The United Kingdom’s Judges at the Court of Justice and the General Court have issued their final judgments.(2). The empty seat in the Commission, following Boris Johnson’s refusal to nominate a new Commissioner, will be removed. The rotating Presidents of the Council will no longer be required to pull double-duty through the exercise of the United Kingdom’s proxy vote following the government’s decision to only send Ministers for meetings on matters of national interest.

These deconstructions will be accompanied by a new institutional innovation. The Joint Committee, which has authority over the implementation of the Withdrawal Agreement, will begin to function in 2020. The decision-making authority delegated to his institution by the new Protocol on Northern Ireland means that the Joint Committee may become subject to considerable controversy.

For individuals away from high-politics, however, the effects of Brexit will not be felt until the end of the year. Goods, capital, services, and people will continue to move freely across the English Channel, and despite the symbolic return of blue passports, UK citizens will still be able to travel freely to the coasts and capitals of the continent. Within the UK, the passage of the EU (Withdrawal Agreement) Act 2020 means that the European Communities Act 1972 has been granted an after-life as the conduit pipe whereby all ‘retained’ EU law will continue in force within the UK’s legal orders.

Brexit day does not, however, mark the end of the European Union’s voyage into uncharted territory. The first withdrawal of a Member State will be immediately followed by the first attempt to negotiate an international agreement with a ‘third country’ which is a former constituent partner in European integration. The new ‘Political Declaration’ will be the only map available to chart the breakneck 11 month course.

The EU’s international agreements usually mean the removal of barriers to economic, legal, and social integration. The negotiations with the UK will mean their construction. The intimate connection between the UK and the EU that has developed over five decades also means that this process will go far beyond the conclusion of a treaty in international law. It represents the construction of a new transnational legal order. This new voyage will continue to produce the juridical conundrums that have excited and exhausted the legal community since 23 June 2016. The European Law Blog will remain committed to providing our readers with timely and informed analysis throughout the next leg of the journey.

The integration and disclosure obligations on sustainability risks and factors in the UCITS and AIFs regulatory frameworks

In May 2018, the European Commission adopted a package of measures aiming at reorienting capital flows towards sustainability and providing investors with more clarity and transparency when investing in “green” products.  These measures consist of:

  • The Regulation on the establishment of a framework to facilitate sustainable investment (the “Taxonomy Regulation”), which establishes uniform criteria to determine whether an economic activity is environmentally sustainable;
  • The Regulation (EU) 2019/ 2088 on sustainability-related disclosures in the financial services sector (the “Disclosure Regulation”), which sets out what information managers and advisers must disclose to provide more transparency to investors;
  • The Regulation (EU) 2019/2089 amending Regulation (EU) 2016/1011 as regards EU Climate Transition Benchmarks, EU Paris-aligned Benchmarks and sustainability-related disclosures for benchmarks (the “Low Carbon Benchmark Regulation“), which establishes a new category of benchmarks comprising low-carbon and positive carbon impact benchmarks[1]; and
  • various amendments to the Undertakings for Collective Investment in Transferable Securities (UCITS), the Alternative Investment Funds (AIFs) and the Markets in Financial Instruments Directive 2004/39/EC (MiFIDII).

While the Taxonomy Regulation and the amendments to the directives outlined above are yet to be finalised, the Disclosure Regulation and the Low Carbon Benchmark Regulation were published in the Official Journal of the European Union on 9 December 2019. The Low Carbon Benchmark Regulation came into effect on 10 December 2019 and the Disclosure Regulation will be effective from 20 March 2021.Continue reading

E-Evidence in the EU Parliament: Basic Features of Birgit Sippel’s Draft Report

Discussions on E-Evidence are heating up at the EU Parliament

Taking into consideration the significant legal challenges from the globalization of criminal evidence and considering that traditional instruments for cross-border cooperation such as Mutual Legal Assistance Treaties (MLAT) are too slow and cumbersome, the European Commission proposed, on 17 April 2018, the “E-Evidence” legislative package (E-Evidence), which aims, to streamline cooperation with service providers and supply law enforcement and judicial authorities with expeditious tools to obtain e-evidence.

Despite difficult negotiations among EU Member States, the EU Council of Ministers succeeded in adopting on December 7, 2018 its “general approach” on E-Evidence. This led to a storm of reactions by NGOs, the industry, members of the European Parliament (MEPs) and at least seven EU States, including Germany, who opposed the Council’s draft. The Netherlands, for instance, denounced the Council’s text for being adopted “too fast” and stated that it “opened the way for abuse by EU countries that lack sufficient guarantees over the rule of law and fundamental rights”. In an article published a year ago and entitled E-Evidence in a Nutshell:  Developments in 2018, Relations with the Cloud Act and the Bumpy Road Ahead I presented an overview of the major features of the Council’s draft and the principal points of contention.

The months that followed showed the significant challenges that need to be addressed before a compromise is found at the EU on E-Evidence. The Civil Liberties, Justice and Home Affairs (LIBE) Committee of the European Parliament spent most of the year 2019 in drafting seven working documents on the topic. On 8 November 2019, however, an important development took place: the LIBE Committee’s Rapporteur MEP Birgit Sippel released her draft Report on the E-Evidence draft Regulation.

Sippel’s Report constitutes a huge departure from both the Council’s general approach and from the initial Commission’s proposal. It presents… 267 amendments to the Commission’s proposal aiming to modify not only every single article in the Commission’s and the Council’s drafts, but also some important mechanisms and pillars of these drafts.Continue reading

Consumer protection and the limits of CJEU Jurisdiction: a controversial Advocate General´s Opinion

According to Article 19(1) TEU the CJEU “shall ensure that in the interpretation and application of the Treaties the law is observed.” The Court is therefore the ultimate interpreter of European legislation, thus guaranteeing its uniform application. To that effect, the national courts are offered the possibility of submitting to it preliminary questions (Art. 267 of the TFEU). However, for this system to function adequately it is essential not only that Member States respect this pre-eminence, but that the CJEU respects the limits of its jurisdiction. In my view, the recent opinion by the Advocate General Szpunar (hereinafter AG) in Case C-125-18 – concerning a reference rate on Spanish mortgage loans and examined here in more detail could lead the CJEU to go beyond the boundaries of its jurisdiction . Let me explain why:

The problem arises in relation to one of the questions submitted by a Spanish Court to the CJEU, which can be summarized as follows: “Is it contrary to Directive 93/13, and to Article 8 thereof, for a Spanish court to rely upon and apply Article 4(2) when that provision has not been transposed into Spanish law?

This question touches upon an extraordinarily important issue. Article 4(2) of Directive 93/13 on consumer protection states that “Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, (…) in so far as these terms are in plain intelligible language.” This means that the assessment of unfairness of price and principal subject matter is excluded from the scope of the Directive.Continue reading

POMFR : Antonina Bakardjieva Engelbrekt, Xavier Groussot (eds), The Future of Europe: Political and Legal Integration Beyond Brexit (Hart Publishing, Oxford, 2019)

In a time where pessimistic views on the European project largely dominate legal and political scholarship, ‘The Future of Europe: Political and Legal Integration Beyond Brexit’ is a welcome change in perspective. In twelve chapters, the book shows the complexity of the question on the future of Europe. While not all conclusions drawn by the individual authors are positive, they at least offer a realistic picture of which issues will have to be dealt with in the future.

Antonina Bakardjieva Engelbrekt’s and Xavier Groussot’s edited book is the 13th volume in the series ‘Swedish Studies in European Law’ and builds on a conference organized by the Swedish Network for European Legal Studies in November 2017. The volume is divided into four parts, preceded by an introduction by the editors as is common for such collective works. In the latter, Antonina Bakardjieva Engelbrekt and Xavier Groussot set out the framework of the book, whose starting point is the European Commission White Paper of 2017 on the Future of Europe. While reflecting on the same underlying question as the Commission, the book does so from a slightly different angle. It limits itself to focus on three overarching themes, which in the authors’ view are ‘crucial for the sustainability of the European legal and political order’ – Institutional and Constitutional Fundaments of the Union, the Rule of Law and Security as well as the Rule of Law in the Member States. For all these themes, the individual authors, in one way or another, strive to identify conditions for a long-term, sustainable European political and legal integration. In doing so, the Brexit debate has been deliberately left aside to enable meaningful reflections on the future of Europe beyond a single Member State’s decision to leave the Union.

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International data transfers, standard contractual clauses, and the Privacy Shield: the AG Opinion in Schrems II

Introduction

On 19 December 2019, Advocate General (AG) Henrik Saugmandsgaard Øe of the Court of Justice of the EU (CJEU) issued his Opinion in the case Data Protection Commissioner v Facebook Ireland Limited, Maximillian Schrems (Case C-311/18, referred to throughout as “Schrems II”). The case has received a great deal of attention, and raises a number of significant questions about the regulation of international data transfers under EU data protection law. I will briefly describe the facts, before analysing some key questions the Opinion deals with, and will finally draw some conclusions. The relevant paragraphs of the Opinion are indicated in parentheses.

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Threats to public security in EU immigration law: Finding the right discretion

Recently, the CJEU has handed down two judgments in E.P. and G.S & V.G. on the interpretation of the Schengen Borders Code (SBC) and the Family Reunification Directive respectively. On that occasion, the Court was asked to clarify the conditions pursuant to which a third-country national could be considered a ‘threat to public security’. Does it suffice that immigration authorities regard a third-country national with suspicion, or are they conversely required to reproduce the exigent standards developed in free movement law? The latter would require national authorities to demonstrate that a third-country national’s personal misconduct amounted to ‘a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’. The Court’s responses therefore affect the degree of discretion awarded to national immigration authorities in the determination of threats to public security in immigration law. Whereas these questions are indubitably of practical importance to national immigration authorities, they equally lend themselves to a reflection on national administrative discretion in EU (immigration) law more generally: When does the CJEU acknowledge a wide margin of appreciation to the benefit of national authorities, and for what reasons so?Continue reading

Top ten most-read posts of 2019

As the end of the year is approaching, it is time for the blog’s traditional recap of the year and celebrate the most popular posts of 2019. Keeping in mind that there is a certain bias in favour of older posts, which have had more time to become popular, we list the top 10 posts that have been read the most in the past year.

Once more, Brexit seemed to have an impact on readers’ preferences, as the most read post of 2019 is – somewhat unsurprisingly – focusing on the CJEU’s judgment in Wightman. Besides Brexit, two significant themes crystallized throughout the year, namely data protection as well as Opinion 1/17 (CETA), which was already anticipated in last year’s recap post. Lastly, both the Court’s judgment in Tjebbes, focusing on the reach of Union law in nationality matters, as well as its ruling in the Commission’s infringement procedure against Poland due to a violation of Article 19 TEU, have been prominent amongst our readership.

We would like to thank our readers for their interest in the blog and all the contributors for their efforts to give their insights in important developments in EU law. We hope to continue receiving contributions from you and new contributors (email us at info@europeanlawblog.eu). We wish our readers and contributors all the best for 2020!

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