‘The two-step can’t be the quick step’: The CJEU reaffirms its case law on the European Arrest Warrant and the rule of law backsliding

Despite frustration with Polish legislation increasingly threatening the independence of the Polish judiciary and the political stalemate to act effectively upon it under Article 7 TEU, the CJEU in L and P (Joined Cases C-354/20 PPU and C-412/20 PPU) does not appear to cave in to any pressure. This time  pressure came from the Rechtbank Amsterdam (the ‘Amsterdam Court’) having referred new preliminary references on the tenability of the CJEU’s existing strand of case law (in particular its LM ruling) whereby national courts as executing authorities must perform a ‘two-step test’ before declining to execute a European Arrest Warrant (‘EAW’) issued from within another Member State where the rule of law (especially the independence of the judiciary as protected by Articles 47 Charter and 19 (1) TEU) is under threat.

The two-step test for non-execution of an EAW

This two-pronged test consists of first establishing that there are systematic and generalized deficiencies in the state of the issuing authority as regards the independence of the judicature (step 1) and that there are good grounds to believe that the specific person that is subject to the EAW will indeed suffer a breach of the right to a fair trial, i.e. trial by an independent court of law (step 2). If both steps are completed, the executing authority may exceptionally refuse to surrender the individual under Article 1(3) of Framework Decision 584/2002 on the European Arrest Warrant (‘EAW FD’). This two-step test was first developed in the context of (appalling!) detention circumstances in the case of Aranyosi and Căldăraru (the risk of inhuman or degrading treatment in detention facilities), to be later expanded to the right to a fair trial in cases like LM. This complex two-step approach finds its justification in the sacrosanct duty of mutual recognition, which is the cornerstone of mutual cooperation in judicial matters in the EU. Consequently, the exceptions in the EAW FD (Articles 3 to 5 EAW FD) are considered a closed system. Article 1(3) EAW FD (the human rights provision) is formally no part of these exceptions, unless the Article 7 Procedure against a Member State has been successfully completed (Recital 10 EAW FD). Only if both conditions of the two-step test are met, can the executing court also resort to Article 1(3) EAW FD as a ground for the non-execution of an EAW.

That the first step is easily taken in the case of Poland is beyond discussion. It requires ‘objective, reliable, specific and properly updated evidence’ (Aranyosi and Căldăraru, para. 104) for which executing courts like the Amsterdam Court can draw from the Commission’s reasoned proposal under Article 7(1) TEU (establishing a ‘real risk’ of the breach of a right to a fair trial). Yet, the European Council has not acted upon Article 7(2) TEU (establishing that there is a ‘serious and persistent breach’), let alone Article 7(3) TEU, i.e. the follow-up decision of the Council to suspend certain rights of the Member State under the EAW FD (here in particular the right to expect courts in other Member States to execute EAWs promptly and, in principle, unconditionally) (LM, para. 72). In the context of this stalemate, the second, individualized step remains necessary under the LM strand of case law.

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AG Opinion on Doñana Case (C-559/19): a “watered-down” concept on the prohibition of groundwater deterioration?

On 3 December 2020, the CJEU issued an Advocate General’s Opinion on the Case C-559/19 European Commission v Kingdom of Spain, on the deterioration of the Doñana natural area. This case deals with the interpretation of the Water Framework Directive and Habitats Directive for the protection of groundwater and connected wetlands.

There is considerable concern about a key part of the opinion, regarding the interpretation of the concept of further deterioration of bad quantitative status of groundwater. In this case, water extractions for agriculture exceed groundwater recharge and groundwater levels have been falling for many years, with likely adverse effects on wetlands and connected surface protected areas. The Commission argues that Spain has infringed the Water Framework Directive’s prohibition of deterioration regarding groundwater.

However, the Advocate General finds that where a water body is already of bad quantitative status, neither lowering the level nor excessive abstraction, constitutes further deterioration under the Water Framework Directive. Only an increase in the current overexploitation would meet the definition. A further deterioration within the scope of bad status would require an increase in the current deficit that is, increasing overexploitation.

This interpretation would not be in line with the broad interpretation of deterioration settled by the Court for surface water status and chemical groundwater status in cases C-461/13 and C-535/18. The Court established in those cases that the obligation to prevent deterioration encompasses all changes liable to undermine achievement of the principal objective of the Directive, that is, to preserve and restore good status of all waters. However,  the restrictive interpretation of Case C-559/19 Advocate General’s Opinion could jeopardise the full effectiveness of Water Framework Directive’s prohibition of deterioration for groundwater.

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Regulating freedom of expression on online platforms? Poland’s action to annul Article 17 of the Directive on Copyright in the Digital Single Market Directive

In an action for annulment in relation to Article 17 of the Directive on copyright and related rights in the Digital Single Market (Directive (EU) 790/2019, CDSM Directive), currently pending before the Court of Justice of the European Union (CJEU), the Republic of Poland argues that an obligation for specific online platforms leading them to filter content uploaded by their users by automated means infringes the right to freedom of expression. After the CJEU had rejected indirect challenges to existing copyright rules in C-476/17, Pelham (see here and here), C-516/17, Spiegel Online (see here and here) and C-469/17, Funke Medien (on the AG Opinions of all three cases see here), this action for annulment (C-401/19, Poland v Parliament and Council) constitutes another escalation in the struggle for a balanced European copyright law. The AG’s Opinion is expected in spring 2021.

Background

The CDSM Directive was highly contested and passed the vote in the Council in May 2019 with support from Germany, France (see here) and the UK (which has since then withdrawn from the EU) but with strong opposition from Sweden and Finland, two of the BeNeLux countries (with Belgium abstaining), Italy and Poland. It is the latter that has challenged one of the most contested (and lobbied) provisions of the Directive (for an overview of the substantive provisions of the Directive see here and here). Article 17 (formerly Article 13 in the draft proposal) has been opposed by academics and public interest groups, and has mobilized millions of European citizens to take the streets under the slogan #SaveYourInternet. Leading NGOs led the protests, amongst them European Digital Rights, the Electronic Frontier Foundation, Communia and Creative Commons.

Article 17 aims to address what the content industry has called the ‘value gap’ on the internet, which means that uploads of copyright protected works to online platforms by their users compete with commercial offers (such as Spotify and Netflix) and reduce the revenues of artists and producers (see for an early critique here). In practice, according to rightholders, a ‘value gap’ exits if a protected work (for example a music video or a photograph) is uploaded by a user of an online service without authorization from the owner of the copyright. Benefitting from unauthorized uploads, but in general uploads of any kind, are users, whose experience using an online platform such as Facebook, YouTube and Instagram improves, and the platforms themselves whose business model is based on an ever-increasing amount of shared content, which generates interaction, data and, as a result, advertisement revenue.

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The Configuration of Citizenship in (post-)Covid-19 EU: Thoughts on the EU Citizenship Report 2020

Western thinking tends to be linear; each moment, each chapter of life, each policy or each historical period is allegedly superseded by others thereby leading to the fading of what preceded it. This succession is often accompanied by the (Western) belief in an upward move or in a more advanced dimension. But various crises in Europe and the world in the 21st century, including the pandemic, have shown that reactions, regressions and backsliding are also parts of a historical time. It is often said that Eastern thinking, on the other hand, does not give a definite arrow to time; the later can move in various directions and, when it does, we should not seek to erase losses, traumas and negativities. Instead, it is advisable to make an effort to mark them, observe them and to proceed with a discernment of the threads that connect past and future, persons and groups, societies and polities, loss and memory. In this way, repair gains traction and configuration begins. Repair and configuration, in turn, open the way to healing and to transformation.

In the European Commission’s EU Citizenship Report 2020, which was published on 16 December 2020, I discern elements of both repair and configuration. I say ‘repair’ because the Commission situates the report within the political landscape of Covid-19 and the concomitant restrictions imposed on free movement, and in the context of social movements for climate change, racism and equality, challenges to democracy and the (positive) developments that have taken place since the previous 2017 Citizenship Report. It also contains a strategy of configuration since it sets out priorities and actions (18 actions) to empower and protect EU citizens, thereby acknowledging the impact of externally imposed vulnerabilities in their life worlds.Continue reading

Algorithm Transparency: How to Eat the Cake and Have It Too

In today’s data economy, more and more decisions are driven by algorithms with little to no human interference, both in private and public sectors: from services we are offered, people we choose to date, to our creditworthiness and, in some instances, our proneness to welfare and tax fraud.

Ever since the Facebook- Cambridge Analytica fallout, the black box problem of AI algorithms has irreversibly become political on both sides of the Atlantic, with high-level officials ranging from the German Chancellor Merkel to the EU Vice President Vestager taking a firm stance on how online platforms should be transparent about the way their algorithms works.

Governing algorithms is inherently a balancing exercise. On the one hand, private persons (both individuals and entities) who are subjected to an algorithm-produced decision, have a right to be informed about its modus operandi, including the rationale behind such decision-making, the types of data processed, and the potential risk of error. On the other hand, algorithms give businesses a competitive advantage, and to disclose their functioning would go directly against the interest of a company whose entire business model relies on it. 

While AI tools still exist in a relative legal vacuum, this blog post explores: 1) the extent of protection granted to algorithms as trade secrets with exceptions of overriding public interest; 2) how the new generation of regulations on the EU and national levels attempt to provide algorithm transparency while preserving trade secrecy; and 3) why the latter development is not a futile endeavour. 

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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

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