Review of Clara Rauchegger and Anna Wallerman (eds.) The Eurosceptic Challenge: National Implementation and Interpretation of EU Law (Hart 2019)

The aim of this edited volume, published by Hart Publishing in the series “EU Law in the Member States”, is to assess Euroscepticism in the light of the various facets and degrees of national resistance to the EU and to EU law. As the editors acknowledge in their introduction, the ambition is not to provide a comprehensive account of all expressions of Euroscepticism in all the Member States, but rather to provide different perspectives. This is why they deliberately excluded the study of Brexit, as it is understood not to be an internal challenge to the effect and authority of EU law and governance.

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Spanish Constitutional Court takes control of lower courts’ application of Cilfit – in a dubious way

On 26 March 2019, the Spanish Constitutional Court (SCC) handed down its judgment STC 37/2019, reversing a Supreme Court’s decision that had set aside (without making a preliminary reference to the Court of Justice of the EU, or CJEU) a national law for breaching Article 3(2) of Directive 2009/72/EC on the internal market in electricity.

The SCC explained that setting aside a Spanish legislative act for breach of Union law is subject to strict constitutional scrutiny, because national laws “express the popular will.” Therefore, the SCC reasoned, an act of Parliament may only be set aside if the requirements of the acte clair or éclairé doctrine (established in the Cilfit judgment of the CJEU) are strictly adhered to. The SCC noted, however, that its constitutional standard of review would have been less demanding if the national court had found that the Spanish law did not breach EU law, as it would have applied merely a reasonableness standard of review. In other words, the SCC applies a double standard, depending on whether or not the national court intends to set aside a national law for being incompatible with Union law.

In the instant case, the Supreme Court had considered that there was no need to make a preliminary reference because there were two previous CJEU rulings addressing the underlying legal issue. However, the SCC noted that these precedents had applied an equivalent provision from the gas market directive (2009/73/EC), and not from the electricity market directive, and gave less importance to the fact that both provisions had the same content. In addition, the SCC considered that the facts of the cases were not analogous. Thus, the matter could not be considered “clarified” within the meaning of the Cilfit doctrine.Continue reading

New laws of forgetting – The German Constitutional Court on the right to be forgotten

  1. Introduction

Empirical research has shown that the processes of human remembering and forgetting are subject to a number of laws: Neurosciences prove that forgetfulness is related to the gradual decline of brain synapses, psychology indicates that memory is deeply influenced by emotional affection, and cultural studies argue that oblivion is fundamentally subject to broad social and political changes.

Roughly five years ago the European Court of Justice (CJEU) added another law to these processes of remembering and forgetting: data protection law. Bringing into being what would become known as the right to be forgotten (rtbf), the Court in Google Spain SL ruled that the European Data Protection Directive equipped individuals with a right to have their personal data delinked from search engines or deleted completely. Last Wednesday the rtbf was introduced a new institutional stepparent: the German Federal Constitutional Court (GCC). Delivering judgments on two constitutional complaints – faithful to the GCC’s titling, we will call them RTBF I and RTBF II -, the Court not only ushered in a new phase of European judicial cooperation, but also provided new interpretations for the rtbf which lead to several conflicts with the CJEU.

After briefly sketching the GCC’s new conception of multilevel EU fundamental rights protection, I illuminate the two major inconsistencies vis-à-vis CJEU-interpreted European data protection the judgments lead to. In conclusion, I give a short outlook on potential future developments.Continue reading

The rule of law and the EU enlargement to the Western Balkans

The recent decision of the European Council not to open the EU accession negotiations with North Macedonia and Albania has led to many a criticism both from the Western Balkans states (herein WB6) and some of the leading EU officials. The decision was motivated primarily by French President Macron’s belief that the enlargement process is flawed as it fails to bring transformation to the WB6 states, and that the EU should first reform itself before it proceeds to further enlargement. The critics have pointed out that the decision is a ‘historical mistake’ and that it leaves the region open to the influence of other international actors such as Russia, Turkey and China.

Less attention, however, has been paid to the consequences that the decision might entail for the rule of law and its promotion in the WB6 region. While most of the criticism of the process has been reserved for domestic actors and their unwillingness to implement EU driven reforms, much of the recent criticism focuses on the role that the EU itself has had. The EU influence is perceived as ‘stabilitocratic’, by strengthening the existing regimes which are hostile towards rule of law and democracy or, even pathological, as it does not pay sufficient attention to the breach of procedural rights of those prosecuted for corruption. It is argued that, even for the states that have advanced forward in the enlargement process, such as Montenegro and Serbia, the protection of some fundamental rights and freedoms has not been strengthened but weakened. Progress in the enlargement process through the opening of the negotiation chapters did not equal progress in the strength of the rule of law and quality of governance. It seems that Bosnia and Kosovo, while not being granted candidacy status, are not that far away in terms of standards in either of the two areas or, at least, less backsliding has been recorded there than in Serbia and Montenegro which remain the only two states among the WB6 that have opened the chapters of the acquis. Also, many of the proposed reforms, such as the introduction of the judicial councils, have been overvalued to begin with and have not led to either an increase of trust in the judiciary or to it becoming more independent and willing to tackle organized crime and corruption. Continue reading

Case C-233/18 Haqbin: The human dignity of asylum seekers as a red line

In November 2019, in the Haqbin case, the Court of Justice of the European Union (ECJ) held that an applicant for international protection guilty of serious breaches of the rules of the accommodation centre in which he or she is hosted or of seriously violent behaviour cannot be sanctioned by a withdrawal of material reception conditions relating to housing, food or clothing. This would violate the principle of proportionality and undermine the human dignity of the applicant. The judgment is of great importance, as many Member States sanction unruly asylum seekers with the withdrawal of exactly these reception conditions.Continue reading

The independence of the disciplinary chamber of the Polish Supreme Court or how to forget about discipline

On the 19th of November 2019, the Court of Justice (the Court), ruled on the joint cases concerning the independence of the disciplinary chamber of the Polish Supreme Court (C-585/18, C-624/18 & C-625/18), intervening in the context of what is often described as a ‘rule of law crisis’. It all goes back to 2015, when the new governmental majority introduced a reform of the Constitutional Court, later followed by the reforms of the Supreme Court and of the National Council of the Judiciary (NCJ). The latter were found contrary to the Union standards of judicial independence in Commission v Poland, discussed here. Five aspects of those reforms are relevant for the cases at hand. First, the lowering of the retirement age of Supreme Court judges to 65, unless the Polish President, after receiving an opinion from the NCJ, consents to their request for continuation of their post. Secondly, the nomination by the Parliament of the majority of the NCJ’s members. Thirdly, the exclusive jurisdiction of the newly created disciplinary chamber for disputes on the retirement of Supreme Court judges. Fourthly, that the members of this chamber are selected by the NCJ and nominated by the President. Finally, the incomplete nominations for that chamber at the material time of the cases, which led to the filing of the disputes before the labour and social insurance chamber of the Supreme Court (the referring chamber). Departing from the Court’s assessment on the Union’s standard of independence, the post discusses some aspects of judicial cooperation, with a focus on the ECHR, the articulation of primacy with sincere cooperation, and the empowerment of national judges to set aside jurisdictional rules.Continue reading

The infringement action against the UK for failing to nominate a new Commissioner

The further extension of the UK’s membership to 31 January sees the UK remain a Member State beyond the re-scheduled date of 1 December for the new Commission to assume office. This has prompted the incoming Commission President Ursula von der Leyen to request the United Kingdom Prime Minister to nominate a Commissioner.

On 13 November the United Kingdom informed the European Commission that it would not appoint a new Commissioner before the national General Election on 12 December. The failure to do so has prompted the Commission to initiate infringement proceedings against the UK.

The UK was given until 22 November to respond to the proceedings, which it has failed to do. Thus on 25 November the Council adopted the list of Commission candidates to be approved by the European Parliament without a nomination by the United Kingdom. The European Parliament will vote on the candidates in plenary session on 27 November.

This post will first analyse the legal sources informing the infringement proceedings. It will then consider the proceedings as a reactive mechanism to ensure the UK’s compliance with EU law during extension, contrasting this to pro-active measures used for previous extensions. Finally, the post will conclude with consideration as to how the UK’s empty chair crisis could impact upon the legitimacy of measures adopted under the new Commission for the EU and the UK.Continue reading

GC & others vs CNIL and Google: This is a special case

On the 24 September 2019, the Grand Chamber of the Court of Justice (hereafter: ECJ) released its judgment in the second of two cases in as many weeks concerning the ‘Right to be forgotten’. The first, Google v CNIL, tacked the territorial scope of the right. In the second, GC, AF, BH, and ED v Commission nationale de l’ínformatique et de Libertes (CNIL), Premier ministre, and Google LLC (hereafter: GC), the Court tackled a request for a preliminary ruling after the French data protection authority (CNIL) refused to require Google to dereference various links to third party websites in the list of results displayed following searches of their names.

A claimant known as GC wanted a link to a satirical photomontage depicting her in an illicit relationship with a politician removed from Google’s search returns. AF wanted search results removed that identified him as a public relations officer for the Church of Scientology, a position he no longer held. BH wanted deindexing of articles linking him to contemporaneous investigations into the funding of political parties, but that did not reveal their outcomes. ED had requested the de-indexing of articles that mentioned a prison sentence of seven years and ten years judicial supervision for sexual assaults on children under the age of 15. The common thread between all of the parties was that the links included special categories of personal data within the meaning of Article 8(1) and (5) of the now repealed Data Protection Directive 95/46/EC (similar provisions can now be found in Article 9 of the European Union’s General Data Protection Regulation). Continue reading