30 December 2015/
By Elinor Pecsteen
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By Elinor Pecsteen
Recently, journalists from all EU member states raised, for the first time ever, a joint voice before the Court of Justice of the European Union (CJEU) against the refusal of the European Parliament (EP) to give access, on grounds of personal data protection, to information on how MEPs spend their allowances.
This development is no surprise as the endeavour by individuals and non-governmental organisations alike to hold the EU to its democratic imperative of openness and transparency has been a clearly increasing tendency over the years. However, meeting the expectations of the civil society is not always an easy task for the EU institutions, which must keep a fair balance between transparency and the protection of an individual’s privacy and integrity throughout their processes.
This balance has become essential in the present context of increasing numbers of requests for public access to EU institutions documents containing personal data. Yet, the question remains unclear as to when it is legitimate for an institution to refuse access to documents on the ground of personal data protection.
The following post attempts to shed some light on this question by discussing two recent CJEU judgments whose common threads allow for some interesting consistency to be found in the Court’s logic. On the basis of these judgments, it would seem that for the Court, the use of personal data protection as a justification for refusing requests for access to documents should be restricted. Such requests are essential to increase the confidence of citizens in the EU and require that, provided the conditions are fulfilled, full access be given to the institutions’ documents, personal data included. The Court specifies that the context of public mistrust in the EU and the potential dual role of its decision-makers must weigh in the institutions’ assessment of the conditions.Continue reading
24 December 2015/
By Laurens Ankersmit
By Laurens Ankersmit
In this Grand Chamber judgment the Court gave important guidance on the interpretation of the new TFEU provisions 43 (2) and (3). These provisions provide a legal basis for the Common Agricultural Policy (CAP) and the Common Fisheries Policy (CFP) and replace the old article 37 EC. Significantly, article 43 (2) TFEU makes the CFP subject to the ordinary legislative procedure and thus gives the Parliament a new and important role in the CAP and the CFP. Under the old article 37 EC the Parliament was only consulted. Article 43 (3), on the other hand, provides that the Council shall adopt measures ‘fixing and allocation of fishing opportunities’ without any role for the Parliament.
In this judgment, the Court found a clear hierarchical relationship between the two provisions in the context of the CFP which was already addressed by the Court in the Venezuela judgment (2014). Article 43 (2) is reserved for policy decisions whereas article 43 (3) TFEU is to be used mainly for measures implementing those policy decisions. Policy decisions also encompass determining the mechanism for calculating fishing limits. However, the Court did not accept the analogy between article 291 (2) TFEU and article 43 (3) TFEU. The judgment is an important victory for the European Parliament and strengthens and shapes its role in the determination of the Common Fisheries Policy, one of the major policy areas of the Union. Indeed, as the Advocate General pointed out, ‘in constitutional terms, the importance of the present cases can hardly be overestimated’.
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17 December 2015/
By Benedikt Pirker
Workshop „The Age of Austerity: A New Challenge for State Powers“
University of Edinburgh, 30 March 2016. Deadline for abstract submissions: 20 December 2015.
CJICL Conference „Public and Private Power“
University of Cambridge, 8-9 April 2016. Deadline for abstract submissions: 10 January 2016.
Workshop „The preliminary reference procedure as a compliance mechanism of EU environmental law“
Brussels, 17 June 2016. Deadline for abstract submissions: 15 January 2016.
Conference „Building Consensus on European Consensus“
European University Institute, Florence, 1-2 June 2016. Deadline for abstract submissions: 31 January 2016.
Doctoral Colloquium „Responsibility in International and European Law, Philosophy and History“
University of Fribourg, 11-12 November 2016. Deadline for abstract submissions: 1 March 2016.
EELF Conference „Procedural Environmental Rights: Principle X in Theory and Practice“
Wrocław University, 14-16 September 2016. Deadline for abstract submissions: 15 March 2016.
Conference „Intra-EU BITs and Intra-EU Disputes“
University of Vienna, 7 March 2016. (Paid) registration needed.
By Konstantinos Sidiropoulos
Post Danmark II constitutes the latest signal as to the view of the CJEU with regard to the assessment of rebates granted by dominant firms. As this was the first preliminary reference in a rebates case ever, there were high expectations with regard to the judgment (see e.g. here). It was seen as a golden opportunity for the Court to provide meaningful guidance, unconstrained by the limitations of judicial review in a truly fascinating and heavily disputed field of EU competition law. Indeed, this is the area where the European Commission made the most significant efforts to alter the current state of the law (see paras 37-45 of the Commission’s Enforcement Priorities Paper), albeit unsuccessfully (see judgments in Intel and Tomra). Hence, the key issue was whether the CJEU would ultimately yield to the increasing pressure to move to a more economically inspired approach to rebates under Article 102 TFEU. Overall, the ruling is valuable in that it clarifies the standard applicable to rebates granted by dominant undertakings.Continue reading
By Laurens Ankersmit and Benedikt Pirker
Challenging EU rules on the basis of EU agreements is very difficult. Challenging EU rules on the basis of the Aarhus Convention is pretty much impossible. In ClientEarth v Commission the Court reasoned once again that the Aarhus Convention could not be relied upon to invalidate EU secondary legislation. In this case, the Court found that ClientEarth could not rely on the Aarhus Convention to challenge the Public Access to Documents Regulation (Regulation 1049/2001) in order to obtain commissioned studies on compliance by Member States with EU environmental law in the context of infringement procedures. One of the arguments put forward by the Court was that the Aarhus Convention could not be relied upon because it ‘was manifestly designed with the national legal orders in mind’. This is an extraordinary statement, since the EU is party to the Convention and thus bound by it. It was no doubt inspired by the concern to protect the infringement procedure contained in article 258 TFEU, raising a number of questions on the relationship between EU primary, secondary and international law.Continue reading
16 November 2015/
By Benedikt Pirker
Conference “Soft law before the European courts : Discovering a common pattern ?”
Maastricht University Campus Brussels, 19-20 November 2015. Registration required.
Conference “Frontex : Legal Questions and Current Controversies”
University of Luxembourg, 27 November 2015. Deadline for (free) registration : 26 November 2015.
Young Scholars’ Conference 2016 “Law on the Move”
University of Michigan, 8-9 April 2016. Deadline for abstract submissions : 31 December 2015.
Call for Papers for a Symposium on “Constitutionalism Under Extreme Conditions”
University of Haifa, 18 July 2016. Deadline for abstract submissions : 1 February 2016.
13 November 2015/
By Stijn Lamberigts
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By Stijn Lamberigts
Covaci is the first case dealing with two of the so-called Roadmap Directives on procedural safeguards in criminal proceedings, Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings and Directive 2012/13/EU on the right to information in criminal proceedings. The Roadmap Directives are the latest attempt of the EU to increase the mutual trust between Member States (MS) in the field of criminal justice, by establishing EU minimum rules for procedural safeguards. An earlier attempt failed and some have questioned the added value of the Roadmap Directives to the standards provided by the ECHR and the Charter of Fundamental Rights. Both the CJEU and the national courts can play a defining role in ensuring that the minimum rules of the Roadmap Directives really contribute to more effective defence rights throughout the EU. The preliminary ruling in Covaci seems to indicate that the CJEU is willing to take up that role – to a large, but not unlimited, extent. Continue reading
By Rick Busscher, Martin Herz, and Hans Vedder
Competition law judgments are notorious for their length. An extreme example is the 5134 paragraph judgment in Cement. In most cases the appeal judgment is significantly shorter, as with the 391 paragraphs in the appeal in Cement. AC-Treuhand is no exception to that rule, but it takes it to the extreme by reducing the Court’s reasoning to a single paragraph. This single paragraph supports the finding that cartel facilitators are also liable under Article 101 TFEU. The issue whether a company that is not active on the affected market should also be brought under the scope of article 101, is a difficult matter. However, the Court finds it ‘surprisingly’ easy to solve this matter, which raises practical points as well as some fundamental questions. We will discuss and comment on this one paragraph below, as well as on some of the fluff that surrounds it, but we will start with the facts.Continue reading
