Opinion 2/13 of the Court of Justice on Access of the EU to the ECHR – One step ahead and two steps back

By Stefan Reitemeyer and Benedikt Pirker

The present contribution is a translated and somewhat simplified version of an article that appeared in German on 23 March 2015 in the Swiss legal online-journal Jusletter. The authors thank the Jusletter for their kind permission to republish the article and Markus Kern and the European Law Blog’s editorial team for valuable comments on earlier versions.

 Readers of this blog will nearly inevitably already have been confronted with this decision. The reactions to the Court’s Opinion have been vivid, to say the least. What did the Court say exactly on this draft agreement for accession to the ECHR? And is the current predominantly negative reaction (see for an exception here) justified? The main aim of the present post is to provide a concise summary of the Court’s findings, but also to provide some early assessment and criticism of the reactions on particular points. After a brief historical introduction to the context of the Opinion, we follow the sequence of analysis of the Court and thus examine in turn:

  • the arguments of the Court on the autonomy of the EU legal order;
  • the monopoly on dispute settlement established by Article 344 TFEU;
  • the co-respondent mechanism;
  • the procedure for the prior involvement of the CJEU and the specific characteristics of EU law concerning judicial review in matters of the Common Foreign and Security Policy (CFSP).

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How Strict is “Strict Conditionality”? The New Eurozone Agreement on Greece

By Michael Ioannidis

Few elections have as their core issue an international arrangement. The Greek election of 25 January 2015 was one of these exceptions. In 2010 and 2012, Greece agreed with its Eurozone partners and the IMF to accept two large bailout packages conditioned on the fulfilment of far-reaching, austerity-oriented reforms. It also agreed to submit to a monitoring mechanism comprised by officials from the European Commission, the IMF, and the ECB that would supervise its compliance with the conditions and regularly revise them. This monitoring and rule-making structure became known as the Troika.

The second of the bailout agreements, concluded in 2012, was due to expire on 28 February 2015. Unlike Portugal or Ireland, Greece had not established access to the bond market by the end of its Adjustment Programme. Ending international financing support at the end of February would thus possibly prompt a Greek default. What the next step after the expiry of the 2012 bailout programme should be was put to a national vote on 25 January.

This post will offer an overview of the recent major developments concerning the Greek part of the Eurozone crisis. It will discuss how the Greek government tried to challenge basic elements of the new European economic governance and the outcome of this challenge. In the first part of the post, I present the starting position of the new Greek government (1.), then the legal and political context in which the negotiations took place (2.), and finally the agreement of 20 February 2015 (3.). In my conclusion, I take the position that opponents of austerity should wait to celebrate a victory. “Strict conditionality”, the necessary counterpart of financial assistance according to EU law, proved to be much stricter than many actors thought, both in economic and institutional terms (4.).Continue reading

On Black Cabs and bus lanes: a middle-of-the-road judgment by the CJEU in Eventech

By Bram Nijhof

Most state aid cases seem relatively straightforward, with the most notable exception being tax cases which had their fair share of attention recently. When I read a summary of the Eventech case (C-518/13), at first glance it seemed to fall in the straightforward category. However, as one may recall from tax state aid cases, often the most difficult aspects of these cases are the criteria of selectivity and the involvement of state resources. And it just so happens that these criteria are the main issues at stake before the CJEU in Eventech, which makes it a judgment worthy of some further discussion.

Anyone who has ever been to London knows the distinctive Black Cabs which are probably as much a British symbol as their well-known bigger sisters, the red double-deckers. What you may not know (at least I didn’t) is that there are also other kinds of taxis in London called minicabs.

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Albany revisited: the Court directs NCA to carry a more social tune

By Laurens Ankersmit

In C-413/13 FNV Kunsten Informatie en Media, the Court decided that competition law does not apply to arrangements among freelance substitute orchestra musicians that aim to improving their working conditions if they can be qualifed as ‘workers’. In so doing, the Court significantly expanded the scope for taking social interests into account within competition law analysis and rejected the more narrow and liberal approach taken by the Dutch National Competition Authority (NCA), the Dutch government and—not surprisingly—the European Commission. This is a significant case, not only because the Court for the first time had to deal with the increasingly more common phenomenon of the ‘false self-employed’ when interpreting competition law, but also because the Court once again demonstrated its willingness to take public interests other than economic efficiency into account when applying competition law (a holistic approach that, I argue, is fundamentally more in line with the EU treaties).

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The AG’s opinion on the Outright Monetary Transactions Case

By Daniela Jaros

On January 14, Advocate General (AG) Cruz-Villalón issued his opinion in the reference for a preliminary ruling on Gauweiler et al. v Deutscher Bundestag on the ECB’s Outright Monetary Transactions (OMT). The OMT Programme launched in September 2012 was part of a series of measures taken by the ECB in response to the Euro crisis accompanying the loan facilities (European Financial Stability Facility – EFSF, European Stability Mechansim – ESM).

The German Constitutional Court (Bundesverfassungsgericht, “BVerfG”) had asked the Court of Justice (CJEU) two questions in what it classified as an ultra vires review of acts of the European Union. Roughly speaking, the BVerfG wanted to check whether the European Central Bank (ECB) had transgressed the limits of its powers derived from the treaties. If the ECB had, this would have consequences for the constitutional identity of Germany. Therefore, the BVerfG first wanted clarification on whether the Outright Monetary Transactions (OMT) Programme was an economic rather than a monetary measure and whether the ECB had therefore exceeded its powers by establishing it.  Second, the BVerfG raised the question whether the OMT programme was not violating the prohibition of monetary financing of Member State.Continue reading

POMFR: José Luís Da Cruz Vilaça, EU Law and Integration: Twenty Years of Judicial Application of EU Law

By Tim Corthaut

Sometimes a book wins you over, and José Luís Da Cruz Vilaça’s EU Law and Integration: Twenty Years of Judicial Application of EU Law (Oxford/Portland, Hart 2014), is such a book.

I must admit that I had some reservations at first over the concept of the book, which is in essence an overview of the legal career – both as a legal scholar and a judge – of José Luís Da Cruz Vilaça, on the basis of a series of articles on different topics written over the course of two decades. Books like this only stand out if they can avoid three traps.Continue reading

Neues aus dem Elfenbeinturm: February 2015

Conference : 22nd St. Gallen International Competition Law Forum

University of St. Gallen, 23-24 April 2015.

Call for Papers: Conference “The State and/of Comparative Law”

University of Limerick, 2-4 June 2015. Deadline for abstract submissions: 28 February 2015.

Call for Papers: 50 Year Anniversary of Cahiers de droit européen – “General Principles of European Union Law”

Brussels, 10 September 2015. Deadline for summary presentations submissions: 1 March 2015.Continue reading

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