11 September 2013/
By Benedikt Pirker
On July 18th, Advocate General Cruz Villalón delivered a fascinating opinion in a case that could very well keep quite a number of scholars interested in EU fundamental rights law busy for a while. In Association de Médiation Sociale not yet available in English as far as I can see) the Court is confronted with a set of fundamental questions. First, whether the workers’ right to information and consultation within the undertaking as enshrined in Article 27 of the Charter and implemented through Directive 2002/14 establishing a framework for informing and consulting employees in the Union can be applied in a legal dispute between two private parties, i.e. on its potential horizontal effect. Second, this also implies discussing – for the first time explicitly – the difference between rights and principles enshrined in Articles 51 (1) and 52 (5) of the EU Charter of Fundamental Rights. In particular, this requires shedding light on the notion of implementation of principles, as Article 52 (5) speaks of principles being ‘judicially cognisable’ only in the interpretation of their implementing acts and the ruling on their legality. Third, the act with which the Union implemented the principle in the present context is a directive, which again raises the question as to the limits to the effect of directives in a legal dispute between private parties, as has already caused problems in well-known cases like Mangold and Kücükdeveci. As the opinion is already quite comprehensive, I’ll keep my comments to the minimum to not try our readers’ patience.
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6 September 2013/
By Laurens Ankersmit
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The summer holidays are over and it is time to start with a particularly interesting Grand Chamber ruling by the CJEU from this summer. In Case C-414/11, Daiichi Sankyo Co. Ltd, Sanofi-Aventis Deutschland GmbH v DEMO Anonimos Viomikhaniki kai Emporiki Etairia Farmakon, the CJEU turned its highly contentious Opinion 1/94 on its head in light of a number of Treaty changes to the scope of the common commercial policy. Significantly, the Court seems less concerned with the potential ‘abuse’ of certain legal bases by regulating ‘internally’ through international agreements. The CJEU also clarified its case law on the distinction between the scope of article 114 TFEU (internal market) as opposed to article 207 TFEU (common commercial policy).Continue reading
8 August 2013/
By Vanessa Franssen
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On 17 July 2013 the European Commission launched its proposal on the European Public Prosecutor’s Office (‘Proposed EPPO Regulation’). With this proposal, the Commission aims at improving the enforcement of offences affecting the EU’s financial interests and thereby at increasing the deterrent effect of law enforcement. At present, those offences are investigated and prosecuted by national prosecution authorities, to be brought to trial before national courts. This approach is however deemed inadequate. Offences affecting the EU budget are usually complex cases with a cross-border dimension and ‘of secondary importance’ for national prosecutors.[1] Moreover, statistics used by the Commission show substantial differences in enforcement between the various Member States.[2] With the establishment of an EPPO, this should change significantly.[3] Most notable is the shift from administrative investigations, as they are now conducted by OLAF (i.e., the EU’s antifraud office), to criminal investigations by the EPPO, a new EU judicial body.
The idea of an EPPO is far from new. The first concrete proposals in that direction saw the light in the Corpus Juris (1997, finalised in 2000). This research project proposed an extensive harmonisation of national criminal procedure, which was politically unacceptable at the time. In 2001, the European Commission presented a Green Paper, which took an entirely different approach based on the principle of mutual recognition. The EPPO would apply national criminal procedure rules when investigating, prosecuting and bringing to trial offences against the Union’s financial interests. After a very critical public consultation, which revealed numerous pitfalls,[4] the EPPO ‘dream’ was shelved for a few years, until it resurfaced in the Lisbon Treaty. Article 86 Treaty on the Functioning of the European Union (‘TFEU’) now provides an explicit formal basis for the creation of an EPPO. It determines the applicable legislative procedure and instrument, as well as the scope and competence of the future EPPO. Other aspects are left to the wisdom and discretion of the EU legislator.[5] The current Commission proposal is based on Article 86 TFEU, and draws inspiration from the Draft Model Rules, which resulted from a triple EPPO research project funded by the Commission.
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6 August 2013/
By Maria Hennessy
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On 6 June 2013, the Court issued an important ruling in the case of MA & Others v UK (C-648/11) on the position of unaccompanied children subject to the Dublin II Regulation. The case concerned three children who claimed asylum in the UK after having previously lodged asylum claims in the Netherlands and Italy. Due to ambiguity as to its meaning, the UK Court of Appeal submitted a preliminary reference question on Article 6 of the Regulation, the rule applicable to determining the Member State which must examine the asylum application lodged by a child. In essence, the Court was asked to identify which State was responsible for a child’s asylum claim in situations where the child in question has lodged claims in more than one Member State and has no family members present in the territories of Member States.[1]
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25 July 2013/
By Benedikt Pirker
An interesting case not only for ‘Sons of Anarchy’ fans was handed down by the EFTA-Court this week. The scenario is somewhat similar to the early, well known Van Duyn case law, where the Church of Scientology was at issue. In the present case, a member of the Norvegian Hells Angels was denied entry into Iceland because the Icelandic authorities argued that he played a central role in the final stage of accession of an Icelandic motorcycle club as a new charter in Hells Angels. The Supreme Court of Iceland referred a number of questions to the EFTA Court, most interesting to us regarding the interpretation of Article 27 of Directive 2004/38/EC. To quite some extent, the EFTA Court reiterates here what it had already established in Van Duyn long ago. However, there are three points I find interesting: The insistence on the need for the individual in question to constitute a genuine and sufficiently serious threat; the treatment of the dangerous organization by the State in question; and finally the findings on the alleged discrimination of non-nationals.
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24 July 2013/
By Benedikt Pirker
Alright, we admit it, the topic of the EU’s accession to the European Convention on Human Rights is indeed intriguing us quite a bit here at the blog, as some of our recent contributions (see here and here) demonstrate. But like probably many, if not most of our readers, as EU lawyers we are drawn like moths toward lights by such an important constitutional development; there is simply no helping. I am thus again giving in to the temptation and will briefly discuss a recent book, Paul Gragl’s The Accession of the European Union to the European Convention on Human Rights (Hart Publishing 2013) which treats this phenomenon in detail. For the purpose of this POMFR, I will start by briefly outlining the structure followed by the book, to continue then with a number of points I would like to comment on.
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18 July 2013/
By Clemens Kaupa
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The case Giersch, decided on the 20th of June, dealt with residence-based restrictions on financial aid for students. According to Luxembourg law, students received financial aid if they were residents in Luxembourg, regardless of nationality. The measure was challenged on the basis of Article 7(2) of Reg No 1612/68 (now Reg No 492/2011), which requires equal treatment in regard to social advantages, which also includes financial grants for children of workers who are students (Bernini).
The plaintiffs were children of frontier workers employed in Luxembourg, who would not receive student aid, however, because they had not resided in Luxembourg. The Court found the residence requirement to be indirectly discriminatory. Luxembourg replied that the measure was justified as a means of „increasing the proportion of residents with a higher education degree in order to promote the development of the economy“. The Court accepted this as a legitimate objective able to justify differential treatment, and also recognized that a residence requirement could be an appropriate instrument to achieve that goal.
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17 July 2013/
By Marek Zilinsky
Infringements of antitrust law can cause serious harm to consumers and businesses in the European Union. Under EU law the victims of infringements of antitrust law can claim compensation for the actual loss, for loss of profit and payment of interest accruing from the moment of time the harm occurred until the moment compensation is paid. Actions for damages for an infringement of national and EU antitrust law are governed by the national law of the Member States. To ensure the effectiveness of the right of the victims to claim damages the European Commission presented on 11 June 2013 a proposal for a directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (COM (2013) 404 final).Continue reading