The ECLR’s Editorial on Revisiting the ‘Luxembourg veto’ and Its Foundations

Jan Herman Reestman (Co-Editor-in-Chief) and Thomas Beuker (Editor) co-authored an Editorial in the European Constitutional Law Review (2017), Volume 13, Issue No. 1, 1-12. The Editorial discusses the Luxemburg veto, or more specifically the Luxembourg Compromise. The limited political and executive authority of the Union was the basis for the Luxembourg Compromise, in 1966, which resulted in the Luxemburg veto, which is an informal assurance by the six founding member states of the European Economic Community to support each other if one of them invokes a ‘vital or fundamental interest’. The Editorial explains the European Union’s struggle of imposing majority decisions on Union member states when their fundamental national interests are at stake and they are in fact reluctant or unable to implement these decisions (page 1).

The Luxembourg Compromise was born as a consequence of Charles De Gaulle’s empty chair policy. The objective of this policy was to hinder majority voting in the Council of the European Union. The Compromise made it possible that, if a Commission proposal was adopted with a majority vote and an important national interest of one of the member states was at stake, the Council would aim to reach a satisfactory solution acceptable to all member states of the Council. However, the French position was that the aim should be to reach a unanimous agreement. The adoption of the French stance gave every Council member state a veto right when a majority voting was legally conceivable (pages 1-2).

Recent references to the Luxembourg Compromise

As stated by the Authors, the Luxemburg veto has been referred on three occasions recently. It was firstly invoked in a statement by the Belgian prime minister Charles Michel. After an informal European Council meeting, in which the heads of government discussed the present state of the European Union, the common future and the result of the Brexit referendum, Michel stated that ‘I have the impression that we had more eye for each other’s interests, that there was this insight that it is impossible to impose a decision on a leader if he is unable to defend it in his parliament.’ Here, Michel mentioned the rationale behind the Luxemburg veto (page 2).

The second reference to the Luxembourg veto involved France and the United Kingdom, in June 2014. When the President of the Commission was supposed to be appointed, the British prime minister David Cameron opposed Jean-Claude Juncker as its president. Cameron attempted to block Juncker’s candidacy by exploring the possibility of the Luxemburg veto, but he failed (page 4).

Thirdly, the Luxembourg veto was referred to in the Gauweiler decision by the German Federal Constitutional Court of 21 June 2016. It stated that the Bundestag should put pressure on the government to oppose the adoption of a draft-decision, if necessary (page 5).

Dead or still alive?

The Authors of the Editorial cite the eminent German scholar Rudolf Streinz, who declared the Luxembourg Compromise dead already in 1984. Streinz also stated that the Compromise was obsolete because of the introduction of several new mechanisms, such as the Ioannina Compromise and Articles 48, 82 and 83 TFEU. The Dutch author Luuk van Middelaar followed the logic of Streinz. For him, all member states have accepted that ‘they were embedded in a constitutional order where they could be outvoted on certain important issues’.[1] Indeed, they adopted the Ioannina Compromise of 29 March 1994 (Declaration no. 7 of the Lisbon Treaty), with which the EU foreign ministers concluded to end the deadlock regarding voting weights (page 6).

The Authors, instead, believe that the Luxembourg veto is not really dead. Indeed, France and the United Kingdom used it in 1999 and Poland in 2005 (page 8). So, the Luxembourg veto cannot be dead with the Single European Act. In fact, a culture of consensus decision-making combined with an acceptance that qualified majority voting may be applied can very well coexist with an exceptional use of, or threat to use, the veto in cases of vital national interest.

The Authors claim that the driving force of the Luxembourg Compromise is still alive. The recent references to the Luxembourg veto are the consequence of two developments: the advancement of EU integration into sensitive areas for the member states and the EU’s populist challenges, emerging from the upcoming of populist governments (page 7).

The EU’s limited political and executive authority

There have been efforts made to improve the EU’s democratic life, its constitutional credentials and the efficiency of its decision-making in all the treaties from the Single European Act to the Lisbon Treaty. So, why do the Authors argue that the Luxembourg veto is still alive? In their opinion, a constitutional legal order cannot thrive on legal authority alone. The fact that a decision can be taken lawfully is not sufficient to make it acceptable to the members of the political community (page 8).

The Authors believe that there is also a need of political and executive authority. They argue that the acceptance of EU decisions is greatly facilitated by making members of the Union feel like the institutions are representing them. They also claim the EU institutions’ authority to be dependent on the capacity and will of national politicians to defend EU decisions within their national political arenas. According to the Authors, this explains the continuing importance of the veto. As to the executive authority, it is often for the member states to enact EU decisions. A member state which is unwilling or unable to comply with its obligations may indeed be fined, but there is a lack of other means of enforcement for the EU. And, as the Authors state, the use of force in settling disputes is excluded for the EU’s means of enforcement as a consequence of the essence of the EU integration (pages 9-10).

In the Authors’ mind, the Luxembourg veto is an expression of the member states’ awareness of a political imperative. Consequently, the EU institutions are more or less forced to take a member state’s opinion into account. It might be appealing to see the negotiations over voting weights and the power of large minorities as a sign of full acceptance of majority decision making and thus the end of the veto. However, the Authors believe this merely reduced the scope of the veto. Neither they see the Ioannina Compromise as a sign of full acceptance of majority decisions (pages 10-12).

Comments

According to our thoughts, the Luxembourg Compromise is dead, but its rationale and spirit are still alive. In that part, we agree with the Authors of the Editorial. There are several new mechanisms in the Lisbon Treaty which manifest the basic idea of the Luxembourg veto, for example the Ioannina Compromise which is the successor to the Luxembourg Compromise. The Ioannina Compromise is an agreement between the EU foreign ministers concluded in the Greek town of Ioannina. This agreement ended the deadlock regarding voting weights. The incentive was the enlargement of the EU with Austria, Finland and Sweden as of 1995. This expansion had consequences for the Council’s voting system. The point is that the more member states there were, the more difficult it would be for a member state to block a Council decision (see Middelaar).

Especially the United Kingdom and Spain were concerned about the effects of this expansion. Therefore, these two member states threatened to block the accession of the above-mentioned countries (see Middelaar, page 125). However, the ten remaining member states refused to accept the British and Spanish demands. So, what was the solution? The outcome of the Ioannina Compromise was that if a Council decision was opposed by 23-26 votes, the Council would make the effort to reach an agreeable solution that would be adopted by at least 68 votes. The main point with this Compromise is that it admits extra time of ‘indefinite length’ for the member states to negotiate until the Council decision may be adopted by qualified majority vote. This Compromise was accepted by all the member states (see Middelaar, page 125). Although the Ioannina Compromise is the successor to the Luxembourg Compromise, the core of the Luxembourg Compromise still lives on.

The Luxembourg Compromise has, as the Authors state, been referred to in recent years, but it has actually not been used since 2005, as mentioned above. Out of the three occasions on which it was invoked that the Authors bring up, it was only explicitly mentioned in the Gauweiler case. The Belgian prime minister Charles Michel, however, manifest the rationale of the Luxembourg Compromise, but he did not mention it explicitly. Neither did David Cameron in his attempt to block Juncker, although the French president Hollande, in response to the attempt, actually did mention it.

One could also question how the founding states of the Luxembourg Compromise cooperate today. As mentioned, it has not been used for many years, and the United Kingdom will soon not be part of the Union. In addition, since the Luxembourg Compromise was concluded in 1966, the EU’s territory has expanded vastly: it now consists of 28 member states (soon to be 27). Have the ‘newcomers’ joined the Compromise? It seems not. This becomes rather clear when looking at the adoption of Council Decision 2015/1601. Hungary, the Czech Republic, Slovakia and Romania all opposed the adoption invoking vital or fundamental interests, but none of them triggered the Luxembourg Compromise. We agree with the Authors that the reason for this could be that, since these countries were not part of the EU when the Compromise was concluded, it is simply not part of their political mind-set. In addition, none of the states that concluded the Compromise came to the rescue in the case of the Council Decision mentioned above. However, the idea that the EU should not force member states to comply with for example a decision when it is fundamentally opposed by some clearly still exists. Consequently, we think the Luxembourg Compromise is dead, although its rationale and spirit lives on.

Christofer Bjerkhoel, David Peralta, Anna Puck Lundgren and Nora Shoki

[1] Luuk Van Middlelaar, ‘Spanning the River: The Constitutional Crisis of 1965-1966 as the Genesis of Europe’s Political Order’, EUConst, 4 (2008), pp. 98-126, at pages 124-125.

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Case C-155/15, George Karim v Migrationsverket (7 June 2016)

General background

The George Karim v Migrationsverket (Grand Chamber) case concerns legal questions regarding asylum seekers in the European Union (EU). Mr. Karim, a Syrian national, applied for asylum in Slovenia in May 2013. On 20 July, Mr. Karim left the EU for Lebanon. He claims to have been outside the EU for more than three months and on 3 March 2014 he submitted an application for asylum in Sweden. After finding out that Mr. Karim had applied for an asylum in Slovenia, Swedish authorities rejected his application for asylum on the following day and made a transfer decision to Slovenia, which accepted the responsibility for taking back Mr. Karim. Mr. Karim contested the Migrationsverket’s decision and brought an action before the Swedish Administrative Court (Förvaltningsrätten i Stockholm). The Administrative Court dismissed his action on the ground that, in the case where a Member State agrees to take back an asylum applicant, the latter may challenge his transfer to that Member State only by pleading the existence of systemic deficiencies, as concluded in  Abdullahi. Mr. Karim contested the latter decision and brought an appeal to Stockholm’s Administrative Court of Appeal (Kammarrätten i Stockholm – Migrationsöverdomstolen) which made a preliminary reference to the ECJ regarding the interpretation of Regulation No 604/2013 (Dublin III Regulation) (paras 7-12).

The ECJ had to clarify the interpretation of recital 19, Article 19 and Article 27 of the Dublin III Regulation. Recital 19 aims to safeguard the right to an effective remedy in light of the Article 47 of the Charter of Fundamental Rights of the European Union regarding transfer decisions by the Member States. Article 27 establishes the right to an effective remedy. Chapter III (articles 7-15) provides for criteria for determining the Member State responsible for the asylum seeker. Article 19 establishes when a Member State‘s responsibilities cease to exist. Article 19(2) states that a Member State‘s obligations shall cease when the person concerned left the territory of the Member States for at least three months. Article 27(1) sets rules for the Member State which adopts a decision to transfer the applicant to another Member State. The Swedish Administrative Court of Appeal referred two questions to the ECJ:

(1)  Do the new provisions on effective legal remedies in [the Dublin III Regulation] (recital 19 and Article 27(1) and (5) thereof) mean that an applicant for asylum can challenge the basis of which he or she is to be transferred to another Member State which has agreed to receive him or her, or can effective legal remedies be limited to the right to an examination of systemic deficiencies in the asylum procedure and the reception conditions in the Member State to which the applicant is to be transferred (as held in case Abdullahi)?

(2) Does Article 19(2) of [the Dublin III Regulation] mean that the regulation may not be applied where the applicant for asylum shows that he or she has been outside the territory of the Member States for at least three months (para 13)?

The decision and reasoning

The ECJ first examined the second question, and it concluded that Article 19(2) must be interpreted that the obligations cease if the responsible Member State can prove that the asylum applicant has left their territory for at least three months (para 15). The ECJ explained that if the applicant had left the EU for more than three months, the later application in another Member State is to be considered a new application in the light of Article 19(2) (para 17). According to the ECJ, this is the case if the applicant can provide evidence that he left the territory of the prior Member State for at least three months before submitting the application to another Member State. Consequently, the Member State that receives the new application is the responsible Member State (para 18).

The first question, which was examined last by the ECJ, was whether Article 27 of the Dublin III Regulation read in the light of Article 19, should be interpreted so that an asylum seeker could challenge a transfer decision and invoke incorrect application of the criteria for determining responsibility in accordance with Chapter III. In its reasoning, the ECJ referred to the case Ghezelbash, which clarifies that Article 27(1) read in the light of recital 19 provides an effective remedy against a transfer decision. According to the Court this conclusion can also concern an examination of the application of the Dublin III Regulation also results in risk of inhuman or degrading treatment in accordance with Article 4 of the Charter of Fundamental Rights of the European Union (para 22). The ECJ continued by stating that the second subparagraph of Article 19(2) establishes the framework for the process within which the third-country national in question made an asylum application in a Member State and then left the territory of the EU for at least three months before making a new asylum application in another Member State (para 23). It also stated that when a new process is necessary it must be distinct from the first. Thus, the answer to the first question is that: Article 27(1), read in the light of recital 19 thereof, must be interpreted so that an asylum applicant may, in an action challenging a transfer decision, invoke an infringement of the rule set out in the second subparagraph of Article 19(2) (para 27).

Comments
Advocate General Sharpston, in her opinion, discussed the purpose of the Dublin III Regulation and stated that it had been adopted in the light of the principle that Member States should have mutual trust in regard to the level of protection guaranteed for asylum seekers. The purpose was to avoid that the system would be blocked due to different regulations in Member States as well as to uphold legal certainty and to avoid forum shopping. All above in order to make the process more efficient both for applicants and Member States (para 17). It can be questioned if the purpose behind the Dublin III Regulation is contrary to the outcome of this case, since in some way it encourages forum shopping because now the applicant, if he or she is disappointed with the process, they can in practice leave the EU for at least three months in order to start a new process in another Member State. In regard to forum shopping the authors agree with the reflection made in a previous post published on this blog, which commented on the Advocate General’s Opinion.

As stated above, the purpose of the Dublin III Regulation was to make the process more efficient, and it can thus be discussed if the possibility to start a new process in a second Member State aims to achieve this. From the perspective of the EU as a whole, it can be argued that Member States have to do the work behind the process twice, which is both insufficient and costly.

Through Karim, the ECJ was to determine whether the new provisions of the Dublin III Regulation on the right to an effective remedy had been limited to checking the existence of systemic failures in the asylum procedure and reception conditions in the receiving Member State as decided in Abdullahi. In the Abdullahi judgement from 2013 which was decided on the basis of the Dublin II Regulation and under the Common Asylum System, the ECJ adopted a restrictive interpretation of the grounds for appeal. In that case, the Court found that asylum seekers could only challenge a transfer decision if they relied on the existence of systemic failures in the procedure and the conditions of the reception of asylum seekers in that Member State which constitute serious and proven grounds for believing that they will run a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union. If the rationale of Abdullahi had been applied to these cases, Karim and Ghezelbash, the applicants would not have been entitled to challenge the possible incorrect application of the criteria for determining the Member State responsible for examining an asylum application. The difference between these decisions is based on the new provisions of the Dublin III Regulation, contained in Articles 27 and 19, and on the amendments made since its last recast. The judgment obviously recognized some protection for asylum seekers by giving them the right to invoke, in the context of an appeal against a transfer decision, the erroneous application of a criterion of responsibilities set out in Chapter III. In other words, the ECJ limited the scope of the Abdullahi judgment to the Dublin II Regulation only.

To conclude, the preliminary ruling in the Karim case has clarified that Article 19(2) of Dublin III Regulation means that if it can be established that the applicant had left the EU for at least three months, the later application in another Member State is to be considered as a new application and the latter are therefore the responsible Member State. Furthermore, Article 27(1) read in light of recital 19 of the Dublin III Regulation should be interpreted that an applicant has the right to challenge a transfer decision on the basis of an infringement of Article 19(2).

Denice Wiklund, Ernestas Vaiciunas, Petra Giessbeck, and Sherimane Abdoun

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Doubling the number of judges of the General Court – A breakthrough or blow for justice?

The General Court is facing an increasing workload, and questions on whether legal redress in the European Union (EU) can be guaranteed within a reasonable time have started to arise. On 3 December 2015 a Regulation (Regulation of the European Parliament and of the Council amending Protocol No. 3 on the Statue of the Court of Justice of the European Union) was therefore adopted with the aim of reforming the General Court in order to lessen the workload of the judges. However, the reform has been subjected to criticism for a multitude of reasons, one of them being whether the envisaged benefits of such a reform would really be actualized?

Introduction

The General Court is the court of first instance (as it was also previously known before the entry into force of the Treaty of Lisbon) for many decisions within the competence of the EU initiated primarily by the Commission and other EU institutions and bodies.
Previous to the reform, the General Court was composed of 28 judges (see Art. 48 of Protocol No. 3 on the Statute of the Court of Justice of the European Union). The reform includes three stages, which by 2019 will lead to the doubling of the number of judges at the General Court, i.e. from 28 to 56 judges. They will be appointed by the “common accord” of the Member States’ governments, and each Member State will nominate a judge. However, this reform does not modify the requirements for the appointment procedure.  The main reason for the reform is to avoid unnecessary expenditures while reducing the waiting period for a ruling.

On 23 March 2016, the first step of the reform was partly enacted where it was decided that 15 judges would be appointed to the General Court. However, this resulted only in seven new appointments, while eight judges already sitting on the Court have been re-appointed according to the partial renewal of the Court. The first stage of the reform is yet to be completed as five more judges will have to be appointed. Thus, in total, there will be 12 new judges appointed according to the first step. The second stage includes appointing seven new judges which are in fact transferred directly from the Civil Service Tribunal which will be merged with the General Court. Lastly, the third step is to appoint nine new judges in 2019.

Reasons for reforming the General Court

Ever since its creation, and as a consequence of its progressive jurisdictional expansion, the General Court’s caseload has rapidly been increasing from 600 cases per year in 2010, to 912 in 2014. This increase is immensely time consuming and the workload of the General Court prevents  it from delivering judgments within a reasonable time. The time to issue a judgment is currently two years on average, which is twice as long as what is usually seen as permissible. Concerning state aid, intellectual property and competition cases, the average time to deliver a judgment is between four and five years. This has created many issues, according to Peter Teffer, journalist of the EU observer. He reports in his article, which is based on a Q&A published on 23 June 2015, that it has, inter alia, caused problems for litigants since their important financial resources pending a judgment must be kept aside. This, in turn, negatively affects economic growth and jobs. As the Q&A explains, the increasing number of judges would allow the General Court to give sufficient and satisfying attention to cases brought before it. There would for example be a possibility to deliberate in larger chambers more often, in order to enable a more thorough discussion on cases regarding questions of significant legal value.

The Q&A further explains that the costs for appointing additional judges would be rather limited (€13.5 million per year), in comparison to what is claimed for delays in judgements in different actions for damages (€26.8 million). According to Franklin Dehousse, judge of the General Court, however, the doubling of judges is “manifestly excessive” and amounted to “useless spending’s” (see his paper).

According to the Article 3 of the Regulation establishing the reforms, the CJEU will have to report on the functioning of the General Court, and make legislative proposals to amend its statute where appropriate. Thus, the Regulation entails a five-year project.

The General Court reform, target missed?

In a very simplistic way, in the Q&A, the Council seems to defend the reform on the grounds of economic savings and the reduction of case backlog. However, this agreement faces a lot of criticism from scholars (such as Dehousse) who believe that this purely mechanical approach will not resolve the situation. Indeed, according to a part of the doctrine, doubling the number of judges would risk to miss the need to find a balance between the right of the individuals to access justice, and the cost of such a reform.

What could have been of particular interest, but has been regularly disregarded by the EU institutions, is the alternative of the creation of specialized Courts. The ability to create such instances was ensured through article 257 TFEU. Nevertheless, this possibility was only used once, creating the Civil Service Tribunal, which will now be incorporated in the General Court. The tribunal however, proved to be ineffective mainly due to the poor amount of cases being brought before it. Nonetheless, recital 3 in the preamble to the Regulation refers explicitly to the complexity and volume of for example “intellectual property cases”, which was one of the reason behind the reform. One could wonder if it could have been preferable to create a specialized intellectual property court in that area, such as the Unified Patent Court (for a better understanding, see this blog post), which is already in process of establishment. Furthermore, it is likely that such a court would not risk being ineffective as the Civil Service Tribunal was proven to be.

Not taking into account this possibility, clearly constitutes a missed opportunity to achieve the objective of the case backlog reduction. This possibility could ensure a better practical protection of individuals rights through Courts that employ judges and legal secretaries with legal expertise in special matters. To counter this idea, the Council mentions in the Q&A that the creation of specialized courts in this instance would not be a viable option for several reasons. Mainly, specialized courts would lead to an increased risk of the inconsistency of EU law. According to the Council, it would be problematic if the three different European courts could have jurisdiction to rule on the same legal question of a case through different judicial procedures. Moreover, the Council argues that specialized courts “add complexity” and lead to unnecessary expenditures.

While the first argument of the Council seems reasonable, it would not exclude the same outcome when increasing the number of judges to 56. Will there really be a uniformity of interpretation and consistency between all the different chambers that will compose the court? The answer cannot certainly be answered in absolute terms which is why the argument of the Council does not seem to hold much substantial weight.  Furthermore, the creation of a new specialized court would not be revolutionizing since it is a system already familiar to national legal orders, where specialized instances are established already. There may be grey areas, but it seems as if there are few issues concerning the question of competing jurisdictions in domestic legal orders regarding specialized courts. From the litigant’s perspective, it may be easier to foresee where an application should be submitted. However, this does not diminish the fact that the legal expertise inherent in a specialized court may enable a more thorough deliberation of cases. With less expenditures due to the lower number of judges appointed to a case, it seems as a more profitable and effective solution rather than having larger and more chambers sitting in the General Court.

All in all, even though the reform is needed, one could wonder whether this is the best way to solve the issue of caseload concerning the General Court. The problem could be better solved through establishing a specialized court. Supporting this view, Marc Jaeger, the president of the General Court, in 2009 stated here that “[i]t is therefore the second avenue which should be explored, namely that of reforming the judicial structure”.

Negin Hamedanian Torghi, Pierre Lempereur, Alexandra Mihaltan

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P v. Q, Case C-455/15: Jurisdiction and recognition of a judgment on parental responsibility

On 19 November 2015 the European Court of Justice delivered a judgment in the case of P v. Q (C-455/15) concerning jurisdiction and recognition of a foreign judgment on parental responsibility.

The facts:

P (father) and Q (mother) had two children together: V, born in 2000, and S, born in 2009. The couple divorced in 2003, and the court ordered that the child should live with the mother but both parents shared rights of custody. In 2005, the family left Lithuania and moved to Sweden where S was born. Both children speak Swedish and attended school in Sweden. In 2013, the father discovered that the mother and their two children had disappeared because, allegedly, the father had committed offences. P was not allowed to have contact with the children. Few months after, the mother and the children left for Lithuania.

Shortly after, the father made applications seeking the Ministry of Foreign Affairs and referring court which were dismissed and the dismissal was confirmed on appeal. In October 2014, the Swedish court made an interim order granting the father sole custody of S according on Article 8(1) of Regulation No 2201/2003 (The Regulation). However, in 2015, the Lithuanian district court ordered the children to reside with the mother and for the father to pay maintenance. The father submits that the judgment delivered by the Lithuanian Court must not be recognised according to Article 23(a) of this Regulation which allows non-recognition on the ground of public policy.

Legal questions:

In accordance with Article 24 of the Regulation, P conceded that there was a general prohibition of reviewing the jurisdiction of the court of the Member State of origin. He argued that the provision does not refer to Article 15 of the Regulation on which the Lithuanian district court had based its jurisdiction. According to him, the Lithuanian Court deduced from the fact that another Lithuanian court had refused to order the child’s return on the basis of Article 13 of the 1980 Hague Convention that that child was still habitually resident in Lithuania.

The Swedish Court made a reference for preliminary ruling to the Court of Justice of the European Union (ECJ) asking whether the public policy rule laid down in Article 23(a) of the Regulation should be interpreted as meaning that provision allowed a court of a Member State which considered that it had jurisdiction to rule on the custody of a child to refuse to recognise a judgment of a court of another Member State which had ruled on the custody of that child.

The Opinion of Advocate General Melchior Wathelet:

Advocate General Melchior Wathelet states that Articles 23(a) and 24 of the Regulation should be interpreted as ”meaning that the public policy of the State in which recognition is sought cannot be raised as a bar to the recognition or enforcement of a judgment given in another Member State solely on the ground that the Member State of origin failed to comply with the rules on jurisdiction contained in [the] Regulation” (para. 87).

Referring to case Povse (C-211/10 PPU) the Advocate General states that Article 23(a) of the Regulation expressly and exhaustively contains the grounds for non-recognition of judgements relating to parental responsibility. He also states that when interpreting the article one can make an analogy with the case law on Article 34(1) of Regulation 44/2001. In the light of the decision in Diageo Brands (C-681/13), ordre public should be interpreted as a judgment that would constitute a “manifest breach of a rule of law regarded as essential in the legal order of the State in which enforcement is sought”. The Advocate General also refers to the reasoning in Diageo Brands that goes beyond the wording of the article and expands the definition of ordre public to include not only what is considered to be a “manifest breach of a rule of law regarded as essential” in the legal order of the member state but in the EU legal order as well.

In this case the Advocate General claims that there has been no reference made to a breach of ordre public within the Swedish or the EU legal order. P claims that the Lithuanian court has breached Article 15 of the Regulation and that this breach is serious enough to justify a review of the court’s jurisdiction, since the prohibition in Article 24 only explicitly refers to Articles 3-14. The Advocate General though states that since Articles 15 is to be seen as a complement to Articles 8-14, a breach of that article cannot be seen as a ground for review according to Article 24, and is not a breach serious enough to be classified as ordre public.

The Advocate General here emphasises the principle of mutual trust upon which the free movement of judgments is based, stating that this cannot be limited due to an incorrect assessment of a court’s jurisdiction, no matter how serious that violation would be (para. 71).

The decision:

On 19 November 2015, the ECJ agreed with the Advocate General and ruled that “Article 23(a) of [the] Regulation […] must be interpreted as meaning that, in the absence of a manifest breach, having regard to the best interests of the child, of a rule of law regarded as essential in the legal order of a Member State or of a right recognised as being fundamental within that legal order, that provision does not allow a court of that Member State which considers that it has jurisdiction to rule on the custody of a child, to refuse to recognise a judgment of a court of another Member State which has ruled on the custody of that child”.

Comment:

In Cassis de Dijon (C-120/78), the Court of Justice first established the principle of mutual recognition as a general constitutional principle of the common market, and this principle was later integrated into other fields of law, such as family law. The prohibition on reviewing the assessment of the jurisdiction of a member state, and to try the circumstances of the case again, forces Member States in a way to accept wrongful interpretation and application due to loyalty to the principles of EU law (mutual recognition) in cases where the ordre public cannot be invoked. Instead, there is the possibility to use infringement procedures, a measure that is very rarely used between Member States.

In other words, it is not for the Member States to act as judges in regards to the interpretation and application of EU law made by other Member States. Although this is all very understandable, does it in some fields of law, for example this one, compromise the rights of the people of the Member States in favour of another state?

Khaleda Abdul Khalil, Linn Glännestrand, Samantha Guillet

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Kochenov and Pech on Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and Reality

Introduction

The common fundamental values the European Union (EU, the Union) is built on are found in article 2 TEU, which include the rule of law. An increasing number of internal threats and/or breaches of the Union values, i.e. ‘rule of law crises’, has lately occurred. Member States (MSs) tend to undermine the rule of law and the Union’s legal framework is considered insufficient to address the breaches. Both the Commission and the European Council (the Council) have, therefore, respectively presented new proposals aiming to address such situations. The authors Dimitry Kochenov, professor of EU Constitutional Law, and Laurent Pech, professor of EU Public Law, provide a critical review of these new rules, followed by recommendations in the last issue of European Constitutional Law Review (Volume 11, Issue 03, December 2015, pp 512-540). In essence, the authors are optimistic of the Commission’s new framework, and even though its efficiency is questioned, they consider it a better solution than the Council’s response.

Legal issues

Pursuant to article 258 TFEU, the Commission can initiate infringements actions if MSs fail to comply with their EU obligations. A specific violation of EU law is required for the Commission to start infringement actions. Article 2 TEU lacks justiciability and cannot itself pose as a legal basis in legal proceedings, but needs to be taken in conjunction with article 7 TEU, the “nuclear option”. If applied, the result of the nuclear option is the suspension of certain Treaty rights, such as voting in the Council. Article 7 TEU provides that the values found in article 2 TEU are to be protected. Accordingly, sanctions can be adopted against a MS when/where there is a clear risk for a serious breach, and when the values are breached in a serious and persistent manner. The procedural requirements of article 7 TEU somewhat differ between the two situations, but one common feature is that there is a high threshold making the article quite impossible to apply. This is easily demonstrated by the fact that the article has never been used. The current legal framework within the Union lacks adequate mechanisms to address domestic systemic threats and violations of the rule of law by the MSs. It is therefore important to develop adequate tools so the current gap between article 258 TFEU and article 7 TEU is filled.

The Commission’s new framework

The Commission wants to create an early warning tool in order to prevent threats to the rule of law by entering into discussion with the MSs (COM(2014)158). This tool is supposedly preceding the “nuclear option” and meant to be used only for “systemic” threats. This pre-article 7 procedure is divided into three parts. The first is an assessment of a possible systemic threat to the rule of law in a MS. If so, a “rule of law opinion” is sent to that MS. If the Government takes no sufficient actions against the threat, the procedure will move into its second stage. A recommendation that may include specific instructions and a deadline in order to stop the threat to the rule of law is then given to the Government. Lastly, at the follow-up stage, the Commission checks if the MS follows this recommendation. If not, it has the option to trigger the nuclear option.

Institutional confrontation

In the opinion of the authors, the weakest feature of the Commission’s proposal is its potential inefficiency. First of all, the framework does not clearly define its triggering criteria, especially “systemic threat”, and the Commission does not share its triggering power with MSs or other institutions. Further, the authors are critical of the confidential nature of the dialogue in question since it will prevent a “name-and-shame” environment. Also, it relies on a dialogue between a MS and the Commission. This can be problematic if a challenging attitude of the MSs towards EU values is combined with the non-binding characteristic of the recommendations. Finally, the new procedure could end up as inefficient as Article 7 TEU.

The authors are, however, even more critical towards both the Council’s attempt to stop the Commission’s proposal and its introduction of an annual dialogue. This annual dialogue is described as a “poorly disguised attempt to pre-empt any activation” of the new pre-Article 7 procedure. Further, the Council’s legal service has expressed its opposition to the Commission’s proposal, alleging an unlawful power-grab by the Commission. This action by the Council is not surprising according to the authors, since the power of scrutiny outside EU law areas is a sensitive issue for some Governments.

The authors question the Council’s solution on two main points. Firstly, it is a soft mechanism, and as such it has often been criticised for not being effective. Secondly, the authors point out that it calls for an evidence-based approach, but an evidence-free approach would be absurd and not supported anyway, making the reasoning irrelevant. Finally, the authors give two potential explanations for the Council’s annual dialogue: either the Council is in denial of how the rule of law situations are in some MSs, or it  was not able to conclude another agreement due to the lack of cooperation of some MSs.

The authors emphasized several positive aspects of the Commission’s new framework. For example, they considered that the Commission was smart to build further on already existing functions, so as not to require treaty amendments. It is also argued that the Commission already implicitly had the competence stated in the framework. Further, the facts that the pre-Article 7 procedure can work alongside the traditional infringement proceedings and that the Commission is ready to consult expert third parties are both embraced. In conclusion, the authors stated that, even though the Commission framework is not without faults, it is still preferable to the Council’s solution.

Suggestions by Kochenov and Pech

Kochenov and Pech suggest that the European Parliament and the Commission cooperate to enable progress, not only within the rule of law area, and that the weak points of the Commission’s proposal should be fixed in order to enhance its efficiency. Further, the authors support the idea of a European Scoreboard for Democracy and Rule of Law and Fundamental Rights, a monitoring tool that would allow for transparency and based on set criteria. Also, several Treaty amendments are put forward by the authors, for example a lower voting threshold for article 7 TEU combined with varying and clear penalties.

Comments

The European Parliament (EP) in its 5.4.2016 draft report seems to be optimistic about the Commission’s proposal. Knowing that the transfer of a new competence to the EU is followed by the mobilization of new funds, the EP seems to appreciate that the Commission has built the proposal on its already existing competences, therefore covered by the existing budgetary allocations. Yet, the EP is critical over the appropriation of pre-Article 7´s triggering power. It requests the conclusion of a Pact that provides cooperation between MSs and the Union´s institutions in the application of Article 7 TEU. The EP adds that the Pact´s preventive and corrective mechanisms shall apply to the MSs as well as to the three main institutions of the Union.

As it has been pointed out in an Editorial of the Common Market Law Review (pages 627-8), the common EU values, inter alia the rule of law, must be protected, and not even democracy could be used to weaken them. The criticism of the Meijers Committee (a standing committee of experts on international immigration, refugee and criminal law) towards the Commission’s dialogue approach (Note on the Commission Communication, p.2) in consort with the inefficiency of dialogues with non-EU countries (EP Resolution on the Annual Report on Human Rights in the World 2009, para. 157) further weakens the proposals.

It is truly questionable why both institutions have chosen a dialogue approach to “solve” the problem. The end result is that the nuclear option will be relied on to actually make a difference. Thus, so far has the provision never been used, due to a high voting threshold, even though serious violations of EU values are of legitimate concern for the whole Union. The authors suggested a lower threshold to apply to the article 7 procedure, as also advocated by several scholars. Article 7 has been called an ‘empty gesture’. However, its scope goes beyond EU law. A threshold lowering could lead to an actual application of the article in question, but it may also infringe national sovereignty more than at the present. As such, it is important to strike a fair balance between the sovereignty of the MSs and the protection of values. Otherwise, the lowering is not a realistic future since the MSs’ unanimity is required to achieve it. Amendment of a treaty is, however, a somewhat difficult procedure and it would probably not be supported by the MSs. Even the EP’s position is clear enough in its draft as it suggests a Treaty amendment of the unanimity requirement in areas relating to respect for and protection and promotion of fundamental rights.

At the end of the day, Kochenov and Pech seem a bit inconsistent. They are critical to one proposal more than the other, even though both proposals are based on the assumption that dialogues can solve the present issues.

Yasmin Semmane, Julia Steen and Anton Öberg

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The Brexit debate

This post reflects on an article posted by Osmi Anannya on 4 March 2016 (The Brexit Debate) that opens up for a discussion about the coming referendum and touches upon some of the advantages and disadvantages of potentially leaving the European Union.

The word “Brexit” is a merge between the words Britain and exit. On 23 June, a referendum will be held in the United Kingdom (UK) to know if they should leave or remain in the European Union. In order to change the terms of UK’s membership, Prime Minister David Cameron secured an agreement with other leaders of the European Union (EU). After the referendum, and if the UK votes to remain in the European Union, this deal will take effect immediately.

What is the deal?

The deal concluded by the Prime Minister would give the UK a special status in the EU. The main points are especially about the child benefit, the migrant welfare payments, keeping their own currency (pound), the protection of the City of London and running their own affairs and, in general, being more independent.

What will be the effects on the UK?

If British people vote for leaving the EU, it will affect several points in a political, economic and social way, but also concerning the free movements and competition law with the EU. According to some political parties, British national policy is not to be dictated by the European Union.  The UK can lead as they want employment rules, public education or the labour market. Euroscepticism is one of the main drivers of political ideologies for some British parties.

From an economic perspective, the project Brexit represents the liberation from debilitating EU regulation. It is also the opportunity to improve their trade with the rest of the world. The UK would keep its economy against external competition. The rules of competition of EU law would not be applicable. Not supporting other states would not be a priority and UK would be able to focus on its own economy. Moreover, the UK does not use Euros. It can be one of the reasons why it would be easier to be out of the EU.

If the UK gets out of the EU, they will have control over their own market and will be able to enter different trade deals with others countries. The UK wants independence. We can explain it first of all with the geography. The UK is detached from Europe as an island country. Compared to the other countries in the EU; it also had the Commonwealth and a positive relationship with the United States.

What do other nations think?

In German media a potential Brexit is presented as a most serious matter which would likely cause the status of the EU to decrease in the eyes of the rest of the world and the stability to be threatened, according to articles published in Frankfurter Allgemeine and die Welt. The Chancellor Angela Merkel, as well as the German Minister of Finance Wolfgang Schäuble, both openly encourage the UK to stay in the EU. According to Frankfurter Allgemeine there is also the fear of Germany’s relationship with its third biggest country of export becoming a lot more complicated and unprofitable, at the same time as Germany would have to take more financial responsibility to cover for the loss of British contribution. The fear is also that the EU would lose a nation of important foreign relations, as stated in the analysis “The United Kingdom and the European Union:What would a “Brexit” mean for the EU and other States around the World?” (p. 23) which was published by the made by the German Council of Foreign Relations (DGAP).

In some regards France and the UK have very different ideas of what the EU should look like. In others they are much more alike, for example when it comes to their similar approach to foreign policy (DGAP-analysis, p.11), a relationship that makes the French opinion of a potential Brexit quite complicated to define. Overall France seems to have a very different approach to the Brexit debate, shifting focus from what the EU would be missing out on if the UK left, to what the negative consequences would be for the UK, as stated by both President François Hollande and the Minister of Finance Emmanuel Macron.

The official standpoint of the United States was made clear when President Barack Obama encouraged the UK to stay in the EU, a controversial article in which he argues that a Brexit  would negatively affect the unity in Europe and making it harder to cooperate at an international level to fight terrorism, economic setbacks and climate change. The fact that the UK works as perhaps the strongest link between the EU and the US is another factor, and the UK leaving the Union would be followed by consequences for the transatlantic trade as well (DGAP-analysis p.17). Another potential motive (as discussed in the media and as President Obama briefly mentions) is the ability to face potential aggression from Russia, which requires a strong European Union and balance between the world’s leading nations.

The  possible negative repercussions on the UK and the European Union

If Brexit takes place many challenges would occur in the UK concerning trade market, migration, changes regarding jobs, legal system and the law-making process (see BBC News, 26 February 2016). The UK would have to negotiate a new trading relationship in order to not face tariffs and other restrictions when firms sell goods and services to EU countries.

As the EU is the UK’s main trading partner, constituting 52% of the total trade in goods and services, the withdrawal would create barriers, such as exports to the EU might face 15% tariff and the imports a tariff of 10%. It is considered that millions of jobs would be lost. Further, since there are 2.2 million British citizens living and working outside the UK, the ability to live and work in other member states would be made more difficult and this could entail visa and residence permit requirements.

As regards of migrants, if the EU allows the UK to have access to the free market then the UK should allow free movement of persons. The British Office for Budget Responsibility stated that the economy depends on migration labour and the taxes paid by immigrants in order to fund public order. The EU benefits from the UK’s contribution to the EU budget, it is one of the 10 member states who pay most, but this contribution cannot be compared with the provided benefits of the involvement in the single market.

The UK would not be as involved in world change if it left the EU, it would not have influences in Brussels, Berlin or Paris, also in transnational issues such as the environment, security and trade.  Dominic Grieve, former Attorney General, informed that British immigrants in the EU countries would be viewed as ‘illegal immigrants’ if the UK left the EU and if it did not had the free movement as part of a new agreement.

It is hard to foresee the consequences of the UK leaving the EU in terms of their foreign relations, since other member states, as well as the US, are strongly advising them to stay. In theory it might be easy to deregulate the UK’s free trading economy but in practice it could cause a serious political conflict within the UK, since a large part of the British population would prefer the UK to remain a member of the EU.

Khaleda Abdul Khalil, Linn Glännestrand and Samantha Guillet

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O v Bio Philippe Auguste SARL, Case C-432/14 of 1 October 2015

A preliminary ruling concerning non-discrimination on grounds of age

Facts and procedure of the case

A French student (the applicant) had a fixed-term employment contract at the company Bio Philippe Auguste SARL (Bio) during his university vacation. At the end of his work period, end-of-contract payment was denied by the company. Such payment is provided as compensation for the insecurity of a fixed term worker’s situation, and should be paid when the expired contract is not renewed as an indefinite period contract. [Article L. 1243-8 Code du Travail].

The applicant brought an action before le Conseil des Prud´hommes, the French Labour Tribunal (the Tribunal), seeking the end-of-contract payment and compensation for dismissal without real and substantial cause. Bio (the defendant) justified the non-payment by referring to article L. 1243-10.2 Code du Travail (Labour Code) which states: “The end-of-contract payment shall not be payable […] Where the contract is entered into with a young person for a period falling within the school holidays or university vacations”. As for the applicant, he claimed that this article was contrary to article 6 Déclaration des droits de l’Homme et du citoyen de 1789 (Declaration of the Rights of Man and of the Citizens 1789), a constitutional provision that guarantees the principles of equal treatment and non-discrimination on grounds of age. Further, the applicant argued that the French legislator had not provided any definition of the term “young” in the relevant provisions.

The question of constitutionality was first referred to the French Conseil Constitutionnel (the Constitutional Council). The Constitutional Council stated that the term “young” has been defined in the Code de Sécurité Sociale, the French Social Security Code. In fact, article L. 381-4 prescribes an age-limit below which students must be affiliated to the national social security schemes by virtue of their enrollment at a school or university. Before reaching this age-limit, article L. 1243-8 Labour Code does not apply to students. Therefore, the applicant´s claim regarding the absence of a definition of the term “young” was refuted for lack of factual basis. The Constitutional Council further stated that such a legislated age-limit concerning students is not contrary to the principle of equal treatment [para 12].

When it comes to the end-of-contract payment, the Constitutional Council’s conclusion was that students employed under a fixed-term contract for a period during their school holidays or university vacations are not in the same situation as either students who work at the same time as pursuing their studies or other employees on fixed-term employment contracts. The declared purpose of such a bonus to the salary is specifically to compensate the insecure situation of the employee. Young students working during their vacations or holidays do not benefit from the end-of-contract payment since they are not in an insecure situation. Therefore, the Constitutional Council found no violation of the national Constitution. Thus, the difference in treatment in this case is justified by a difference in situation, directly in line with the purpose of law. [para 13]

Finally, the Labour Tribunal decided to refer the following question to the European Court of Justice (ECJ, the Court) for a preliminary ruling, is the general principle of non-discrimination on grounds of age preclude article L. 1243-10 Labour Code?

Findings of the Court

Already in the groundbreaking case of Mangold (C-144/04), the Court stated that Member States possess a broad discretion within the field of social and employment policy, both with regard of pursuing specific aims as well as the necessary measures thereof. This jurisprudence was reaffirmed in several cases (see Specht, para 46) as well as in this case where the Court concluded that the relevant national legislation falls within the Member States’ discretion in the fields of social policy [para 30].

In this case, the Court agreed with the Constitutional Council’s position and stated that in the light of the aim of article L.1243-8 Labour Code, the applicant’s situation is not objectively comparable to those of the employees included in the provision. As the French Government stated, the employment in question is to be considered both ‘temporary and ancillary’, since students intend to continue their studies when their holidays come to an end. The Court follows that line of argument. Also, the Court finds that other categories of employees, included in article L. 1243-10 as for example seasonal workers, are also excluded from such compensation. They are considered to be in a comparable situation to the applicant in terms of insecurity. Hence, two categories of workers exist, those who are entitled to end-of-contract payment and those who are not. It is not age discrimination to treat those different groups of workers differently. The Court finally concluded that the principle of non-discrimination, given specific expression in the Directive 2000/78 EC, is not to be interpreted as precluding domestic law as the one presented in this case. [see para 33, 37-9, 40].

Comments

The Court confirmed its jurisprudence (Maruko, para 67-73; Römer, para 42) in this case concerning the evaluation of discrimination (see para 32). The assessment should be done in a concrete and specific way in view of the benefit concerned. Also, the compared situations must be comparable but not identical. If these conditions are fulfilled, discrimination has occurred. According to the Arcelor case (para 25 and 26), comparability of situations should be evaluated in the light of the questioned provision´s aim. When it comes to national legislation in question, the aim is to help provide security for people in insecure employment situations due to fixed-term-contracts. In the present case, the ECJ accepted the arguments of the French Government and the defendant, saying that the situation of young students is not objectively comparable to that of other employees with fixed-term-contracts.

However, one may argue that some students’ situations are comparable to fixed-time workers when it comes to insecurity of their situations, even though they return to their studies after the vacations and are covered by the social security scheme. The Constitutional Court never assessed the financial impact of denying end-of-contract payment on students, with the knowledge that the French social scheme unevenly covers its students (circulaire n° 2015-101 du 9-6-201). Since, the social security scheme is dependent on the income of one’s parents, some students are less entitled to financial help than others or not entitled at all. Therefore, an additional 10% (the end of contract payment) could contribute a lot to the financial situation of some, especially if the student gets neither, or limited, social scheme nor parental aid. While the ECJ could have been unaware of the details of the national situation, one may assume that the Constitutional Council should have known about it. Therefore, the Constitutional Council ought to have realized that a blanket exception to such entitlement is not proportional or effective to reach the aim of the legislation. Actually, it risks discriminating those in comparable situations on the ground of age. An exception based on actual guaranteed income instead of age (young), connected to being a student, would be preferable since it limits the risks for discriminatory treatment.

Previously, the ECJ has also left it for the referring court to determine the comparability in the case [see Maruko para 80(2); Römer para 67(2)]. Theoretically, the ECJ is not supposed to decide on the merits of a case when it gives a preliminary ruling. In this case, the Court blankly accepted the Constitutional Council’s arguments and answered a question in substance, stating that two situations are de facto incomparable. Therefore, one could argue that the ECJ overstepped its determined role and acted ultra vires. Thus, it is questionable why the ECJ decided not to leave this interpretation for the referring court to decide, which would have been in line with the case law. The ECJ clearly missed an occasion to send back the case to the referring court for it to decide on the merits of the case.

Finally, it is an exceptional practice for the ECJ to decline jurisdiction with regards to preliminary rulings. In this case, it is questionable whether it was admissible since a preliminary question must derive from a genuine dispute and can not be a general or hypothetical question [Foglia para 11-13]. Due to the circumstances of the case, inter alia the defendant’s lack of interest, it was observed by the Court that the dispute could be fictitious. The Court, however, concluded that the dispute could be genuine, since the contract was completed, and therefore declared it admissible [para 15,16,19]. Here, one may argue that the Court missed out on an opportunity to decline the case already in the initial step when deciding on the admissibility. As such, the Court had not only one, but two different reasons to hand the case back to the referring court to decide on factual grounds. But it did not do so, either on the question of admissibility or on that of comparability.

Yasmin Semmane, Julia Steen and Anton Öberg

Posted in Case-law | Tagged , , , | 2 Comments