Showing papers by "Filippo Fontanelli published in 2013"

Hic Sunt Nationes: the Elusive Limits of the EU Charter and the German Constitutional Watchdog

Abstract: In late Feb 2013, the ECJ handed down the Akerberg Fransson preliminary ruling (Fransson), a ten-page decision which tackled the unresolved issue of the application of the EU Charter of Fundamental Rights (the Charter) to domestic measures. Notwithstanding the Advocate General's effort to investigate the theoretical foundations that legitimise this projection of the Charter upon state acts, the ECJ delivered a judgment which largely followed in the pattern of its own anodyne case-law on general principles. The judgment confirmed that the Swedish measures at stake - cumulating administrative and criminal penalties for tax evaders - 'implemented' EU law insofar as they contributed to the effective collection of VAT, one of the sources of the EU's budget. As a consequence, it is for the Swedish judge to check their compliance with the Charter's norm on ne bis in idem. This decision confirms that the Charter applies to national measures that do not transpose EU legislation and happen to fall within its scope only incidentally. Regardless of the relative conservativeness of this finding, its implications are fated to displease member states and the reasoning of the Court was not compelling enough to prevent distinguishing and criticism. The first attack was promptly brought by the German Constitutional Court, which in its anti-terror database decision made clear that it subscribes only to a restrictive reading of Fransson and does not accept that the Charter applies to domestic measures whose objectives are set domestically, even if their purposes are shared by EU legislation. [PUBLICATION ABSTRACT]

Necessity Killed the GATT: Art XX GATT and the misleading rhetoric about 'weighing and balancing'

Abstract: Art XX GATT, listing the policy grounds available to WTO Members that wish to deviate from their GATT obligations, makes some of them conditional on a requirement of necessity in relation to the pursued interest. In their reports, Panels and the AB have developed the analysis of this element in two separate but interlaced tests: one whereby they allegedly perform an exercise of ‘weighing and balancing’ of the interests involved (a value-judgment), the other ascertaining the trade-restrictiveness of the measures challenged (an optimization analysis). It is submitted that an appraisal of the case-law demonstrates that this distinction is artificial, and most importantly, that no real balancing is ever performed - or in any event, relied on - to determine the outcome of a dispute (Claim 1). However, a diffuse trend of ‘strict proportionality’ is discernible in the case-law, not so much within the ‘weigh and balance’ analysis, but within the trade-restrictiveness test. The latter, therefore, is arguably less value-neutral than the quasi-judicial bodies would claim it to be, and then WTO Members tend to understand, when construing the necessity requirement (Claim 2).

Kadieu: Connecting the Dots – from Resolution 1267 to Judgment C-584/10 P – The Coming of Age of Judicial Review

Abstract: This chapter compares the most recent judgment with the three previous "Kadi" decisions. It contextualizes the 2013 pronouncement of the Court of Justice of the EU accounting for the incremental developments traceable in the various decisions and opinions of the Advocates General. More specifically, the analysis suggests a mapping of the different standards of judicial review which were discussed in the proceedings and the scholarship, showing how the different decisions and commentaries speak to different standards that can be arranged on a spectrum that goes from absolute deference to de novo review.

The Inevitable Convergence of the US and the EU on the Protection of Foreign Investments – BITs, PTAs, and Incomplete Contracts

Abstract: This paper deals with the evolution of investment chapters of Preferential Trade Agreements (PTAs). These separate chapters are comparable to self-standing Bilateral Investment Treaties (BITs), and can include both rules on investment liberalisation (non-discrimination safeguards) and on investment protection (standards of treatment afforded by the host State to the foreign investor/investment). The objective is to observe the structure and recurrent patterns of these chapters in order to detect and analyse certain normative trends. The sample of agreements reviewed is limited to the investment agreements concluded (or about to be concluded, when sufficient information is available) by the two major importers and exporters of Foreign Direct Investments (FDIs) – the United States of America and the European Union.After sketching the history and layout of the EU and US systems of investment protection (section 2), section 3 offers a breakdown of the provisions that most effectively illustrates the divide between the two models. In section 4, we examine the current impasse in the new EU’s centralised management of investment policies. Our central claim is then illustrated in section 5: in the long term, the US (NAFTA-like) template is likely to prevail over the European one, because it satisfies the need to fill the gaps in incomplete treaty regimes like those of European BITs. The Canada-EU Trade Agreement (CETA) seems to confirm this trend. In light of these remarks, we observe that future pluri- and multilateral negotiations will increasingly lean towards the NAFTA-model and gradually distance themselves from the European BIT standard (section 6).

Criminal Proceedings Against Albers

Abstract: In August 2012, the First Criminal Division of the Court of Cassation (Supreme Court or Court), the highest Italian domestic court, issued a judgment upholding Germany’s sovereign immunity from civil claims brought by Italian war crime victims against Paul Albers and eight others in the Italian courts (Albers). In so doing, the Court overruled its own earlier decisions and also reversed the judgment of April 20, 2011, by the Italian Military Court of Appeal (Military Court), which had upheld such claims relating to war crimes committed by German forces in Italy during World War II. With this ruling, the Court of Cassation put an end to its decade long effort to find an exception to the well-known rule of customary international law providing for sovereign immunity from foreign civil jurisdiction for acts jure imperii. This revirement resulted from the Court’s decision to give effect to the judgment of the International Court of Justice (ICJ) in Germany v. Italy.