Showing papers in "Common Market Law Review in 2012"

Reverse SolangeProtecting the essence of fundamental rights against EU Member States

Abstract: This article presents an innovative approach to EU fundamental rights protection against the Member States. It draws on recent studies which have shown that the fundamental rights situation in a number of Member States is an increasing cause for concern, particularly with respect to media freedom. However, while the Union intensely scrutinizes the fundamental rights situations in candidate countries, there is scant action so far in case of serious problems in the Member States. Although the latter are comprehensively committed to "respect for human rights" according to Art 2 TEU and subject to the enforcement mechanism foreseen by Art 7 TEU this has proven to be of very limited practical impact. Therefore, the article suggests opening up "respect for human rights" for individual legal actions via Union citizenship. Its starting point is the recent jurisprudential development of the "substance" of Union citizenship in Ruiz Zambrano. This substance can and should basically be defined with reference to the essence of fundamental rights enshrined in Article 2 TEU. To put this into practice the article suggests a reverse Solange-doctrine, applied by the ECJ towards the Member States: outside the scope of the EU Charter of Fundamental Rights the Member States remain autonomous in fundamental rights protection as long as it can be presumed that they ensure the essence of fundamental rights enshrined in Article 2 TEU. However, should this presumption be rebutted, the "substance" of Union citizenship - within the meaning of Ruiz Zambrano - comes into play. On this basis Union citizens can seek redress before national courts and the ECJ.

Legal developments in the Economic and Monetary Union during the debt crisis: the mechanisms of financial assistance

Abstract: The Union and its Member States have given a double response to the sovereign debt crisis: the creation of mechanisms of assistance and the strengthening of economic governance. Both responses have contributed to substantially redesign the architecture of the economic and monetary union. This article focuses on the mechanisms of assistance - most of which have been agreed intergovernmentally outside the EU Treaties -, describing them and examining their most significant legal implications. These are their compatibility with the no bail-out clause, the limited revision of the Treaties to include new Article 136(3) TFEU, the use of Article 122(2) TFEU as the only legal basis under the Treaties to provide financial assistance, the relationship between the intergovernmental mechanisms of assistance and the law of the Union and the judgment of 7 September 2011 of the German Constitutional Court on the compatibility of mechanisms of assistance with the German Constitution. Mechanisms of assistance are presented as part of an unavoidable process of further integration of the Member States that share a common good, the euro, a process that might lead to fundamental changes in the EU Treaties, including the creation of a European Treasury, that would go hand by hand with a fiscal federation where budgetary sovereignty of euro area Member States would yield to supranational control.

The Court and the Charter: The impact of the entry into force of the Lisbon Treaty on the ECJs approach to fundamental rights

Abstract: In the two and a half years since the Lisbon Treaty came into force, the Court of Justice has issued a considerable number of decisions applying and interpreting the Charter of Fundamental Rights of the European Union. This article analyses this first wave of case law with the aim of identifying the impact of the Charter in the fundamental rights jurisprudence of the Luxembourg Court. For this purpose, the examination of the cases is organized around three dichotomies: continuity/change, expansion/restraint, and heteronomy/autonomy. The issue of the temporal scope of the application of the Charter is analysed and the most visible innovations are addressed focusing on quantitative and qualitative changes. Second, the implications of Article 51 on the application of the Charter to the States are examined in light of the latest case law, taking into account the important developments of the status of the citizenship of the Union as an expansive device for the protection of individual rights. Finally, the interplay of the Charter with the European Convention of Fundamental Rights and with the constitutional traditions of the Member States is addressed. It is argued that even though there is a marked trend towards the continuity of the fundamental pillars that have so long been at the basis of the EU fundamental rights system, there are substantial innovations and significant developments that reinforce the role of fundamental rights in the legal order of the Union.

The Directive on cross-border healthcare or the art of codifying complex case law

Abstract: The main objective of this article is to study the recent Directive on the application of patients' right in cross-border healthcare by putting it into perspective with the case law that initiated it, together with the trade-offs that had to be taken into account. The drafters of the Directive have dealt with a number of trade-offs among the requirements of the respect for the freedom to receive care (as part of the freedom to provide services), the recognition of rights for the patients, the respect for the historical competence of Member States and the diversity of different healthcare models, and the protection of national financial balances. As a result of theses trade-offs, the Directive goes beyond a mere codification of the Kohll and Geraets-Smits case law. It displays an original combination of the codifying solutions derived from the free provision of services, the facilitation of the exercise of patient mobility by highlighting information in relation to such mobility, and a notable focus on several cooperating tools between States in connection with Article 168 TFEU. The article then raises some questions about the efficiency of this combination and its contribution to the realization of a genuine European Health policy.

The Consumer Rights Directive: How and why a quest for coherence has (largely) failed

Abstract: Directive 2011/83 on consumer rights is a case of misleading advertising. Despite its grand title, it is little more than an up-dating of the Directives on doorstep and distant selling which also re-casts them as measures of maximum, not minimum, harmonization. The real interest lies in why the Directive is such a mouse. And this story tells of political resistance to the Commission's original plan to convert also the far more significant Directives on unfair terms and consumer sales to the maximum model. This vertical shift in regulatory responsibility, driven by an aggressive rhetoric of improving "coherence" in harmonized EU contract law, was firmly rejected, with the result that the finally adopted text is stripped of any depth of ambition. Consequently Directive 2011/83 on consumer rights is not without interest for its choice of detailed regulatory technique, explored in this paper, which focuses on pre-contractual information disclosure, post-agreement rights of withdrawal and limited aspects of contractual performance. But much more so, it reveals the contested heart of the EU's internal market project - coherence achieved by suppression of national regulatory competence (unity) or preservation of regulatory experimentation and local autonomy (diversity). The making of Directive 2011/83 demonstrates political readiness to shield the latter from the Commission's current predilection for the former.

New Categories of Acts after the Lisbon Reform: Dynamics of Parliamentarization in EU Law

Abstract: The Lisbon Treaty has introduced new categories of acts that cut across the familiar typology of instruments provided for in Article 288 TFEU. The three main innovations are "legislative acts", "regulatory acts" and "delegated acts". The article critically analyses these legal concepts in the light of the institutional practice recently developed under the EU Treaties. It includes the first generation of "special" legislative acts adopted by the Council, the landmark rulings of the General Court in Inuit and Microban, the Comitology Regulation of February 2011 and the "Common Understanding on delegated acts" concluded in March 2011. The theme common to the three studies is the progressive parliamentarization of the Union. The Lisbon Treaty's re-arrangements in the system of legal acts are part of the difficult process of reworking the EU's constitutional settlement in view of a powerful European Parliament and the demand to translate this new political reality into the operations of the legal order. For instance, Parliament's persistent objection to the previous regime of supervising the Commission's law-making powers through a system of committees was the driving force behind the new rules of Articles 290 and 291 TFEU. In the case of "regulatory acts", however, the parliamentarization of the Union has provoked a dysfunctional spillover into EU procedural law.

Restrictions of competition by object under Article 101 TFEU

Abstract: This article discusses the concept of restriction of competition by object under Article 101(1) TFEU. It is argued that this concept is justified by a combination of economic consensus; practical experience; and policy judgment about the likelihood of harm to competition. The article discusses the criteria that are used by the EU Courts to identify object restrictions: the content of an agreement, its objectives and its surrounding context. The case law reveals a process of classification in which the EU Courts engage in a judgment as to how much the conduct deviates from the competitive norm. That judgment is frequently non-controversial, although the article discusses several recent cases in which the existence of an object restriction was strongly contested. The article analyses the relationship between object restrictions and respectively the analysis of effects on competition, the de minimis doctrine, and Article 101(3) TFEU. Classification as an object restriction entails a definitive finding as to a restriction of competition which, provided the other elements of Article 101(1) are met, can only escape prohibition by satisfying Article 101(3) TFEU.

A missing piece in the horizontal effect jigsaw: Horizontal direct effect and the free movement of goods

Abstract: Whether and to what extent private actors are directly bound by the provisions on free movement of the EU Treaties, also known as horizontal direct effect of the freedoms, has in the last years been subject to intensive and controversial academic debate. The Court of Justice of the European Union has attributed horizontal direct effect to the free movement of persons, under Articles 45, 49 and 56 TFEU. In sharp contrast, the Court has refused to apply the free movement of goods, Article 34 TFEU, directly to the conduct of private actors, not explaining the reasons for this different approach. This article aims to contribute to understanding the Court's approach and seeks answers to a number of key outstanding questions, namely what role horizontal direct effect does play currently, what role it can and should play in the free movement of goods, and whether a uniform approach to fundamental freedoms is desirable. In doing so it will be tried to assign the free movement of goods an appropriate place in a coherent overall approach to horizontal direct effect in free movement law. This approach, it is argued, should respect the nature of the different free movement provisions, their genesis and the Court's case-law on horizontal direct effect.

Sanctions against Member States under Article 260 TFEU: alive, but not kicking?

Abstract: Since the Treaty of Maastricht introduced the possibility of imposing financial penalties on Member States that failed to comply with judgments of the Court, only fourteen rulings have been handed down by the Court under Article 260 TFEU (ex 228 EC) Not all of these cases resulted in sanctions, and the penalties imposed in some judgments were hardly sufficient to deter similar infringements from recurring However, some improvements can be seen in recent years and the Lisbon Treaty has introduced amendments aimed at bolstering the effectiveness of Article 260 TFEU Taking stock of the case law and the Lisbon amendments, this article explores whether Article 260 TFEU has been effectively employed as a tool for enforcing EU law and to what extent the Treaty amendments are likely to make a difference

A definition that does not work: The impact of the EU Framework Decision on the Fight against Organized Crime

Abstract: This article analyses the impact of the 2008 Framework Decision on the Fight against Organized Crime (part of the Stockholm Programme) on the national legislations of the Member States. While this measure has been criticized by academics and policy makers in the last years, the Council will soon be called to evaluate it on the basis of a report by the Commission. On the basis of a comparative analysis of the relevant provisions in all the Member States, the article demonstrates the Framework Decision did not have any impact on national legislations and has not increased the level of harmonization among the Member States, with consequences on mutual trust and international cooperation in criminal matters. The findings suggest that the EU should reconsider its policy in the field of organized crime legislation.

The Brussels I Regulation : Recent case law of the Court of Justice and the Commission's proposed recast

Abstract: The European law of civil procedure is a steady process of evolution and improvement. Marked by growing cooperation between the civil courts of EU Member States, this area of law is now increasingly dominated by judicial competition and by constitutional influences: on the one hand, the judicial systems of the Member States aspire to attract litigation of high value (often by plaintiff-oriented rules), and on the other hand, the European Court of Justice elaborates its case law on the principles of access to justice, free movement of judgments and fair trial in cross-border litigation. At present, the reform of the Brussels I Regulation (Reg. 44/2001) is on the legislative agenda. The main task of the European law-makers is to update the Regulation in order to maintain the sound administration of justice within the European Judicial Area by limiting competition between national judicial systems which does not necessarily correspond to the interests of private litigants. This article describes the ECJ's case law and takes stock of the present state of affairs for the Brussels I Regulation which is the cornerstone of the European law of civil procedure.

Free movement of goods in a labyrinth: can buy Irish survive the crises?

Abstract: The article explores the legal status of consumer ethnocentrism in the EU and how the three simultaneous crises of the present time (economic, food and climate change) challenge the EU Court's judgment in Buy Irish, which presents the foundation for uprooting negative consumer stereotypes towards products from other Member States and protectionism. Various national campaigns of EU Member States that try to raise consumer ethnocentrism are discussed in light of the established case law of the EU Court, thereby highlighting new circumstances, in which the principle of free movement of goods, particularly of food, is currently situated. In this respect, in a recent Green Paper on promotion of the tastes of Europe (COM (2011) 436) the Commission adopted an apparently new approach towards local and regional food markets, by expressly recognizing the importance of short distribution channels for national traditions, food security (and self-sufficiency) and combating climate change. This "new approach" could have considerable consequences for the legitimacy of national initiatives to promote domestic purchase, thereby compromising a thirty year old judgment - Buy Irish and free movement of goods in general.

Public procurement in the EU : jurisprudence and conceptual directions

Abstract: The present article reviews the emerging conceptual themes from the case law of the European Court of Justice which have triggered the revision of the public procurement Directives, and the alignment of the public procurement acquis with the Europe 2020 Growth Strategy. The Court's jurisprudence has instrumentally influenced the interpretation of public procurement legal concepts such as contracting authorities, the remit of selection and qualification criteria, the parameters for contracting authorities to use environmental and social considerations as award criteria and the principles which underpin the remedies in the award of public contracts. However, the exhaustive harmonization which is inherent in the public procurement directives has caused significant porosity and limitations in the effectiveness of the public procurement acquis. Service concessions, contracts awarded by a contracting authority to another contracting authority on the basis of exclusive rights, public-public partnerships and in-house contractual relations, and contracts which fall below the stipulated value thresholds all reflect upon the forthcoming reforms of the public procurement regime.

National power games and structural failures in the European macroeconomic governance

Abstract: The unfolding of the euro area crisis has revealed fundamental political, economic and legal shortcomings of the macroeconomic governance in the Union. This contribution first demonstrates that the original legal architecture of the EMU has proven conducive to accelerating imbalances produced by the political and economic dynamics of the euro. It then describes how the legal underpinnings of the EMU fell victim of the accelerating crisis and proceeds to discuss the legal countermeasures recently agreed at the EU level, from rescue funds to the six-pack reform and the Treaty on Stability, Coordination and Governance. The article argues that all those measures essentially follow the same intergovernmental governance paradigm which had previously proven entirely inefficient. The euro area falters, because it is - just as is the macroeconomic picture - not a real community, but an aggregate outcome of national policies exposed to substantially destabilizing forces of the monetary union. The text wraps up with a conclusion that only when the governance paradigm is entirely overhauled may the crisis be contained.

Approximating a workable compromise on access to official documents: The 2011 developments in the European courts

Abstract: Despite the fact that the European Union has had specific rules on access to official documents for more than ten years now, their boundaries are still unclear as to why and when the institutions may refuse access. In many respects the lingering doubts have been elicited by the ECJ itself, as the Court often hesitates whether to pursue a restrictive interpretation of the exceptions or whether to protect discretionary powers of the institutions. This contribution describes how the most recent case law of the Luxembourg courts meanders between the two options. Furthermore, it critically analyses both the origins and the results of this process, by concentrating on paradoxes stemming from two radically different judicial approaches applied to the same area of law. Inconsistencies as to review standards in respect of access cases are all the more puzzling considering that decisions of the ECJ ignore - and often contradict - the fundamental freedom of expression, as protected by the European Convention on Human Rights. After analysing the issue, the author proposes modifications to the judicial approach of the ECJ. They are aimed at enhancing congruity with the Strasbourg jurisprudence and at improving the balance between diverging interests involved.

The legal mobility of companies within the European Union through cross-border conversion

Abstract: Over the last decade, the case law of the ECJ on the freedom of establishment for companies has led to a high degree of corporate mobility within the EU. As a result of that case law it is nowadays common sense among academics that companies which have been founded under the law of a Member State may transfer their real seat to another Member State with no change of legal form as far as the Member State of incorporation allows for such an operation. However, it remains to be clarified whether EU law also grants - besides said right of physical establishment - a right of legal establishment by allowing companies to convert into a legal form of another Member State. In the first part of the article, there is an analysis of whether companies may invoke primary law, notably the right of establishment, in order to conduct such an operation. In this context, two forms of cross-border con-version are addressed separately: cross-border-conversion with an attendant transfer of real seat and, far more problematic, isolated cross-border conversion. The second part of the article contains an outlook on a possible secondary measure enabling and regulating the cross-border conversion of EU companies. Although the Commission has stopped working on a 14th directive on the transfer of registered seat, it will be demonstrated that there is actually a strong need for such a measure. Special focus will also be on the question whether the EU has competence to take any steps in that direction, a problem which is often overlooked, particularly with regard to isolated cross-border conversion.

Administrative enforcement, judicial review and fundamental rights in EU competition law: a comparative contextual-functionalist perspective

Abstract: This article examines whether the current institutional framework for the enforcement of EU competition law under Regulation 1/2003 is compatible with the principle of effective judicial protection. This question is answered by developing a test which takes into account, in a structured way, all the contextual factors of the case in the light of the objective pursued by the Legislature in enacting a given enforcement system. Comparative analysis of United States and Canadian constitutional law provides key insights for the development of such a test. This article concludes that the current system under Regulation 1/2003 is unconstitutional insofar as judicial review of Commission decisions by the EU courts is deferential. However, while the current trend is to move to a correctness standard of review across the board, a system in which a competition authority with sufficient safeguards of independence and impartiality of the decision-maker is subject to deferential judicial review in appropriately defined matters is more in line with the institutional balance between the European Commission and the EU courts envisaged by the EU Treaties and Regulation 1/2003, has advantages as a matter of policy over a system in which a court has the duty to review the merits of a first instance administrative decision, and would be compatible with the constitutional standards in force in leading common law systems such as the United States and Canada.

The Semi-Permanent European Council Presidency: Some Reflections on the Law and Early Practice

Abstract: One of the most salient innovations provided for by the Treaty of Lisbon has been the creation of a "semi-permanent" or "stable" Presidency of the European Council This paper offers a legal appraisal of the Union's system of government in the post-Lisbon setting, focused on the role and powers of the refurbished European Council Presidency It combines an unravelling of the black-letter competences with some extensive analysis of their exercise in practice, aiming to scrutinize the internal dynamics of the office, as well as its interaction with other actors and bodies It begins by sketching the general background to the new office, taking a mildly unorthodox view of its origin, coming into being and popular terminology This is followed by an analysis of the modalities for the President's election and dismissal, and an investigation of how the appointment procedure was put into operation for the first time It then proceeds to gauge his competences, sketching their formal purview as well as (the limits to) their actual exercise Finally, it subjects the inter-institutional linkages to review, in an attempt to assess how other actors measure up to the new office In combination, these reflections provide the reader with a picture of the President's position within the wider constitutional framework

Between judicial minimalism and avoidance: the Court of Justice’s sidestepping of fundamental constitutional issues in Römer and Dominguez

Abstract: This article concentrates on the issues left unaddressed by the Court of Justice in the cases of Romer and Dominguez. After clarifying the nature of the "constitutional" issues raised by these two cases and describing how the Court sidestepped them, this article examines how the principle of non-discrimination on grounds of sexual orientation and entitlement to paid annual leave should be categorized within the hierarchy of norms of the EU legal order, before considering their scope of application and justiciable nature in the context of national litigation relating to the alleged failure of a public employer and a private employer to comply with Directive 2000/78 in the case of Romer, and Directive 20003/78 in the case of Dominguez. Three main points are defended: firstly, it is submitted that the Court must systematically refer to the Charter when adjudicating fundamental rights issues and avoid using ambiguous phrasing when referring to fundamental rights or principles that are undoubtedly enshrined in it; Secondly, it is argued that the Court must work on the presumption that in the post-Lisbon EU, the fundamental rights set out in the Charter must also be regarded as general principles of the Union's law; Thirdly, this article defends the view that Article 51(1) of the Charter does not offer clear authority for the proposition that Charter rights lack horizontal direct effect and that in any event, the Court should not rule out the analogous application of the reasoning it developed in Kucukdeveci.