On the Values of the EU and Illiberal Regional Politics

This weekend did not do any good to the image of Spain and of the EU in the world. The pictures of the elderly and other peaceful citizens hurt in Catalonia by the charges of Spanish anti-riot police during the celebration of a so-called referendum were heartbreaking. The fact that the people suffered injuries for trying to exercise their right to vote makes things even worse. The narrative is now on the side of the victims, not of the Spanish State.

I am Spanish and I believe that it was wrong to send in anti-riot police to stop an illegal referendum of independence in Catalonia. It was a mistake, a tactical mistake, that Mariano Rajoy will have to live with in the following months and years. Maybe for the rest of his life if this is the beginning of the end of Catalonia’s relation with Spain.

However, despite the dramatic impact of the pictures and the vociferous claims from part of the media, things should be put into perspective and we should not get too carried away.

First, the intervention of the Spanish police was not the result of a premeditated plan of aggression against peaceful citizens. The Catalan police boycotted the judicial decision issued by a Barcelona judge ordering to stop the referendum. The Catalan police didn’t warn their colleagues from the Guardia Civil and the Policía Nacional, they simply went to the voting booths on the day of the referendum and told people to go home. When people replied and said that they would not move, the Catalan police simply walked away. When the Guardia Civil and the Policía Nacional realized that they were all alone to stop a referendum that was taking place in 2000 different polling stations, it was obvious that the Spanish government was unable to stop it from happening. It was thus a mistake to send the Guardia Civil and the Policía Nacional to stop the referendum only in a few locations. By the time they got there, hundreds of citizens awaited, using children and the elderly to build a human wall around the voting booths. When the officers tried to get through, people blocked their path and eventually all hell broke loose. Thus the pictures we saw on Sunday. If it was obvious that the referendum could not be stopped at that point, why send in the police?

Second, Catalans finally voted, but they did it in a referendum that was so grotesquely irregular and improvised that it can hardly be called a referendum at all. The courts ordered the disconnection of the computer systems that fed the referendum’s data base, and the closing of a few booths (the few that the Spanish police managed to close) led the organizers to impose a universal circumscription for the entirety of the territory of Catalonia, so that anybody could vote anywhere. People voted four or five times, people from Madrid managed to vote, people with no ID managed to put their vote in the ballot box, as well as many other stories that undermine completely the quality and rigor of the results.

Third, the outcome of this so-called referendum was not very good for its promoters. Approximately 42% of Catalans with the right to vote went to the polls. Almost 60% of the voters stayed home. The “yes” vote succeeded with 90% of support, a result that would embarrass any dignified politician for its resemblance to Cuban or Venezuelan one-party election results. Catalonia is deeply divided by the issue of independence, and on October the 1st, the great day of the independence movement, after seeing the pictures of police violence on TV (which brought even more people to the polls, not the contrary), 42% of the voters showed up. It is a very significant part of the Catalan population, but definitely not enough to declare the independence of the country from Spain. The numbers clearly show that there is no appetite for independence among the majority of Catalan society.

Nevertheless, the Catalan Government announced, shortly after the results were made public, that in the following days the Catalan Parliament, in accordance with the Transition Act, will be informed of the official results and it will immediately declare the independence of Catalonia. From that moment on, all the powers of the Spanish State will be transferred by the Catalan authorities, including the judiciary, and Catalonia will start a new future as a new Member State of the European Union and of the international community.

In the meantime, the Catalan Government, with the support of the organizations that support independence, have launched a complaint before the European Commission, accusing the Spanish government of brutal violence and severe attacks against the civil and political rights of Catalans who peacefully wanted to vote on Sunday. The complaint requests the European Commission to start proceedings under Article 7 TEU against the Kingdom of Spain. These proceedings would entail the loss of voting rights of Spain in the Council and, eventually, its invitation to abandon the European Union. Undemocratic States should not be part of the European club and Spain, in its ruthless attack against democracy in Catalonia, would be a good candidate for expulsion.

It is sad to see how such relevant tools of democratic scrutiny, as is the case of Article 7 TEU, can be so blatantly manipulated on the basis of such arguments. Just as a quick reminder, Sunday’s so-called referendum had its legal basis on a Parliamentary Act that was declared unconstitutional by the Constitutional Court. A judge in Barcelona ordered the Catalan Government and all public authorities from enacting the necessary measures to stop the referendum from taking place. These court orders were ignored by the Catalan Government and the Catalan police forces. The Guardia Civil and Policía Nacional were left all alone before two million citizens, and violence erupted when some of those citizens stopped the authorities from entering the voting stations. Police action against those citizens was a tactical mistake, but it was not much different to the type of anti-riot charges launched by the Catalan police forces during the revolts of 2011, when the Catalan Parliament was surrounded by Indignados and Catalan ministers and MPs were brutally attacked when trying to enter the premises. The Catalan police was unmerciful then, to the point that it was banned ever since from using flash-balls after a protester lost an eye.

In the meantime, there is a regional government, the Catalan Government, ignoring the decisions of the courts (but following them depending on how convenient to its interests they may be), financing with public funds a process towards independence with no social support in Catalonia, and preparing a declaration of independence on the grounds of a referendum in which 60% of the population decided not to vote. To request the European Commission to apply Article 7 TEU on Spain would sound like a bad joke, but the extraordinary is the ordinary now in Catalonia, and nothing has stopped its Government from formally complaining about the systemic and severe breaches of human rights in Catalonia.

Unfortunately the Catalan Government is not very interested in the human rights of the 60% of citizens that refused to participate in Sunday’s extravaganza. Those citizens have been left all on their own. It is true that they have the Spanish Government on their side, but after the many tactical mistakes of Rajoy’s Government in the past days, who wants to be protected by him and his Ministers in Catalonia? At this stage, maybe it’s time for the Commission to take a stand and to remind the authorities in Spain (all the authorities) that there are almost five million citizens in Catalonia (of a total population of seven and a half million) left stranded between the illiberal demagoguery of a Catalan Government only loyal to those who embrace the new religion, and the legalistic and cold regard of Madrid.

Thus, the values of the EU are indeed at stake in Catalonia, but not because of the split between Catalonia and the rest of Spain, and not because Spain sent anti-riot police to stop an illegal referendum. Despite the first impressions, the real bond that is now being shattered is the one that holds Catalan society together, a rich and plural society that is now being led by a minority on the road to where the majority does not want to be. And when a region of a Member State breaks into two as a result of the illiberal policies of an invigorated minority, what does that say about the rule of law in Europe?

 

The EU and the Catalan crisis

The events of the past week in Catalunya (and of the weeks that will follow) are very serious and worrying. Catalunya is a region of a Member State of the EU that has begun a unilateral process of independence, disregarding the Constitution, its Statute of Autonomy and the opposition of half of the Catalan population. It’s a remarkable challenge for Spanish democracy. It’s a challenge for the EU as well.

A personal disclaimer to start with: as a Spaniard, I am a supporter of an asymmetric federal Spain that recognizes the national identity of its peoples. I also support the right of a national community to decide by democratic means its own future. But having said all that, the events that have currently unfolded are nothing close to what independence should look like. The events are a serious threat to the rule of law, and it is important to stress it in these very terms.

There is a relevant majority of Catalans who wish to decide in a referendum about the future of Catalunya. It is not about independence, it is about the right to decide through democratic means about a community’s future. This is not possible under the current Constitution of Spain, so a constitutional reform is needed. Therefore, the wish of a majority of Catalan society should be channelled, first, through a constitutional reform, and then by means of a referendum under the new constitutional rules. This is proving to be difficult, not because there is an unwillingness to amend the Constitution to deal with Catalunya, but because Spain has proved unable to substantially amend its Constitution ever since it was enacted. It is not about Catalunya, it is about a Spanish political culture that fears that opening the constitutional debate will awaken the many ghosts of Spain’s bloody past.

Therefore, many Catalans feel trapped in a Constitution that is so difficult to amend, and they have good reasons to be frustrated. But so are the rest of Spaniards who want a new territorial arrangement for Spain, who want to reconsider the role of the monarchy, who want to upgrade some fundamental rights to protect the environment or to ensure social services, etc… The frustration of Catalan society with a Constitution that proves difficult to amend in order to allow a referendum on independence is understandable and legitimate. It is as legitimate as the frustration of many non-Catalans in Spain who still hope (so far, in vain) for an ambitious constitutional reform in many other fronts.

This frustration has now turned into a unilateral route towards independence, irregardless of the Constitution’s clear limits. Last week the Catalan Parliament enacted a law to hold a referendum on independence that will take place on 1 October 2017. The Catalan Government immediately called the referendum official and began its preparations. The day after the calling, the Transition Act, a pseudo-Catalan provisional Constitution that facilitates the transition from the Spanish legality to the new Catalan legality in case of a victory of the vote for independence, was also enacted by the Catalan Parliament.

Needless to say, these legal acts of the Catalan Parliament are plainly in breach of the Spanish Constitution. Thus, the Spanish Government has brought actions before the Constitutional Court so that it reviews their constitutionality through urgent procedures. According to the Constitutional Court’s Act, bringing such actions before the Court automatically suspends them. Therefore, the legal acts currently deploy no effects. But the Catalan Government has announced that the Constitutional Court has no authority anymore in Catalunya and the only legal force that will be recognized by the Catalan executive authorities is the one of the Catalan Parliament. Thus, the referendum’s preparations will carry on. There is an open rebellion from two authorities of the Spanish State (the Catalan Government and the Catalan Parliament) against the Constitutional Court, whose authority in Catalunya is explicitly rejected.

And this is where we stand today.

To be true, the Spanish conservative government of Mariano Rajoy has not handled the situation very wisely in the past. Instead of making an effort to facilitate some type of consultation in Catalunya, the conservative government has played the tough card, with the aim of looking strong towards its non-Catalan voters. The conservative party has a marginal electoral support in Catalunya, so its toughness with the Catalans is electorally profitable in the rest of Spain. Thus, the government’s strategy so far has been to act firm, inflexible and ruthless with those who wish to break up the unity of the Spanish nation.

The situation in Catalunya today is good proof of the Spanish government’s failure. However, we should not overstate this, as some parties are trying to do, in order to avoid confronting the crude reality. It is easy to stand in a neutral stance and blame both the Catalan government and the Spanish government, but the truth today is that the Catalan government and the Catalan Parliament have triggered an unconstitutional process that will amount to a breakup of Spain as a Member State of the EU. This is the crude reality that we have to face today. The blame-game can be left for later.

Is this important at all for the EU? It certainly is and for several good reasons.

First, the unilateral independence triggered in Catalunya has many common features with another worrying event for the EU. In the same vein that the Brexit vote was triggered after a divisive campaign that split British society in two, leaving deep scars that will take decades to heal, the Catalan issue has been construed on the same divisive premise. According to the polls, support for independence is below 50% in Catalan society, but the social division in Catalunya is practically the same as the one we have witnessed in the UK during the Brexit vote. The politics of societal fragmentation, so attached to Brexit and to Donald Trump, are at the very heart of the Catalan issue.

Second, Catalan independence is being bred by an impressive media campaign financed by the Catalan government and civil society. The quality of the information being spread is worrying to say the least, but it has  worked. A few months ago a young Catalan journalist told me that once Catalunya became independent it would automatically become a Member State of the EU, whilst Spain would be kicked out, like Poland or Hungary, because it is not a democratic State. I thought it was a joke. It was not. He believed it for good and crossed his heart. Many in Catalunya believe in all good faith that after 1 October 2017 they will be living in an independent State. This is the result of an efficient media campaign that has been banging about independence for years and years. It has worked. It is about Catalunya today, it could be about Europe tomorrow.

Third, the EU is witnessing an outright attack on the rule of law in several Member States. One of them (Poland) has taken its Constitutional Court by assault. The assault was justified on the grounds of the lack of legitimacy of the Constitutional Court before Polish society (or so the Polish government argued). The events in Catalunya are not very different in that regard. The Catalan Government has already announced that it will not comply with the mandate of an illegitimate court (the Spanish Constitutional Court), because it is a devalued and not respected jurisdiction in Catalunya. A message that sounds terribly familiar to the Polish farce.

If reason and common sense prevails, politics and deliberation will recommence after 1 October 2017 and Catalunya and the rest of Spain will sit around a table and try to find a reasonable arrangement for the future. But in the meantime, Catalan’s frustration with the Spanish Constitution cannot translate into an illiberal act of constitutional transgression. The EU cannot afford another Member State under a threatened rule of law. The EU should speak loud and clear about the importance of upholding the Constitution of a Member State. And this is not an internal issue of Spain. It concerns EU investors with significant capital in Catalunya, as well as EU residents that currently live and work in Catalunya. Above all, it concerns the prestige and reputation of a Union whose territorial integrity, as enunciated in Article 355 TFEU, is being questioned.

Politics and deliberation should take the front stage as soon as possible. But in the meantime, as the full and frontal attack on the Constitution carries on in Catalunya, it is important that the focus is placed where it deserves to be. Illiberal politics are spreading fast around the globe and Europe. We should be well advised not to look the other way and start treating them as what they really are.

 

 

 

 

The EU’s Constitutional Interpretation of Article 50 TEU: Be Careful What You Wish For

The Brexit negotiations are well underway and things are turning sour. Negotiators trade reciprocal accusations, UK ministers are already accusing the EU of blackmail, nobody agrees on the money, nobody agrees on the role of the Court of Justice… This might be typical of the theatrics of every complex and publicized negotiation, but in the time-frame of only two years (almost one and a half by now) it appears as if the UK is heading towards an ugly and uncontrolled hard Brexit.

One could argue that this is all the UK’s own making. However, after spending two days in a conference listening to the opinion of several EU officials on the subject, it is obvious that this is also the desired and intended result the EU is looking for. The EU is starting to twist the UK’s arm and it is proving to be surprisingly easy and apparently risk-free. The more the Commission twists, the more the Brits seem to cry in agony and frustration, as they slowly but relentlessly realize what a miserable and poor card they have been left with. The EU is even beginning to act bullyish and with disdain. The EU is slowly realising that Brexit might be painless for Europe after all, and that its Institutions and officials might get to enjoy displaying public and unembarrassed humiliations of a respected nation now gone rogue.

In the course of the past days I have heard from EU officials the most robust of constitutional interpretations of Article 50 TEU. In their opinion, Article 50 TEU is not an unclear provision, but a crystal-clear rule with nothing much to interpret: in two years you either pay or you go, and if you go you are gone for good. Any transitory regime will not be a piece of cake, quite the contrary: accounts must be paid and, just to make things even clearer, the regime should have a suspensive clause in case of breach. The more the UK government and UK business cry for reason and flexibility, the more bullyish the EU approach becomes, and it is legally bullyish, because the reason for the EU’s rigid stance is due to the law. It is the law that demands that accounts must be paid first. It is the law that requires a step-by-step process. And it is the law that imposes the compulsory jurisdiction of the Court of justice.

It is the law, EU constitutional law. And Article 50 TEU is part of it.

I will admit that I agree with the EU’s official stance. I think it is legally sound and it is in line with the wording of Article 50 TEU. The UK does have indeed international obligations vis-à-vis the EU resulting from its withdrawal from the Treaties. I also agree that a transitional agreement must be minimally adapted to the circumstances of the transition and, if necessary, include suspensive clauses to ensure enforcement. And I certainly agree that the Court of Justice cannot be side-lined in the interpretation of EU law. The EU has the legal argument right. What it might be mismanaging badly is the timing and the politics.

A robust constitutional interpretation of Article 50 TEU poses a problem in the context of Brexit, and it has to do with the history of the provision. As Lord Kerr reminded Politico’s readers in a very interesting piece, Article 50 TEU was mostly a provision to counterbalance Article 7 TEU and to thus avoid enacting mechanisms to suspend or terminate membership of a rogue Member State. If Article 7 TEU was ever triggered, the rogue State would have to either return to sanity or voluntarily walk out the door. A Member State could not stay indefinitely under suspension resulting from Article 7 TEU proceedings. Thus, Article 50 TEU was the polite invitation to please leave (voluntarily, of course) the European club.

Fast-forward now to 2017 and it is quite surprising to see how events have unfolded. A Member State that is far from being a rogue State, the United Kingdom of Great Britain and Northern Ireland, is now on its way out of the EU through Article 50 TEU proceedings. And two rogue Member States (or governments, to put it more precisely), Poland and Hungary, are displaying their immunity vis-à-vis Article 7 TEU as they carry on with a domestic frontal attack against the rule of law and the EU’s most basic values. The two rogue Member States have figured out that they can block Article 7 TEU because they can reciprocally vote against any measures being taken in the European Council against them. A legal gimmick allows them to carry on with membership at the same time that they implement their illiberal agendas with astonishing immunity.

By promoting a robust constitutional interpretation of Article 50 TEU against the UK, common sense would advise us to apply the same approach to Article 7 TEU vis-à-vis the rogue States that are now undermining the EU’s values. In the same way that the EU stands firm in refusing to negotiate a trade agreement in the withdrawal agreement because it is contrary to the Treaty, the same firmness and command should apply to Articles 2 and 7 TEU. The consequence of upholding a constitutionally robust interpretation of Article 50 TEU, is that its twin provision, Article 7 TEU should be interpreted in the same way too.

However, we are witnessing quite the opposite. So far, Member States are mute about their Polish and Hungarian partners, and the firmness they display when commenting on Article 50 TEU suddenly disappears when the attention is brought to Article 7 TEU. If this approach continues in the following months, the EU could find itself pushing out the door one of the most venerable and respected democracies in the world, whilst keeping two rogue States that have decided to obliterate the rule of law in their domestic constitutional orders. The EU would be putting itself in the preposterous position of fighting away a country that should be kept close to Europe, but refusing to fight precisely the kind mischief that Articles 7 and 50 TEU were designed to prevent.

I very much agree with the EU’s legal understanding of Article 50 TEU, but if the approach towards Poland and Hungary remains unchanged I’m afraid that it could all end up backfiring very badly. Not because Brexit might turn up bad for the EU in the short-term (it will not), but because the departure of the UK and the confirmation that illiberal politics are free for Member States to play with, might end up being lethal in the long-term for European integration. And that would seriously undermine everything the EU stands for. And then Brexit, in the long-term, like a hidden old bomb that appears in excavations many years after it was dropped, could explode with fierce voracity in the very face of the EU.

The Polish Dilemma

The unfolding of events in Poland is becoming ever more worrying. For any lawyer in the west (and many parts of the rest of the world too), the idea of a national judiciary subject to the executive’s wishes, where Supreme Court judges can be dismissed at the pleasure of the Minister of Justice, is contrary to basic standards of the rule of law. This is particularly true when the government’s intrusions are targeted at the Supreme Court, the very heart and soul of a country’s judiciary, where decisions on principle in every area of the law, from administrative to civil law, from labour to criminal law, are rendered for the benefit of the law’s integrity and coherence. To attack the Supreme Court is to attack the judiciary at its very essence.

Furthermore, when these actions are the follow-up to a prior attack on the Constitutional Court (successful so far), then the events in Poland are probably the most worrying, from the point of view of the values of democracy and the rule of law, which the EU has faced in its recent history.

We will know in a few weeks’ time if the Polish government’s attempts will succeed, but it looks as if they will. The chosen dates for this coup, in the midst of the summer and with thousands of citizens away on holiday, seems to confirm the government’s willingness to pull it off.

So far, all we hear from the EU is more and more about Article 7 TEU and the use of structural funds and other forms of EU aid to counter Poland’s attempts to curtail the rule of law. However, Article 7 TEU has way too many problems to be ever used, and tinkering with EU funds sounds too much like blackmail, enough to boomerang back on the Commission or the Council. Furthermore, the fact that the government’s attack is clearly targeted on one of the powers of the State, the judiciary, makes it particularly tricky for the EU to deal with. After all, in the same vein that the government should not meddle with the judiciary’s independence, why should the EU step in and defend a national judiciary, when it hardly has competences on the organisation of national judiciaries? When the Polish government argues that the EU has no competence to stick its nose into the Polish judiciary’s business, it has a point, at least from a jurisdictional perspective.

It is therefore time for the European judiciary to assume as well that it has a duty to react and to protect the rule of law. If a national judiciary comes under attack, the European judiciary must respond consequently. If the Commission and the Council do so as well, it’s all very well. But in the meantime, the European judiciary has a particularly strong mandate to uphold the rule of law and protect itself from the intrusions of the government of a Member State in the very heart and soul of a national judiciary.

First, it must be assumed that from the moment that the Polish Supreme Court becomes remodelled under the new laws, after the Minister of Justice’s instructions, the Polish judiciary, top-down, has lost its independence and its decisions cannot qualify as decisions issued by a court of law. Depriving the very apex of the judiciary, the Supreme Court, from its independence causes a downstream effect that deprives all inferior jurisdictions, subject as they are to the Supreme Court’s case-law, of their independence as well. This must be assumed by the EU and all Member States, but particularly by the Union’s courts and the Member State’s courts.

Second, the loss of the judiciary’s independence, as an essential requirement attached to the value of the rule of law, enshrined in Article 2 TEU, deprives national courts of their standing as courts of EU law under Article 19 TEU. Poland will have courts, but it will not have courts of law under the standards of EU law. Therefore, the judgments rendered by its courts will be effective when solving claims raised by parties within the territory of Poland, but they will not be effective as judgments issued by national courts of law acting as courts of EU law.

As a result, Polish courts should not be deemed to comply with the requirements of Article 267 TFEU, inasmuch they will lack one of the essential requirements of any jurisdiction to make a preliminary reference: independence. The Court of Justice has been eager in the past to discard certain bodies as “jurisdictions” pursuant to Article 267 TFEU, on the grounds that they lacked independence. If a Member State’s judiciary loses its independence as a whole, it is reasonable to assume that the courts of that Member State have lost the ability to communicate with the Court of Justice.

This might sound extremely harsh and could eventually deprive rightful and very independent Polish judges with their last hope to retain their dignity as judges: the cooperation of EU courts by way of the preliminary reference. However, it is precisely for the sake of the dignity of the EU’s judiciary that it must defend itself from serious and intolerable power grabs from extremist movements in power. Otherwise, when the time comes to make difficult decisions… what authority will the Court of Justice have left to prove?

In Spain in the 1960’s there was an efficient administrative judiciary in charge of the judicial review of the regime’s administrative action. To the surprise of many, Spain was a pseudo-rule of law, despite being a dictatorship. Individuals and companies could expect to have a fair and independent judge if they ever dared to sue the government of Franco. Of course, it was all a farce, because it only worked with small cases. The judiciary was at the government’s will when dealing with the big stuff. For some, Spain was a “State under a formal rule of law”, with procedural guarantees and legal certainty for individuals and companies. When Spaniards look back and see how many learned constitutional lawyers praised Franco’s wits for managing to provide a “formal rule of law”, they feel a sense of shame and outrage towards those who contributed to justyify and thus preserve a system that was nothing else than a brutal military dictatorship.

On the day the Polish judiciary’s reform Act enters into force, if we simply look the other way and assume that the Polish judiciary is still the same thing it was the day before, we will all become collaborators. And a few decades into the future, when our children look back and read about the Polish power-grab that annihilated the independence of its judiciary, they will be ashamed and outraged to read about how the EU tried to play along, how the rest of national courts carried on recognizing Polish judgments under EU rules, and how the Court of Justice kept replying to the references coming from an organization that had been deprived of the dignity of a judiciary. The complacent lawyers of today will say: “oh well, the Polish judiciary is under a formal rule of law and its judges apply rules of law, so what can we do?” But our children will know, just as Spanish lawyers know today about their elders, that shameless collaboration has many dark faces, and that the moral price attached is way higher than the profits of complacency.

 

Self-amending Treaty rules and the birth of constitutional robotics

Among the many fascinating questions that Brexit has brought to the legal arena, there is one that has not raised much attention: the need to repeal the references to the United Kingdom in primary law, mostly the Treaty on European Union and the Treaty on the Functioning of the European Union. Once the United Kingdom is gone, its presence in the Treaties is a piece of legal archaeology that must be removed. There are no possible compromises here.

This is a purely technical adjustment that should raise no concerns. But unfortunately it is not as simple as it may seem.

The obvious choice would be to introduce minor adjustments to the Treaties in the withdrawal agreement. The treaty establishing the conditions of Brexit should be the instrument that cleans the Treaties of all references to the United Kingdom. However, this is not possible due to the withdrawal agreement’s bilateral nature and parties: the EU is party to the withdrawal treaty, not the Member States. The EU cannot amend multilateral treaties entered into by Member States (i.e., the TEU and the TFEU) and, above all, it cannot amend its constitutive Treaties, only its Member States can.

Another option is to enact an ad hoc multilateral treaty, for example the treaty in which a transitory agreement UK/EU would be envisaged to ensure the transit from Brexit towards a future trade agreement. This option is not workable for several reasons: the United Kingdom cannot be a party to this agreement, because it cannot participate in an agreement amending Treaties to which it is not a party. But above all, an international treaty amending the TEU and the TFEU will find the insurmountable obstacle of the Defrenne II case-law, which is now enshrined in the Treaties themselves: all amendments to the Treaties must be undergone through the Treaty amendment rules to this effect. In other words, all Treaty change must pass through the procedures of Article 48 TEU. The only exceptions, and subject to very strict conditions under Article 49 TEU, are Treaty “adjustments” in accession treaties. But that’s all. And this is not an accession of a new Member State, but exactly the opposite.

It therefore appears that the only option left for a rather simple reform is a Treaty amendment by way of Article 48 TEU. It is tempting to assume that such a modest reform would be an excellent candidate for a simplified revision procedure. But alas, EU was never an easy travelling partner and the simplified revision procedure is available only for amendments to Part Three of the TFEU. The references to the United Kingdom are everywhere throughout the Treaties, so the simplified revision procedure will not do (in fact, the references are everywhere except in Part Three of the TFEU). We are thus in the hands of the ordinary revision procedure, which requires ratification by all Member States.

Ratification in all Member States might seem like the least terrible option, but it raises a question of timing. If an agreement in reached between the United Kingdom and the EU on the conditions of withdrawal, the ratification process will require the consent of the British Parliament and the EU (Council and European Parliament). This will be a rather straightforward process (fingers crossed), but definitely a much quicker one that going through twenty-seven national ratifications. If the withdrawal agreement needs to be synchronized with the ordinary revision for the amendment of the Treaties, the former will be de facto conditioned to national ratification processes in all Member States. This might take a long time. Or it might risk Brexit becoming hostage of a national (or regional) Parliament. Nobody will really care if the revision only concerns very straightforward amendments to a few references to the United Kingdom. National politics are politics, and any chance is a good chance for small parties to make noise and threat with blowing up the entire Brexit process.

And thus we arrive at the brave new world of robotics and self-amending Treaty rules.

My suggestion is that scrubbing all references to the United Kingdom needs no revision procedure at all. It is an automated effect of the triggering of Article 50 TEU. Article 50 TEU provides a procedure for withdrawal, but it also contains a Treaty-amending rule for the indispensible “adjustments” resulting from the withdrawal of a Member State. This is an automated amendment that does not allow for any further changes in the Treaties. All it can do is “clean” the Treaties and erase all traces of existence of the withdrawing State. It is automatic, the mere effect of legal robotics.

The self-amending virtues of Article 50 TEU are not only practical, they are also crucial to preserve the integrity of EU Law, particularly after in the case of a hard Brexit with no withdrawal agreement. The options I mentioned earlier rely on the existence of an agreement between the United Kingdom and the EU. But if there is no agreement, the withdrawal will take place anyway and the Treaties will need an immediate filtering of its rules. The only way to ensure an efficient withdrawal, including the removal of references to the withdrawing State from the Treaties, is by providing an automated amendment mechanism.

This feature of Article 50 TEU is also coherent with the automated guillotine approach to the timing of the withdrawal process. A Treaty rule establishing that “the Treaties shall cease to apply” to the withdrawing State after two years, is anticipating an amendment to the Treaties. The fact that Article 50 TEU makes an explicit reference to “the Treaties” reinforces the idea that the said Treaties undergo a transformation. Therefore, the guillotine rule is not only a tool for political pressure in negotiations, it is also a rule governing the legal effects of a clear-cut withdrawal. Such withdrawal entails a revision of the Treaties, an automated revision, just as automated as the running two-year clock.

Such automated revision is necessary in order to ensure the proper functioning of the Union, particularly when the withdrawing Member State has been so talented in scratching special arrangements that are now scattered throughout the Treaties. In the case of the withdrawal of a country like the United Kingdom, the amendment of the Treaties is not just a surgical act of removal of a specific reference, but a broad revision of the practical totality of Treaty chapters. The Preambles of the TEU and TFEU contain references to the United Kingdom. Part Four of the TFEU, on overseas countries and territories, makes very relevant references to the non-European countries and territories with special relations with the United Kingdom. Article 355 TFEU, on the territorial scope of the Treaties, refers several times to the United Kingdom. The Protocols specify aspects as varied as the United Kingdom’s capital subscriptions in the European Investment Bank (Article 4, Protocol 5), or its arrangements under the Schengen acquis (Protocol 19). Some Protocols are specifically concerned with the enactment of rules for the United Kingdom only (Protocol 15 on the United Kingdom’s opt-out from the euro) or for the United Kingdom bilaterally with another Member State (Protocol 20 on the application of Article 20 TFEU to the United Kingdom and Ireland). On the day after Brexit, these provisions must be gone, or otherwise a lot of uncertainty will be created.

It could be argued that the automated revision resulting from Article 50 TEU would only occur in case of a hard Brexit. If there is an agreement, there will also be a broad Treaty amendment that would reach beyond the mere cleansing of references to the United Kingdom. For example, an agreement on the UK/Irish border will probably require specific recognition in the Treaties, providing for special rules on border control that might derogate from Treaty rules. This agreement could provisionally enter into force before ratification, and any revision of references to the United Kingdom could be included there. However, this option raises concerns once again. It is not clear if Article 48 TEU and, in particular, the ordinary revision procedure allows for temporary entries into force of Treaty amendments. And above all, it is dangerous to mix specific arrangements for the purpose of bilateral relations with a broad cleansing of the TEU and the TFEU. The chances of collision with the orthodoxy on Treaty amendments and with the preservation of the autonomy of EU Law are a risk too serious to be taken.

I therefore suggest that the way forward, whether there is a withdrawal agreement or not, is to assume that Article 50 TEU provides an automated removal of all references to the United Kingdom in the Treaties, including its Protocols and Declarations. The day after Brexit, the Publications Office should provide a new consolidated version of the Treaties in which all references to the United Kingdom disappear. If this causes any disarray, it will have to be handled either through secondary law in a preventive way, or afterwards through an ordinary revision procedure with ratification in all Member States. But that is the price to pay for a clean rupture in Law, and not a messy faux Brexit, real in practice, false in Law.

After all these years, we were unaware that there was an additional Treaty amendment procedure in the Treaties. In fact, there were more procedures than those envisaged in Article 48 TEU, because Article 49 TEU allows for specific “adjustments” in accession Treaties. What is new is the ability of Article 50 TEU to act as a Treaty amendment rule as well, in a fashion that is different to other procedures, but coherent with the dynamics of the time-bomb philosophy of the withdrawal process. After all, an automated withdrawal within a fixed time-period also needs automated Treaty amendments.

Welcome everybody to the age of constitutional robotics.

The Singapore Silver Bullet

According to the Daily Telegraph, “Brexit has received a significant boost” after a “landmark ruling” of the European Court of Justice on the EU-Singapore trade agreement. The Times of London stated yesterday that the Court’s ruling “smooths the way for a Brexit trade deal without veto”. The Guardian declared that the Luxembourg judgment “raised a ray of hope for British trade negotiators”.

Such good news for Brexit and its ardent brexiteers!

However, I must admit that after reading the Court’s Opinion my feeling is exactly the opposite. The Court has made a clever juggling exercise with Christmas presents for everybody. But in fact, the Court has saved the best Christmas present for itself. And there are hardly any gifts for Britain.

The Singapore Opinion is a marvelous gift for the EU because it paves the way for smooth ratification processes for the latest generation of trade agreements, so-called megatrade agreements. This makes life certainly much easier for the Commission and, in the end, for the EU altogether. The growing tendency to make use of mixed agreements with a tedious and politicized national ratification process (in which anything, except the genuine trade issues, was used to torpedo very reasonable agreements) has been put partly to a halt, and for all the good reasons.

The Opinion is also good news for Member States, for it nevertheless admits that portfolio investment is still a matter of Member State competence, shared with the EU. Member States have not been deprived of all role and purpose in trade policy, particularly in a sensitive area such as portfolio investment that can eventually involve foreign investment in strategic resources of a Member State.

But above all, the Opinion is wonderful news for the Court of Justice itself. The Court has never been a big fan of other international courts meddling in the interpretation of EU Law. It has not been a supporter of arbitration either. It is therefore no surprise that investment arbitration has been received with some hostility from EU Law, first by the European Commission, and now, since yesterday, by the Court. In a very clever way, the Singapore Opinion paves the way to the extinction of EU investment arbitration, at least in megatrade agreements to which the EU is a party. The court does not state that investment arbitration is contrary to EU Law, it simply says that this is a shared competence and therefore needs Member State ratification. In a masterclass of judicial diplomacy, the Court has made it very easy for the parties of a megatrade agreement to renounce to investment arbitration as a means of dispute settlement. If the price of introducing investment arbitration is to risk the derailment of the megatrade treaty in a national or regional parliament after so many years of touchy negotiations, it is reasonable to assume that the EU’s counterparty will live happily without these contentious tribunals. Therefore, the Court is actively contributing in putting to rest arbitration tribunals in EU megatrade agreements.

And who is the big loser of the Singapore Opinion? Besides the arbitration community, the other victim of the Court’s ruling is the UK and its blue, red and white Brexit. In paragraph 300, the Court makes an ominous assertion that should be taken closely into account by the UK negotiators. The Court states that a dispute settlement regime between States is part of the ordinary institutional framework of the trade agreement and it is thus an exclusive competence of the EU. However, the Court adds,

“the present procedure does not relate to the question whether the provisions of the envisaged agreement are compatible with EU Law”.

And the Court carries on reminding the reader that the Opinion only concerns the issue of EU competence, but not whether the dispute settlement agreement in the Singapore agreement “fulfills the criteria set out by […] other opinions, in particular the criterion relating to the autonomy of EU Law”.

It was inevitable. Sooner or later it had to come up.

Of course, it’s the autonomy at last!

For those who have been following the Brexit saga, paragraph 301 of the Singapore agreement will probably ring a bell. It certainly did it for me. The European Council Guidelines on the Brexit negotiation are quite clear in this regard:

“17. The withdrawal agreement should include appropriate dispute settlement and enforcement mechanisms regarding the application and interpretation of the withdrawal agreement, as well as duly circumscribed institutional arrangements allowing for the adoption of measures necessary to deal with situations not foreseen in the withdrawal agreement. This should be done bearing in mind the Union’s interest to effectively protect its autonomy and its legal order, including the role of the Court of Justice of the European Union.”

And later on, when referring to the future trade agreement, the Guidelines declare:

“23. The future partnership must include appropriate enforcement and dispute settlement mechanisms that do not affect the Union’s autonomy, in particular its decision-making procedures.”

In other words, the UK should start assuming that it will have to accept the jurisdiction of the Court of Justice one way or the other, or it will otherwise undermine the autonomy of the Union legal order. The Guidelines were an apéritif in this regard. The Singapore Opinion, in paragraph 301, is the confirmation that the European Council was not bluffing on this. The Court is not bluffing either.

The withdrawal agreement will need to be subject to dispute settlement mechanisms that do not interfere with the autonomy of Union law. The future trade agreement will be subject to similar mechanisms too. But if the reader takes a look back and follows the Court’s track record when scrutinizing the compatibility of international dispute settlement systems subject to EU Law, he or she will quickly notice that the Court has been very careful to protect its own jurisdiction from any suspicious intrusion.

In fact, the withdrawal agreement will be an act of primary law (materially primary law, as the ECHR accession treaty or the Electoral Act) and it is to be expected, for the sake of autonomy, that the Court will preclude any other jurisdiction from interpreting key rules of the Union legal order. The future trade agreement with the UK will be even more complex than the current megatrade agreements, and the Court is not going to let an arbitration tribunal or anything of the kind come close to it. Yesterday’s Opinion is the confirmation of how ferocious the Court will be if the EU negotiators give away, even in the slightest portion, the jurisdiction of the Luxembourg Court.

So indeed, the Singapore Opinion is good news. Good news for trade. Good news for the EU, good news for Member States and, above all, wonderful news for the Court of Justice, once again in full control of process, in perfect timing and immaculate tone.

And while the brexiteers cheered the Court for paving the way for a wonderful Brexit, nobody seemed to notice paragraph 301 of the Opinion, a camouflaged silver bullet, quietly waiting for it to be used in a near future, to blow up the entire Brexit process in the name of the autonomy of EU Law.

The Great Repeal Bill and the Charter of Fundamental Rights – not a promising start

One of the messages that the UK government has repeated since the decision of the British people to leave the EU, is that the withdrawal will not entail a loss of any right, particularly of social rights. This was (and is) an important part of the message, considering the high turnout of labour voters that voted for Brexit.

Yesterday the Government published an insightful White Paper on the upcoming Great Repeal Bill, which will incorporate most of EU Law into UK Law once Brexit takes place, in order to provide stability and legal certainty to citizens and undertakings currently living and working in the UK. In Chapter 2, the White Paper makes a reference to the hundreds of thousands of EU acts that will be incorporated and stresses the importance of providing stability in the legal framework once Brexit happens. EU Law will carry on being applicable, but only as UK Law, and reforms will be introduced into this “repatriated EU Law” from then onwards by both Parliament and Government.

Therefore, on the day Brexit happens EU Law will be incorporated into the UK legal system, including the entirety of the Court of Justice’s case-law. This is a huge digestion of rules and judicial rulings, unprecedented in the way and speed in which it will take place.

However, there is a piece of EU Law that will not be incorporated into UK Law. This is no ordinary or irrelevant piece. It is the Charter of Fundamental Rights of the European Union. It is another revealing sign of the impact that Brexit will have in the UK and, above all, for UK citizens and their rights.

The Government’s White Paper justifies the decision to exclude the Charter from the Great Repeal Bill with an argument so simple that it is, in fact, incorrect. I very much doubt that the UK Government incurred in a clerical error when drafting the text, so I assume that the justification is simply the best effort they could do. In the Government’s own words, “the Charter was not designed to create any new rights or alter the circumstances in which individuals could rely on fundamental rights to challenge the actions of the EU Institutions or member states in relation to EU Law.” The document carries on and claims that “the Charter was intended to make the rights that already existed in EU law more visible by bringing them together in a single document”.

I might be missing something, but the Charter, besides codifying some fundamental rights already recognized in the case-law of the Court of Justice, introduced many new rights and principles of enormous relevance and inexistent under EU Law until the entry into force of the Charter in 2009.

Thanks to the Charter, EU Law recognizes the prohibition of human cloning as part of the fundamental right to physical integrity (article 2.2.d). There is nothing in EU secondary law on schools, but the Charter enshrines the freedom to found educational establishments (article 14.3). And there is a very important right conferred on nationals of non-EU Member States that are authorized to work in the EU: the right to working conditions equivalent to those of citizens of the Union (article 15.3).

In an aging society in which we will live longer than any other previous generation, the Charter recognizes the rights of the elderly “to lead a life of dignity and independence and to participate in social and cultural life”. Many of the elderly in Britain voted for Brexit. This fundamental right has been deprived from them.

The effect is even more brutal when it comes to vulnerable groups, as is the case of persons with disabilities. Article 26 of the Charter recognizes the right of persons with disabilities “to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community”. This right under the Charter will be gone after Brexit.

The Government’s document is even more striking when it adds that “the removal of the Charter from UK law will not affect the substantive rights that individuals already benefit from in the UK”. This assertion is made on the assumption that EU secondary law suffices to keep all the rights untouched. But this claim is wrong, and it can be easily proved with an example.

In Kušionová, the Court of Justice was faced with an unfair term in a consumer credit contract, in which the guaranteed asset was the consumer’s home. When she faced the risk of an eviction and loss of her home, Mrs. Kušionová argued that the fundamental right to accommodation, as recognized in article 7 of the Charter, protected the consumer from procedures of enforcement that would entail her eviction, the auction of the property and, as a result, the loss of her home. The Court of Justice agreed and ruled that the enforcement could not carry on as a result of the Directive 93/13 (which says nothing about extrajudicial enforcements), as interpreted in light of the Charter. By relying on the Charter, the Court of Justice interpreted Directive 93/13 in a way that created a new provision, a rule of judicial creation, coherent with the Directive 93/13, but not included by the legislature in the articles of the legal text.

With the Great Repeal Bill, Mrs. Kušionová’s case would still apply in the UK because Directive 93/13 and the UK implementing legislation will be interpreted in light of the Court of Justice’s pre-Brexit case-law. And the judgment is Kušionová was rendered in 2014, so it will remain as part of UK law.

However, this will not be the case when it comes to interpret the 2014 Mortgage Credit Directive, which has not been interpreted yet by the Court of Justice (and will not be interpreted before Brexit). This Directive will be incorporated into UK Law as a result of the Great Repeal Bill, but it will be introduced with no case-law of the Court of Justice attached to it. Therefore, the right to protect the consumer’s home will be ensured when the substantial applicable rules are those under Directive 93/13 (Kušionová), but the consumer will be left all alone, in the hands of internal UK Law, when the same risk appears but the consumer can only rely on the Mortgage Credit Directive.

It is true that the Charter can only apply in Member States when there is another rule of EU Law at stake. But all EU lawyers know that the Charter is not only an interpretative tool for the application of EU Laws, but also a source of creation of new jurisprudential rules, closely attached to the EU rules governing the case. Kušionová is a good example of how the system works. It is also a good example of how unfair and regressive the Great Repeal Bill will be for millions of right-holders in the UK, particularly for the most vulnerable communities and individuals.

As every day goes by, we understand better what “take back control” means. In the area of fundamental rights, it means a lot. And the prospects are not very good for right-holders, despite the promises of the happy Brexiteers to keep rights untouched. 

An Instruction Manual to Stop a Judicial Rebellion (before it is too late, of course)

2016 was not a good year for the EU. In fact, it was not a good year for the world in general, but the EU has taken quite a good beating compared to other regions. Brexit was terrible news for European integration (the ever closer Union backtracks for the first time). The arrival of Donald J. Trump to the US presidency, hailed by cheerleaders of the likes of Le Pen, Farage, Wilders and Petry, doesn’t spell any good for the Union. Growth continued to be stagnant and unemployment still soared in many southern Member States. Italy, where a growing eurosceptic ambiance has taken hold of the political discourse, is a source of growing concern. Poland and Hungary carry on with their illiberal anti-EU agendas, to the dismay but cowardly attitudes of other Member States.

In the meantime, one of the EU’s proudest achievements, its judiciary, has shown the first signs of worrying instability.

On 21 June 2016 the German Constitutional Court green-lighted the European Central Bank’s OMT programme, after having made a reference of validity to the Court of Justice. Many reacted with relief, but the reasoning of the German court’s judgment was hardly a consolation for the Luxembourg court. Throughout its reasoning, the German court shows its deep discontent with Luxembourg’s decision, its arguments, its approach towards judicial review, its lack of respect towards the question that was actually put by the German court, and several other grievances. If anybody interpreted the OMT judgment of the German Constitutional Court as a positive sign for the future, I would recommend them to read the judgment twice.

On 6 December 2016 the Danish Supreme Court ruled that non-written general principles of EU Law are not binding in the Danish legal order. The Danish court interpreted strictly the Danish Accession Act and came to the conclusion that the Court of Justice’s activist stance towards general principles has no legal base in the Treaties. Despite the fact that the Court of Justice had recently ruled on the case at hand, giving clear instructions to all Danish courts, the Supreme Court decided that such guidance was not binding. Mangold and Kükükdeveci are no longer the law of the land in Denmark.

In the meantime, the Italian Constitutional Court was struggling with a judgment of the Court of Justice (Taricco), to such a point that on 26 January 2017 it made a reference openly inviting the Court of Justice to overrule its past decision. The Italian court had a good point: The judgment in Taricco imposes on the Italian legal system the setting-aside of a rule on time-limitations that would allow the reopening of criminal proceedings that had been, until Taricco, time-barred. According to the Italian court, this is not a mere procedural issue, it is quite substantive and relevant for the accused. From the perspective of human rights protection, the Italian Constitutional Court seems to be quite horrified, but at least it had the deference of making a reference.

One could argue that these are just sporadic and individual decisions of activist and nationalist courts, and that the Court of Justice is right in standing firm and putting things in their proper place. Unfortunately, it is rather more complex and worrying than all that.

All three decisions have one point in common: all three of them are strongly reacting to three different judgments of the Court of Justice. They are all unsatisfied national supreme and constitucional courts with the Court of Justice’s decisions. The German Constitutional Court is unimpressed with the quality of the reasoning of the Court of Justice in the OMT ruling. The Danish Supreme Court is upset with the activism of the Court of Justice in Danks Industri and others. The Italian Constitutional Court is horrified with the approach towards fundamental rights of the Court of Justice in Taricco. I would not say that these are nationalist overreactions. These are worrying (and I would add justified) signs of something going wrong.

Unfortunately, I must admit that all three courts have a point.

The OMT judgment of the Court of Justice arrives (in my opinion) at the right outcome, but its reasoning is nothing close to rocket-science. Considering the challenge raised by the German Constitutional Court, particularly on the ultra vires test, the reply of the Court of Justice sounds bureaucratic and dull. The passages on inadmissibility, where the Court of Justice deals with the German Constitutional Court’s threat of setting aside a judgment coming from Luxembourg, are blunt and uncompromising, but lacking hardly any reasoning. The factual analysis of the case is practically non-existent, despite the complexity of the file and the underlying problem. I insist that the Court of Justice reached the right solution, but I also confess that the German Constitutional Court’s critique, particularly on the point of the intensity of judicial review, is not completely unfounded.

The Danish Supreme Court’s reaction to the Danske Industri case is also unsurprising. The Court of Justice has stuck to its Mangold case-law quite firmly, but during this time it has hardly refined it or struggled to explain why it works and when does it not. The reasoning of Association de Médiation Sociale, where the Grand Chamber had the chance of explaining the limits of the Mangold case-law, was unanimously perceived as a disappointment. No wonder the Danish Supreme Court finds itself unimpressed when reading Danske Industri. In the past ten years, the Court has been applying a sort of “Brexit means Brexit” approach towards Mangold: “Mangold means Mangold”, but, alas, national courts need something more than that before making a leap of faith.

But the most worrying reaction is the Italian one. Taricco is a powerful decision of the Court of Justice rendered by the Grand Chamber, but its reasoning is based on a fragile premise: that time-limitations in criminal liability are a question of procedure and not of substance. The Court of Justice argued that extending a time-limitation (because it is too short) does not necessarily prejudge the criminal liability of the accused, which is indeed true. However, the impact that this decision might have in the domestic criminal system is enormous, and the reopening of criminal procedures, once time-barred, raises serious doubts in the light of fundamental rights. The financial interests of the Union are relevant, to be sure, but the legal certainty of citizens, particularly in criminal proceedings, is no minor thing. The Italian Constitutional Court is right in giving the Court of Justice a second chance, but the fact that it is making the reference is good proof that there is something wrong with the judgment in Taricco.

The Court of Justice has never been so questioned by those who are supposed to empower it and justify its role: national supreme and constitutional courts. 2016 has proved that the relationship between Luxembourg and its national counterparts is not going through a good time, but this could only be the beginning of a long and painful trend of rebelliousness and dissatisfaction from national courts.

So what should the Court do? Stand firm and hope for the best? Back down and show deference? Act as if nothing has happened and carry on with its own business?

Probably none of the above.

It is wise to stand firm when you are sure that you have taken the right decision, but it’s not so easy when your decision might be wrong. That’s probably the case in Taricco. On the other hand, improving the reasoning of a case-law is not a question of standing firm, it’s simply a question of doing a better job drafting judgments and explaining them. I believe that the Danish Supreme Court’s reaction has quite a lot to do with all that. And paradoxically, the Court of Justice is also being asked to take a tougher stance, particularly when it comes to complex technical analysis. This does not require to stand firm. It demands a firmer stance, and this is what the German Constitutional Court is asking from Luxembourg in the OMT judgment.

Therefore, it’s difficult to reconcile all the demands coming from these three upset national courts. But something has to be done, and it has to be done fast before it is too late.

In my opinion, the Court of Justice would be wise to be more empathetic towards national supreme and constitutional courts. Some will say that the Court already does that, but I think it does not, or not in the way I have in mind.

Take one example: in Gutierrez Naranjo, the Grand Chamber of the Court of Justice has recently stated that all Spanish courts have to set aside a judgment of the Spanish Supreme Court which limited the temporal effects of the nullity of an abusive clause in a consumer contract. The Spanish Supreme Court didn’t come to that conclusion simply because it was incompetent, arbitrary or naïve. It took that decision in 2013, right in the middle of the Spanish financial assistance programme, shortly after avoiding a complete bail-out of the country. The judgment concerned real-estate mortgage contracts, and thus the impact of the judgment fell entirely on the struggling Spanish banking system at the time. The Central Bank of Spain issued a report stating that a full retroactive judgment would have required another financial assistance programme, and thus the Supreme Court, with good sense, decided to limit the temporal effects of its judgment. The consumers were paid back in part, but the country avoided another painful rescue programme (and further conditionality, and further recession and further unemployment… should I carry on?).

The Court of Justice ruled in Gutierrez Naranjo simply stating that a nullity under Directive 93/13 cannot be limited in time. Period. No regard whatsoever to the circumstances of the case, to the circumstances back in 2013, to the reasons why the Supreme Court came to such a conclusion. Nothing. Brexit means Brexit. Mangold means Mangold. A nullity means a nullity.

The reader can just imagine how happy the judges at the Spanish Supreme Court are now with the Court of Justice, so he or she will not be surprised if sooner rather than later the Court of Justice finds another sign of rebellion from yet another supreme court of another Member State.

So is this all about deference towards national courts? Definitely not. It is about making careful and well-thought decisions that persuade national courts. The Court of Justice and national supreme courts are not antagonists, they share the same task of interpreting and upholding the law. But interpretation among different legal cultures will demand special attention towards the courts that are more strategically located. And to simply tell them that my decision stands because I have the authority, is a risky way of flirting with disaster.

Taricco was a preliminary reference made by an Italian first instance court. The Court of Justice would be wise to revisit its decision if none other than the Italian Constitutional Court considers that there is something wrong with the judgment. To simply reinstate what was said in Taricco and make the Italian Constitutional Court look like a fool is definitely not the way forward.

Danske Industri was a rather boring judgment that simply repeated what had been said in the past. A proper reaction to the Danish Constitutional Court’s decision would be to make a little effort when dealing with Mangold, Kükükdeveci and the like. If another Association de Médiation Sociale arrives in Luxembourg, it would be helpful if the Court of Justice explained properly what are the limits of Mangold, of the Charter’s social rights, and so on. It is not easy, of course, but if the Court of Justice is not willing to do so, who will?

Empathy is not deference, if it is done carefully and with care. But the current approach of the Court of Justice towards judicial challenges, asserting an authority by using the rationale of a “Mangold means Mangold”, or “a nullity means a nullity” kind of approach, might be the quickest path towards a painful (yet, alas, avoidable) disaster.

The purely internal situation in free movement rules – Some clarity at last (and from the Grand Chamber of the Court!)

The Court of Justice’s judgment in Ullens de Schooten, rendered yesterday, is a very welcome development. The Grand Chamber has put some order in a traditionally chaotic and obscure area of the case law: the definition of a purely internal situation in free movement cases referred by national courts in the context of preliminary reference proceedings. It was a life or death issue, because depending on whether the applicant proved to have a transfontier link or not, he or she would benefit, or not, from free movement rules. After many years of disorderly case law, mostly in chambers of five judges, the Grand Chamber has taken the reins and provided clear guidance.

In a nutshell, Ullens de Schooten confirms in general terms what the Court seemed to be doing in the past: as a rule, transfrontier links with free movement rules are quite flexible and easy to prove, but when there is no link whatsoever, then only in four different scenarios a national judge will be able to rely on free movement rules. The scenarios are the following:

  • First, when it is not inconceivable that nationals established in other Member States have been or are interested in making use of those freedoms for carrying on activities in the territory of the Member State that had enacted the national legislation in question, and, consequently, the legislation, applicable without distinction to nationals of that State and those of other Member States, was capable of producing effects which were not confined to that Member State. This is the Blanco Perez y Chao situation.
  • Second, when the referring court makes a request for a preliminary ruling in proceedings for the annulment of provisions which apply not only to its own nationals but also to those of other Member States, and the decision of the referring court that will be adopted following the Court’s preliminary ruling will also have effects on the nationals of other Member States. This is the Libert situation.
  • Third, when free movement rules may prove to be relevant in a case confined in all respects within a single Member State, where national law requires the referring court to grant the same rights to a national of its own Member State as those which a national of another Member State in the same situation would derive from EU law. This is the Guimont situation.
  • Fourth, cases in which, although the facts of the main proceedings are outside the direct scope of EU law, the provisions of EU law have been made applicable by national legislation, which, in dealing with situations confined in all respects within a single Member State, follows the same approach as that provided for by EU law. This is the Dzodzi situation.

It appears from yesterday’s judgment that the Court is putting the burden of proving the existence of any of the enumerated situations on the referring judge. This appears to be the case, because the Court makes in paragraph 55 a very specific reference to article 94 of the Rules of Procedure, a provision that lists the contents that must be included in an order for reference pursuant to Article 267 TFEU. In other words: the Court will be happy to apply any of the four exceptions to the purely internal situation rule, but only if national courts make an effort to explain why the referred case falls under any of these four situations. If the national court simply makes no effort whatsoever, then the Court will do what it did yesterday in Ullens de Schooten: declare the absence of a transfrontier link and the lack of arguments justifying the application of any of the four situations.

This is good news for lawyers that deal with free movement rules, particularly before national courts, but it does not solve the genuine problem. In fact, the failings of the previous case-law were not only to be found in a lack of consistency, but also in the difficulty to apply the standards that have now been blessed by the Grand Chamber. Take the Blanco Pérez y Chao exception: to argue that it is not inconceivable that nationals established in other Member States have been or are interested in making use of free movement rules is not much help, because it is difficult to imagine a case in which a national from another Member State may not, in hypothesis, “be interested” in making use of free movement. The Opinions of Advocates General Wahl and Kokott in the cases of Venturini and ETI, respectively, show how tricky this criterion can be.

So the Court has taken an important step, but probably not enough to provide all the much-needed clarity that free movement rules still need. But it’s a first step in the right and very welcome direction.

The judgment also speaks highly of the Grand Chamber’s role as a forum in which to deliver clear guidance over past and erratic case law. This has always been the role of the Grand Chamber, but it sadly lost its way in the past years. For too long a time Grand Chamber judgments were cryptic, sometimes contradictory and lacking a lot of much needed legal reasoning. Things have improved in the past year, and this must be the result of the new President, who has voiced his priorities in public, among which stands out the need to recover the role of the Grand Chamber as a forum to set guidance and principle. Ullens de Schooten might be a little frustrating, but it does way much more than what the Grand Chamber of the past used to provide to its infinitely more frustrated readers.

Miller, Brexit and the (maybe not to so evil) Court of Justice

In Miller, the High Court of England and Wales has ruled that Article 50 TEU must be triggered by Parliament and not by the Crown. The reasoning of the judgment is clear and logical. I would even add that it is elegant and stylish in its typically British sobriety.

But the decision is deeply flawed.

In paragraph 10 of the judgment, the High Court relies on the common position of all parties in the proceedings, according to which the notice of withdrawal under Article 50 TEU is irrevocable. Therefore, once Parliament or the Crown has triggered the procedure, there is no turning back. The High Court is quite clever by simply stating that this issue was not subject to debate by the parties. They all agreed on this: a notice of withdrawal is irrevocable. Therefore, the High Court says, irrevocable it is.

I am afraid it is not. And even if I am wrong, I am certain when I say that this question is completely open and subject to interpretation.

There are plenty of highly elaborate articles on the question of irrevocability of a withdrawal notice pursuant to Article 50 TEU. I will only referer, by way of example, to two very respectable authorities: Jean-Claude Piris, former director of the legal services of the Council, and Paul Craig, Professor of Law in Oxford University and a leading author in the field. Both agree that Article 50 TEU must be interpreted in such a way that a Member State is entitled to withdraw an application (“the withdrawal of the withdrawal”, as it is commonly termed) if it finally changes its mind in good faith. I would personally add that this should be made conditional on the unanimous agreement of the European Council, but this is, as well, open to interpretation.

The consequences of this interpretative question are enormous in the case of Miller, mostly because the High Court assumes that the triggering of Article 50 TEU entails, per se, a deprivation of rights that had been previously granted by Parliament. The rationale of the judgment is implacable: once Article 50 TEU is triggered, there is no turning back, and thus the loss of rights is inevitable. The loss will occur sooner or later, but it will certainly happen. And if those rights were granted by Parliament, only Parliament can take them away.

However, the High Court is relying on a more than dubious reading of Article 50 TEU, insofar the question of revocability is completely open and subject to interpretation. In fact, there are many more chances that an Article 50 TEU application will be revocable than the contrary, for the simple reason that the latter sits uncomfortably with common sense. Let us just imagine the following scenario: Article 50 negotiations begin between the UK and the EU and the backlash from markets is so enormous that the turmoil in the UK leads to a general election. To the surprise of many, liberals and labour win a large majority on the argument of stopping the process. As a result, the new coalition government would have a clear mandate to put an end to Brexit. The EU would not object for all the obvious reasons. The UK would terminate the process of leaving the EU after a second democratic decision of the British people. Is it reasonable to say that in these circumstances the withdrawal negotiations must go on? Is the Treaty really telling the Member States to carry on negotiating even if nobody wishes the negotiations to carry on? Is it really as ridiculous as that, or isn’t it more reasonable to assume that the UK, after a clear mandate of the British people, and with the unanimous agreement of the 27 member European Council, can withdraw the application and put an end to the withdrawal procedure?

I have always been an admirer of the British legal system, mostly for its taste for common sense and practicality. But in this case I must admit that I completely disagree with the reading that the High Court has purported in Miller, precisely for its lack of all practical rationale. It is impossible, I would even say preposterous, to assume that a Member State has to be forced to withdraw, no matter what happens, once it has triggered the procedure envisaged in Article 50 TEU.

Therefore, by reaching this very flawed conclusion in paragraph 10, the entire judgment falls apart like a house of cards. If the withdrawal notice is revocable, then there is certainly no deprivation of rights until the procedure has effectively terminated. As a result, the Crown can trigger the procedure and put it to rest as well. Therefore, the Crown, by triggering the procedure, is not depriving anybody of their rights.

The High Court was of course very much aware of all this. The reason why it probably relied on such a brittle foundation is quite simple: it was probably just trying to avoid making a reference to the Court of Justice. I am afraid that is the reason. But the price to be paid is quite high: a judgment that is now the subject of enormous political tension and constitutional debate in Britain is flawed from its very premise.

One wonders why the High Court is so reluctant to make the reference to Luxembourg. There is a political explanation that comes immediately to my mind: such a sensitive case cannot be left in the hands of the Court of Justice. It would be a humiliation and an unpalatable course of events for the now all-mighty Brexiteers that currently rule Britain.

But there is another and much more practical reason. A preliminary reference procedure could take up to a year and a half to be dealt with. Of course nobody wants these proceedings to drag on for such a long time.

Therefore, the question is whether the Court of Justice can decide such a case by way of an expedited procedure, and in what time-frame.

The Court of Justice can certainly make use of the expedited procedure in a case such as Miller. If it was used in Pringle, it would be unimaginable to discard it in a case like Miller, in which another question of huge constitutional relevance is raised. In fact, Pringle is a very useful reference, because it was decided by the Plenary of the Court, a full 28 judge formation, and in only four months. It could even be argued that it was decided in three months, because the preliminary reference was filed on the 31st of July and the Court is on holidays during the month of August.

But is it possible to solve a preliminary reference in an even shorter time-frame than the one in Pringle? For example, can the full Court rule in only one or two months? If the Supreme Court, that is about to hear the appeal against the High Court’s decision, decides to make a reference immediately, could it expect a judgment from the Court of Justice by mid-January 2017? The time-frame is very relevant, because a judgment from Luxembourg in mid-January would allow the Supreme Court to rule by the end of January or early February. In that case, if the Supreme Court ruled in favor of the Crown, Theresa May’s calendar would remain unaltered and it would be possible to file a withdrawal application in March 2017, as announced.

According to Article 105 of the Rules of Procedure (“RP”) of the Court of Justice, the expedited procedure allows the President to derogate from the RP. The only rules of the RP that the President cannot waive are those provided in Articles 105 and 106 RP. From these provisions it seems clear that the President cannot omit the written part of the procedure (as it can in an urgent preliminary reference procedure, pursuant to Article 111 RP). In fact, Article 105 RP ensures a minimum 15 day time-period to all the parties to file their written submissions.

However, things can go quite quickly after that.

If the Supreme Court referred the case to Luxembourg, say, on 8 December 2016, the Court of Justice could immediately serve all the parties in the main proceedings and interveners and grant them 15 days only to submit written observations. The President could fix the date of the hearing on Tuesday, the 3rd of January. The Advocate General would be heard orally on the 5th of January and the Court would deliberate on its traditional Friday morning Grand Chamber deliberation day, on January the 6th. The draft judgment would be finalized and edited by the lecteurs d’arrêts by the 10th and ready for an expedited translation (to English only, at least for a time being) that would allow the Court to publish its decision on Tuesday, 17 January 2017. This timeframe would allow the Supreme Court to deliberate during the following two or three weeks and thus allow, whatever the outcome might be, either the Crown or Parliament the power to decide within the current time-frame announced by Theresa May.

Of course, as the reader will have noticed by now, there is a paradox to all this.

As a result of the High Court’s refusal to make a reference to Luxembourg, hardcore Brexiteers are now facing a daunting prospect for their Brexit plans. However, a reference to the Court would probably provide Brexiteers with a welcome surprise, because I am quite certain that the Court would side with Piris and Craig on this one: Article 50 TEU is revocable for all the obvious reasons previously mentioned. In fact, a procedure in Luxembourg would grant all the Institutions concerned, and all the Member States, the chance to take a position on this crucial issue of EU constitutional principle. And I am quite certain that they would agree with Piris and Craig too.

If the Court followed this argument and came to the conclusion that Article 50 procedures are revocable, then the Supreme Court would have good reasons to overrule the judgment of the High Court. After all, if the withdrawal application is revocable, the Crown is not overstepping into Parliament’s terrain, quite the contrary. No rights would be deprived from the decision of the Crown to trigger Article 50 TEU.

As strange as this might sound, hardcore Brexiteers have now their most reliable ally not at home, but in what they have considered to be, all these years, the evil, monstrous, devilish, undemocratic, unelected, corrupt and dictatorial Court of Justice of the European Union.

Maybe they realize now that it is not such a bad Court, after all.