Goodbye 2017

It is time to say goodbye to 2017 and hello to 2018. For us, EU lawyers, 2017 has been quite a year. The EU picked up a lot of self-confidence despite the Brexit and Trump debacle. After Emmanuel Macron’s big win in the French Presidential election the EU seemed to be back in business. Reform of the euro is back on the agenda, Treaty reform is no longer a taboo and the Commission feels self-confident enough to bring Article 7 proceedings against Poland. The EU is back on track.

But in Luxemburg, where time and space seem to work on parallel realties, the Court of Justice has been in business for quite some time, despite Brexit, Trump and all the lot. Fortunately, nothing has stopped the Court from its daily routine and 2017 has been a very exciting year in terms of case-law, but not considerably more exciting than 2016, or 2015, or 2014, etc… The Court lives in a comfortable bubble in Luxembourg, far away from the political fore, from national judiciaries and media. Of course the bubble is ever more fragile and the weight and relevance of the Court in society is growing more and more relevant. But for the time being, and fortunately for all, the European on-going existential crisis does not seem to affect its ultimate interpreter of the law.

2017 has provided landmark judgments in two areas of the law: asylum and fundamental rights. There have been other areas in which the Court has rendered very important judgments, but I think that these are the two main areas that have been subject to the scrutiny of the Court with particular intensity.

In the field of asylum, the Court delivered a very disappointing decision in XX, on the so-called humanitarian visa, which would have recognised the right of asylum seekers to request asylum through diplomatic or consular representations of Member States in third countries. Despite a very passionate and cleverly construed Opinion of Advocate General Mengozzi arguing in favour of a positive reply, the Court didn’t find the courage nor the appetite for a fight with all twenty-eight Member States, and said no. In the same vein, in Jafari, the Court faced the legal status of illegal mass crossings of frontiers in the context of the Dublin system, but no flexible solution was to be found to provide comfort to the asylum seekers concerned. Other important issues were raised in cases in which the time-limits to do a transfer to the competent Member State were breached. And of course, the relocation Decisions of the Council were challenged by the Visegrad group and the Court ruled, in a very detailed and extensive decision, on the legality of the relocation framework, only to dismiss the very numerous grounds of review brought by the applicants. The refugee crisis has kept the Court busy and it does not seem to have stopped in 2017. In 2018 the EU-Turkey Agreement will be reviewed on appeal, after a very surprising ruling of the General Court.

Fundamental rights have also been a major source of activity in Luxembourg. Of course most of the asylum cases concern human rights as well, but besides the cases aforementioned, the Court has handled other relevant dossiers with very important consequences on the interpretation of the Charter. Just to name a few, in M.A.S. the Court reviewed its Taricco decision on the scope of the principle of legality in criminal proceedings, at the request of the Italian Constitutional Court. This is a major follow-up to the case-law on levels of protection of fundamental rights after Melloni, which gives some hope to those (like myself) who tried to make some sense of the way in which Article 53 of the Charter could work in a post-Melloni world. In Berlioz the Charter displayed all its force in the context of tax cooperation among national authorities, introducing new powers of review for enforcing Member State authorites on the grounds of fundamental rights review. In Florescu the Court ruled in favour of the application of the Charter to austerity measures resulting from a financial assistance programme, providing another relevant tool in the complex field of EMU and human rights. The headscarf in the workplace, with the huge implications that the topic entails, particularly in light of the fundamental right to freedom of religion, was the topic that the Court dealt with in Achbita and Bougnaoui. The two judgments were a combined balancing act on the part of the Court that so far are leaving commentators unimpressed.

And in a more institutional note (but closely related to fundamental rights), the European Ombudsman was left subject to the general case-law on damages, after the Court quashed a General Court ruling that granted the Ombudsman a larger margin of action in damages cases. Also, in Breyer the Court had another chance to rule on the scope of Regulation 1049/2001 on access to documents, but more particularly of Article 15(3) TFEU, which provides a significant derogation applicable to the Court of Justice, the European Investment Bank and the European Central Bank. The Court stated that the derogation does not apply to other Institutions that hold relevant documents of the Institutions enumerated in Article 15(3) TFEU. Breyer is an important step in facilitating access to documents of the Court and the two EU “banks”.

There have been some relevant judgments on the jurisdiction of the Court and the EU judicial system as well. In Commission/Poland, for the very first time, the Court ordered interim relief in infringement proceedings together with penalty payments. A first that is not devoid of risks, considering that penalty payments have a clearly “punitive” nature and their application in the case was made by analogy with Article 260 TFEU. Criminal lawyers will probably raise an eyebrow or two. In Rosneft the Court extended a little bit its jurisdiction (only a little bit) in order to allow references of validity on EU acts in the field of the Common Foreign and Security Policy. The judgment is a good display of how the Court can interpret the Treaties in a very conventional way, but with huge implications for its jurisdiction in the CFSP. In British Airways the Court sided with the General Court in a jaw-dropping decision which still confounds many: if the General Court introduces a plea on its own motion, the applicant gets stuck with the form of order sought in its application, which was lodged, of course, before the new plea was brought by the court. The Court ruled that this is perfectly fine, but one wonders what the European Court of Human Rights would have thought, in light of Article 6 of the Convention. And of course, some developments in the ever-evolving field of direct effect gave us food for thought, as in Farrell, in which the Court expanded quite significantly the notion of “state authority” in order to invoke Directives in vertical relations.

EU citizenship had its round of cases too. Lounes was a hugely relevant decision which gave clarity (and a good outcome) to dual nationals that had acquired dual nationality after having exercised free movement. In the context of the Brexit negotiations, the judgment has given considerable comfort to a relevant number of EU nationals living in the UK with their families, after having obtained UK nationality. Chavez-Vilchez was another important development in the Ruiz Zambrano doctrine, confirming the importance of the proportionality test, as well as the role of the Charter in the interpretation of Article 20 TFEU.

And of course it was an important year for the internal market, competition and state aid. The Uber decision laid the foundations of how online platforms must be regarded under free movement rules, providing a rather broad notion of platform activity that allows regulators to go into the overall activity, and not the specific online action of the platform. The Court rendered a ground-breaking judgment in the case of Intel and provided what seems to be a major shift in its approach towards competition judicial review, much more focused on fact rather than formalistic presumptions in the interpretation of 102 TFEU. For the first time, state aid review was applied to private catholic schools with special agreements with the national education authorities in Spain. Also, the powers of hearing officers in competition procedures were under the Court’s scrutiny for the first time in Evonik Degussa.

But above all, this was the year in which the Court became, at last, the ultimate judicial diplomat of the European scene. It had been a long time since the Court admitted to be wrong (in Metok, I believe…). This time it has deviated from past case-law at the request of a Constitutional Court, a first that deserves very special attention from commentators. The German Constitutional Court sent its second preliminary reference, in a follow-up to the OMT case, questioning the ECB’s quantitative easing programmes of 2015. This time the tone and approach of the reference was very different to the one in OMT. The German Constitutional Court seems to be comfortable in its communication with the Court of Justice, and this is in part a success of the Luxembourg court and its renewed diplomatic skills. And 2017 was also the year in which the Rule of Law became not just rhetoric, but values in action. The Order in Commission/Poland proves how seriously is the Court of Justice willing to ensure its jurisdiction and authority in a rogue Member State. Sticks and carrots for all, but with the Court of Justice at the very apex of the decision-making process.

In the meantime, we can ponder on what exciting new challenges 2018 will bring for the EU, its legal order and us, EU lawyers. For my part, I will be modest and simply wish for things to carry on as they currently are. 2016 was a rotten year for the EU (and the world). 2017 was a comforting return to normal and hopefully it is here to stay.

And for you, dear readers of Despite our Differences: May the force be with you all!


To bow at the rhythm of an Italian tune

“Do not correct a fool, or he will hate you; correct a wise man and he will appreciate you”.

One can wonder how much hatred or appreciation the judges of the Court of Justice felt when the Italian Constitutional Court referred the explosive reference in the M.A.S. case, questioning a Grand Chamber judgment of the Luxembourg court and inviting the wise European judges to rectify the recently enacted decision in the case of Taricco.

After all, as the Spanish saying goes, to rectify is for the wise.

And rectify they did. This very morning, on 5 December 2017, the Court of Justice bowed to the good reasons of the Italian Constitutional Court and corrected the harshness of the judgment in Taricco, rendered by the Grand Chamber in 2015. It is quite spectacular how and why the Court is adjusting its case-law, but the story needs a little bit of context.

In 2013 the Court of Justice ruled in the case of Akerberg Fransson that the Charter of Fundamental Rights has a broad scope of application in Member States, particularly when Member States are enforcing fiscal measures that concern the Union’s own resources (ie, VAT). Shortly after, the German Constitutional Court (among others) accepted the Akerberg Fransson rationale, but on the grounds of the specific competence of the Union in the area of its own resources. Nothing of the kind would ever be accepted in other fields of shared competence. The Court of Justice took good note and started rendering Orders in which it argued, in a wide array of cases, how the Charter did not apply when Member States implemented EU law.

In 2015, a new Akerberg Fransson case reached the Court, straight from Italy, in Taricco. In fact, it was a reverse Akerberg Fransson case, because it concerned national measures that precluded Member States from effectively collecting VAT. Akerberg Fransson was a typical fundamental rights case in which an individual fights against disproportionate State action. Taricco raised the opposite situation: individuals profited from rules on the time-limitations of criminal proceedings, which tied the hands of criminal courts when launching judicial investigations and, eventually, making a conviction. In good Akerberg Fransson rationale, the Court of Justice stated that EU law precluded a Member State from introducing a rule on time-limitations like the Italian one, which undermined the State’s ability to fight fraudulent practices that undermined the Union’s own resources.

And then, all hell broke loose in Italy.

By setting aside the Italian provision on time-limitations, criminal judges reopened thousands of criminal charges that had been time-barred under the illegal rule. A sort of delayed retroactive application of the criminal offence was the odd result of the Taricco judgment. Criminal lawyers were perplexed. Academia was stunned. The Corte Costituzionale, as the ultimate guardian of fundamental rights in Italy, was enraged. It was obvious that a rule on time-limitations of criminal proceedings was not a mere procedural provision, but a very relevant rule as to the substance that governs the criminal liability of a person accused. The Corte Costituzionale had no doubt that Taricco had triggered a severe blow to the principles of legality of criminal offences and of non-retroactivity of criminal law. What mesmerized the Corte Costituzionale was that the Court of Justice had not seen it coming.

The Italian court’s perplexity and ire appear quite clearly, and for all of us to see, in the reference for a preliminary ruling that it made in early 2017 to the Luxembourg court. In a beautiful exercise of judicial diplomacy, in which a stick and carrot strategy appears in all its bizarre elegance, the Corte Costituzionale reminds the Court of Justice what the principle of legality is, what is Strasbourg’s position on the matter, and how this could be amended by interpreting Taricco in a way that is consistent with the fundamental rights of individuals. The reference was an outright challenge to the Court of Justice, but in such terms that it showed a reasonable way out of the cul-de-sac that Luxembourg had driven itself into.

This morning (and in stark contrast with the Advocate General’s Opinion) the Court of Justice accepted the Italian court’s reading and it admitted that Taricco can be made conditional on the protection of fundamental rights under national law. In other words, the fight against tax fraud is relevant, particularly when it concerns the Union’s own resources, but national fundamental rights are prevalent. Thus, if the setting aside of a national rule on time-limitations entails a breach of a national fundamental right, such as the right of legality and non-retroactivity of criminal offences, the rule on time-limitations must stand. It is for the European or national legislature to find a balance between legal certainty and effectiveness in the fight against tax fraud, but, as long as there is uncertainty in the law, the national judge must ensure that the protection of fundamental rights prevails.

The M.A.S. judgment can be interpreted as an incredible self-inflicted blow on the part of the Court of Justice. The Italian court gave the Court of Justice no other option and thus this pathetic result shows the weakness of the European court and its unsuitability to deal with fundamental rights issues. It can also be interpreted as the first of many other humiliating and inevitable concessions to national constitutional courts in the near future.

But the M.A.S. judgment can also be seen from a different angle.

First, the judgment does not overrule Taricco, it complements it with another additional layer. It is true that Taricco reviewed the issue in light of Article 49 of the Charter and it quite bluntly rejected the argument that setting aside the rule on time-limitations entailed a breach of the said provision. In M.A.S. there is a much more thorough analysis of the consequences resulting from the setting aside of the time-limitation, and it is clear that the outcome, from the perspective of Article 49 of the Charter, is exactly the opposite to the one in Taricco. The Court has thought things twice and its decision is different now. It’s wiser too.

Second, the M.A.S. judgment makes a reasonable application of the Melloni criteria, according to which national courts can choose between the standards of fundamental rights under national law or EU law when implementing European provisions in areas “not completely determined” by EU law. In Melloni there was no discretion for the Member State, so the standard of the Charter was applied and the more protective standard in the Spanish Constitution was set aside. Now, in M.A.S., the Member State has quite a lot of discretion under EU law, and the Court recognizes such discretion and allows the Constitutional Court to make full use of it in order to uphold the higher standard of protection under Italian law. It could be argued that Taricco could act as the derogation that so much intrigued commentators in Melloni (“primacy, unity and effectiveness EU law”), but that has not been the case. The Court makes no reference at all to this derogation, even though the protection of the financial interests of the Union could be perfectly located under the terms of the derogation.

Third, the Court has balanced the effectiveness of EU law in the area of own resources against the protection of fundamental rights under national law, and the latter have prevailed. This is a very relevant development that downplays the critique of many authors who argued that the Court of Justice has devalued the Charter and the role of fundamental rights in EU law by boycotting the EU’s accession to the ECHR. I would say (and I have been saying for quite some time now) that Opinion 2/13 had to be understood in its own peculiar light and context. In fact, the Court’s evolution on fundamental rights has been, overall, quite positive since 2013. The evolution has been slow, some decisions have been disappointing, but the overall result is one of a Court coming to grips with a revolutionary new tool of momentous potential. Putting the Charter at work is no easy task, as any constitutional judge who has experienced a similar process at State level well knows. Today’s decision is another example of how the Court is playing a new tune with its new instrument, and the outcome is very promising.

And finally, it is fascinating to see that the Court of Justice has finally bowed to the good sense of a Constitutional Court, and how that Constitutional Court has not been the one we were all thinking of. I think it is very wise for the Court of Justice to show that it can be proved wrong by a Constitutional Court, and it is wise to say so in the context of a preliminary reference, and one that is coming from Italy.

The Italian Constitutional Court was the first constitutional jurisdiction of a founding Member State to make a preliminary reference, back in 2007 (the Belgian Constitutional Court was created after the founding of the Communities). The contralimiti to EU law have been fleshed out by the Italian Constitutional Court throughout the years, but in a much more cooperative tone and approach that has contrasted with the bluntness and, at times, arrogance of other constitutional jurisdictions. The Corte Costituzionale is a paradigm of what a Constitutional Court should be in the always complex relations between EU law and national Constitutions.

Whether it is a coincidence or not, the truth is that no other Constitutional Court deserves, like the Corte Costituzionale, the honor of having called the Court of Justice’s hand. It is a rare but important privilege that the judges of the Palazzo della Consulta can now be proud of.

Provisional (And Extraordinary) Measures in the Name of the Rule of Law

The showdown was inevitable. At some point, the Court of Justice had to show its teeth and remind the Polish government of its duty to comply with the rule of law and with the values enshrined in Article 2 TEU. For the Member States of the EU, the rule of law is not an option. You either take it or leave it (and thus leave the EU). However, Poland’s late attitude towards EU integration, happily accepting the money from EU funds but showing its back on the fundamental values of the EU, was inevitably going to be confronted, sooner or later, at the Court of Justice.

If the showdown was predictable, the surprise has been that it has all happened so quickly, so frontally and… in interim relief procedures in an infringement action against Poland.

The showdown, or the latest one so far, took place last Monday, on 20 November, when the Court of Justice, in an exceptional Grand Chamber formation, granted interim relief requested by the Commission and, for the first time, declared its jurisdiction to impose penalty payments in such procedures. A first in the history of EU law.

The facts are rather straight-forward. The Polish authorities ordered a series of measures with the aim of protecting the security in the Białowieska forest, one of the Natura 2000 sites and Poland’s most valued forest park. The initiative would entail cutting down approximately 180.000 cubic meters of forest, in an area that is the home of Europe’s largest mammal and forest trees. The Commission did not believe that the initiative was simply a measure to protect hikers from branches falling off the trees. An ambitious planning project was discretely under way too.

On 27 July 2017, the Vice-President of the Court of Justice granted provisional measures prior to holding a hearing in the interim relief procedures. Nevertheless, the works in Białowieska continued. The Order of the Vice-President was ignored.

On 11 September 2017, the hearing in the provisional measures procedure took place. In the course of such hearing, the Commission highlighted the fact that the Vice-President’s Order granting interim relief had been ignored. After a heated discussion, the Commission suggested that the Court should impose penalty payments on the defendant as long as it carried on disregarding the decisions of the Court of Justice. A few days later, the Commission submitted in writing a formal request for the imposition of penalty payments in case the Polish authorities continued to ignore the Court’s orders.

To the surprise of those who were not following the proceedings closely (as was my case), on 20 November 2017 the Court of Justice startled its readers by rendering an Order in Grand Chamber and granting the Commission’s request of interim relief as well as the penalty payment. The Order considers the option of imposing penalty payments in interim relief procedures, a possibility that is only explicitly envisaged in Article 260 TFEU for the case of non-enforcement of judgments in infringement procedures. Quite effortlessly, the Court of Justice draws a parallelism between Article 260 TFEU and the general provision on interim relief in Article 279 TFEU, and comes to the conclusion that the purpose of interim relief is to ensure the outcome of the procedure, whatever the final decision on the substance might be. Quite rightly (in my opinion, at least) the Order declares the Court’s jurisdiction to impose penalty payments under Article 279 TFEU proceedings (proceedings which are accessory to the infringement procedures that could eventually lead to an Article 260 TFEU penalty payment).

There are two points in the Order that I find particularly interesting.

First, the way in which the Court of Justice handles this new power is quite nuanced and clever. It does not impose the penalty payment in concreto, only in abstracto. After considering the facts, the Order imposes at least a 100.000 euro/day penalty payment in case that the Polish authorities continue to ignore the decision of the Court. But it is for the Commission to ascertain, in a period of time granted by the Court, whether such conduct still persists. This is a smart move on the part of the Court, with a typical stick and carrot approach to a sensitive dossier. In addition, the Court has bought the Polish government’s argument on the need to protect pedestrians from the fall of heavy branches and trees, and thus the Order allows measures that are strictly necessary to achieve the goal of protecting the security of the premises. It is for the Commission, not the Polish government, to monitor the measures and report to the Court.

But the most interesting point of the Order is cleverly hidden in paragraph 102. At the very end of the passage, shortly after considering the fact that the Vice-President’s Order was ignored by the Polish authorities, the Court of Justice adds:

Indeed, the power to enforce upon a Member State the provisional measures enacted by the judge in interim relief procedures, with the faculty to impose a penalty payment in case of non-compliance, is intended to guarantee the effective application of Union law, which is an inherent value of the rule of law enshrined in Article 2 TEU, upon which the Union is founded” (my own translation).

For the first time, the Court of Justice has shown its teeth in the Polish crisis, and it has done so pointing very subtly to the nuclear option. So far, the messages were nuanced, in public or even in private. The Court of Justice would not tolerate attacks on the rule of law and on national courts, or so was the narrative when judges of the Court were asked in academic conferences or in public speeches. These comments were usually a reaction to the news about domestic measures in some Member States, in which national courts or officials were targeted by populist governments in the name of “the people”. But now it is for the Court of Justice to witness how it is the victim itself of an attack on the rule of law. Constitutional Courts were being ignored in some Member States (Poland, Spain…), and then came the turn of the Court of Justice.

The reaction from Luxembourg has not taken long. By September of 2017 it was obvious that the Polish government was ignoring the ruling of the Court rendered in July. Two months later, in Grand Chamber, the Court of Justice has sent the strongest possible message, in an interim relief procedure and creating, in an innovative but (in my opinion) convincing way, pecuniary tools to make sure that the measure takes a painful bite from the Polish budget. At the same time, the Court has hinted at the tools that Article 2 TEU can provide, for the time being on a provisional basis. Who knows what other jurisdictional instruments could this provision grant if the State’s misconduct continues.

Article 2 TEU is now starting to take shape as a relevant normative utensil in the Court of Justice’s toolbox. The first time it has shown its teeth it has allowed the Court to reinvent provisional measures in the name of the rule of law. The next time it is used again, I wonder what surprise the Court is willing to share with us… in the name of the rule of law.

The courageous Court of Justice, the creative but fair and balanced jurisdiction that was so deeply missed in the humanitarian visa case, is back in business again. Hopefully it is here to stay.

On Cockroaches and the Rule of Law

As I awoke one morning from uneasy dreams I found myself transformed in my bed into a gigantic insect. Like Gregor Samsa in Kafka’s Metamorphosis, I had mutated into an enormous and abominable cockroach with no prior warning. It just happened. As I woke up, I could feel how my new legs and antennae moved with sinuous speed.

Then I knew what I really had become. I had mutated into a Spanish fascist. My home was not my home anymore. It was the home of a fascist. My country was a fascist country. That morning I understood that the past had been a lie and the present was the genuine truth. All this time I had been living in a fascist dictatorship and I, of all people, had been part of the conspiracy with my fascist thinking and fascist talk.

As I read the press today, I see the deposed President of Catalonia, in hiding in Brussels as he awaits the enforcement of a European Arrest Warrant, claiming that Spain and its government, with the silent support of the Spanish people, has executed a coup d’état in Catalonia. Spain’s government has not only imposed home rule in Catalonia, it has also jailed the former leaders of the Catalan government. Franco is back. Spain is not a country subject to the rule of law. Spain has political prisoners. Spain joins the ranks of Venezuela, Turkey and Zimbabwe. Spain is a democratic anomaly in the very heart of the European Union.

Thus, I suddenly woke up living in a fascist country, being a fascist myself, a conspirator and an accomplice of the tyrants that oppress the Catalan people.

It is very sad to read about this in the international press. And it is worrying that those who promote and distribute such news, including respected liberal journals like The Guardian or The New York Times, are blind or unmoved by Spain’s recent history if it doesn’t fit the new (and more appealing) narrative of democratic regression and the return of Franco.

I have never been much of a nationalist Spaniard, but I must admit that I always felt, and still feel, proud of my country’s path towards democracy. With all its defects and imperfections, Spain managed to transform a centralized military dictatorship into a decentralized, open and modern democracy with a vibrant economy and its own world view and alliances in Europe and Latin America. It handled and smoothly quashed a military coup d’état in 1981 and it transformed the burocratic structures of Franco’s Spain, including its military, police and judiciary, into a modern administration.

In 1978, Spain was an economically divided country, with a prosperous north and an impoverished and backward south. Almost forty years later, the divide has been reduced and Spaniards enjoy equality of opportunities no matter where they are born. I was born in the north, grew up in the south and currently live in the center, and I have never felt as if I lived in different countries. The gap between north and south has been successfully erased thanks to a clever and hardly-worked combination of economic policy and solidarity, promoted by both right-wing and left-wing governments in Madrid.

Spain fought for three decades against a vicious terrorist organization, ETA. Basque nationalism had a deadly twist we should never forget about. ETA killed hundreds of innocent military first, but then, in its deadliest times, it assassinated politicians, journalists and even innocent bystanders. In 1987 ETA blew up a department store in Barcelona, killing twenty-one innocent Catalans whose sole crime was simply to walk into a store. ETA has been defeated and this outcome has been the result of the rule of law in action. Police force, judicial decisions and democratic elections in the Basque Country have led this region to the end of terror and to the arrival of its most prosperous times ever. Spain handled the fight against terrorism with much more dignity than other countries (I think, for example, of the UK and its legacy of State violence in Northern Ireland). The darkest episodes of the fight against ETA, in particular the attempt to create a paramilitary force with the tacit support of the government in Madrid, concluded with the imprisonment of the former Spanish Minister of the Interior. The rule of law worked, even when the Spanish government was tempted to take shortcuts.

Spain has a world-class universal public health system that provides security, assistance and dignity to all its peoples. The country was a pioneer in equality rights when it recognized in law the right of all gay men and women to marry and adopt children in 2005, in a country in which the presence of the Catholic Church should not be understated. Spain handled a terrible economic crisis between 2008 and 2015 with incredible examples of solidarity among its peoples. Family, friends, employers and social workers managed to turn a depressed country into a place where dignity and solidarity kept people going. During this time, despite having a large migrant population, Spain never fell (unlike other European countries) under the spell of anti-immigrant or xenophobic political discourse, quite the contrary. We sailed through this crisis with huge pain, but Spanish society proved the world how social cohesion is supposed to work in difficult times.

I very much doubt that people like Felipe González, Gil Carlos Rodriguez Iglesias (former President of the European Court of Justice) or Manuel Marín (former Vicepresident of the European Commission), to name only a few, were undercover fascists. I very much doubt that the Spanish Constitutional Court, while developing one of the most far-reaching doctrines on fundamental rights, still in force today, was just a part of an organized plan to deprive the Catalan people of their rights and identity. I very much doubt that building a socially and economically strong country was simply a strategy to humiliate the rich northeastern part of the country.

Part of Catalonia’s political establishment began in 2011 a journey towards independence with the claim that “Spain robs us” and the argument that a backward country cannot hold hostage a sophisticated and modern society like Catalonia. In the midst of Spain’s worst economic crisis, some Catalan politicians seized the moment, at a time of extreme weakness in Madrid, to push a nationalist and divisive agenda that has led the region to its worst social, political and economic crisis in years. Home rule has been the result of six years of madness in Catalonia’s regional government, a madness that at times is frightening when you hear the ethnic and pseudo-racist discourse of some of its leaders. On 27 October, the Catalan Parliament, with the support of the regional Government headed by its President, declared independence from Spain, contravening the Statue of Autonomy of Catalonia, the Spanish Constitution and, yes, of course, the Criminal Code.

The promoters of that declaration are now in the course of criminal proceedings, as they would have been in Germany if the leaders of Bavaria had taken the same course of action, or in France if the nationalist leaders of Corsica had been tempted to copy their Catalan counterparts. In the meantime, the former President of Catalonia, Carles Puigdemont, hides in Brussels as he orchestrates a campaign to shame and disgrace the reputation of Spain as a country governed by the rule of law. The strategy is quite simple: repeat over and over again that Spain is worse than Turkey and that its government is a corrupt and viciously totalitarian organization and people will end up believing it.

But I’m afraid it’s not true. No matter how hard Mr. Puigdemont tries to make me and my fellow Spaniards look like cockroaches lying on their beds, the truth is that we are all still looking like Gregor Samsa. In fact, many of us in Spain wonder if it is rather Mr. Puigdemont, as well as many other Catalan nationalists who rejected independence for years but have now embraced this new religion, the real victims of an unfortunate metamorphosis.

In the meantime, the rule of law is alive and kicking in Spain. Mr. Rajoy has good reasons to keep it this way. Any regression towards darker times would be severely punished in the next general election by Spanish voters. Thus, the rule of law is doing well in Spain, but so is democracy and its checks and balances. The virtues that the Catalan Parliament and Government have been refusing to the opposition in Catalonia and to the millions of Catalans who do not believe in independence, have eventually found support in the country that Mr. Puigdemont and his supporters so vehemently deplore. If that makes of me a fascist, I wonder what it makes of Mr. Puigdemont.

Extending the scope of direct effect: old tools for new challenges

In Farrell, rendered by the Grand Chamber of the Court, the doctrine of direct effect has been given a boost. The case is a rather straight-forward one, but the questions raised by the Irish Supreme Court prove that old classics die hard, and that clarity is not always a synonym of well-established law.

In brief, the Irish Supreme Court raised to the Court of Justice its doubts as to the scope of the Foster doctrine, according to which individuals in national proceedings can directly invoke Directives, but only if they do so against an “emanation of the State”. The Court of Justice had developed a broad interpretation of the term in Foster and stated that:

a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included in any event among the bodies against which the provisions of a directive capable of having direct effect may be relied upon”.

It is important to highlight that the two main features that put a body under the category of “emanation of the State” are mentioned conjunctively: to provide a public service under the control of the State and to hold special powers.

In Farrell, the Irish Supreme Court had doubts as to the scope of this assertion and how both requirements interacted, and the Court of Justice, in line with Advocate General Sharpston’s Opinion, confirmed that the Foster doctrine is to be interpreted broadly. A judgment that was already rather broad, is now to come to terms with an even broader interpretative approach.

According to the Court, the two conditions that confirm whether a body is an emanation of the State are not to be considered accumulatively, but alternatively. Despite the fact that Foster is quite clear in the use of the conjunction “and”, in Farrell the Court comes to the conclusion that “the conditions that the organisation concerned must, respectively, be subject to the authority or control of the State, and must possess special powers beyond those which result from the normal rules applicable to relations between individuals cannot be conjunctive”.

Farrell is a welcome development in the case-law. Many years have passed since Foster, but the case-law had been hinting on several occasions at the changing nature of the doctrine of emanations of the State and its impact on directives. In fact, the Irish Supreme Court made the reference in Farrell because it considered that the case-law of the Court had developed inconsistently. The judgment in Farrell confirms that the broad approach is the one to follow in the future.

The Court’s decision in Farrell is proof of the importance that direct effects still holds in EU law. After more than half a decade, the doctrine of direct effect carries on evolving and adapting to the changing nature of the EU. It is wrong to affirm that direct effect does not matter anymore, or that it is just an infant disease. Whether we like it or not, direct effect is still a crucial tool for EU lawyers without which we cannot properly work in national jurisdictions.

But it is also important to reflect on the implications that this broadening of direct effect has in the current context of integration and EU law.

First, the “emanations of the State” have appeared as means of State action through non-conventional bodies. The welfare state of the late XX century has forced most Member States to assume different forms and appearances in order to provide public services and to guarantee public interests efficiently. Foster is a reaction to those developments. But thirty years later, we are witnessing how new and challenging “emanations” evolve with a power equivalent to the State’s. Just to give an example, the growing power of on-line platforms, whether they may be for social or commercial purposes, is proving to be a terrific challenge for the traditional powers of the State. The way in which we communicate, socialize, buy and learn are coming increasingly conditioned by the policies of multinational on-line platforms. They are obviously not an emanation of the State, but when they breach a Directive they can hardly be considered to be innocent bystanders.

Second, the broadening of the scope of Foster has an impact on other areas in which “horizontality” is relevant. Think, for example, of the Court’s case-law on the scope of free movement freedoms among private parties. The traditional Wouters and Bosman case-law applies quite nicely to FIFA or trade unions, but it can hardly be applicable to Facebook or Google. If the Court is taking an important step in Farrell, it would be reasonable to assume that it will start providing similar guidance in the area of free movement.

This also applies, even with more force, to the horizontal application of fundamental rights, or at least of some fundamental rights. After Dominguez and AMS, the Court showed its unwillingness to engage on the issue of horizontal effects of the Charter. It seems to me that the Court was simply begging for time, waiting to resolve other principled and complex issues that also concerned the Charter. At the time of Akerberg Fransson, Melloni, Digital Rights Ireland, etc…, the Court seemed in need of some breathing space in order to address other tricky issues (in theoretical, dogmatic and practical terms), as is the question of horizontal effect of fundamental rights. Several years have gone by since those judgments were rendered, and Farrell is good proof that the Court has begun to think about the issue of horizontality. The time has probably come to address the issue of horizontal effects of fundamental rights in the Charter, both in the case of “rights” and “principles”.

All in all, Farrell can be the starting point in a new line of case-law that adapts and refines the scope of EU law in situations in which individuals engage in relation with other individuals, or entities, that act as individuals but are closer to a State or to a State’s function. In the time of on-line platforms, but also of fake news and disruptive private movements with an ability to alter democracy and the rule of law, it is good news that the Court of Justice is taking the first steps in revisiting old classics, now in need of fresher looks.

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.