This blog has been very inactive lately and I apologize for that. The Court has given so many excuses to post on interesting judgments and opinions, that it is difficult to choose where to start. There are fascinating opinions concerning the EU’s scope of action when acting in unconventional domains, such as state aid rules as applied in the context of bailed-out banks in the eurozone (Kotnik), EFSP measures that are not “restrictive” but with clearly limitative effects (H), or the Commission’s and the ECB’s liability prior and during the Cypriot bail-ins (Ledra Advertising and Mallis). In the past difficult years the EU has been moving in extremely blurry domains, and now we are beginning to see the practical consequences for individuals and undertakings. The overall outcome is not always very inviting, I must say.
Other decisions of the Court have been more uplifting. Aranyosi and Caldadaru is a remarkable judgment that marks a shift in the Court’s traditionally hard stance on mutual recognition. In line with the precedent in N.S., the Court has introduced a very important proviso to mutual recognition in cases where there might have been a breach of Article 2 of the Charter in the issuing Member State. The constitutional courts that questioned the Court’s commitment to fundamental rights in harmonized areas subject to mutual recognition mechanisms, have good reasons to think twice after the Grand Chamber’s judgment in Aranyosi and Caldararu.
In PFE, the Court rendered a very important decision for the preliminary reference procedure and for the Court’s relationship with national courts. When asked about the duty of a chamber of the Italian Supreme Court to refer a case to the Plenary of the Supreme Court in order to overrule a previous decision, the Court stated that such a duty is in breach of Article 267 TFEU: if the chamber is certain that the Plenary got it wrong in the past, nothing should preclude it from making a reference to the Court in order to confirm the chamber’s assessment. For the first time, the Court has applied Article 267 TFEU to the internal arrangements of collegiate courts in Member States, going well beyond the typical scenarios in which national procedural rules come into conflict with the duty/faculty to make a preliminary reference.
In the meantime, other interesting developments have taken place that deserve being mentioned.
Olivia Tambou has launched a great blog, full of useful information, updates, alerts and… videos! Koen Lenaerts, Denys Simon, Robert Kovar, Melchior Wathelet and others are the subjects of very interesting interviews. If you still have not seen them, don’t miss any of them!
And there is more: a group of distinguished academics has launched an on-line publication dealing with EU Law: European Papers. It combines the format of a traditional journal with other means of on-line discussion, all of it available in its webpage. The first issue has excellent articles and insights by none others than Christian Joerges, Dimitry Kochenov, Christoph Hillion and Carol Harlow, among others.
And as the Brexit debate goes on, some very timely documents have been popping up from academia, governments, think tanks, law firms, etc. on the consequences of the UK’s potential withdrawal from the EU. One of my personal favorites is the UK’s report on withdrawal procedures and Article 50. The Brexit debate (and its referendum) is very damaging for the Union, but I must admit that it has become a source of fascinating discussion for EU and international lawyers.
There is a lot to read, so keep calm and enjoy (if you can)!