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!

Daniel