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The April Revolution for European Human Rights Law

April has been an important month for human rights law in Europe. Two events have taken place rather discretely, but with a momentous impact on the future of human rights protection in many European countries. The development is technical, very technical. But the consequences can be revolutionary for citizens, courts and lawyers working in this field.

Last week, France was the tenth signatory country to ratify Protocol 16 to the European Convention of Human Rights (ECHR). This obscure piece of news hardly found any echoes in the press or in the academic community. However, its consequences are far-reaching and, as of 1 August 2018, national supreme courts of the ratifying States (only ten so far) will be able to request advisory opinions from the European Court of Human Rights on the interpretation and application of the ECHR.

Early this month, Directive 2016/343 on presumption of innocence in criminal proceedings came fully into force, once the time-limit for incorporation into national law expired. This is an extraordinary piece of legislation that introduces what could be termed as a mini-code of human rights protection in criminal procedural law. It is the most far-reaching example of a harmonization of human rights standards in national judicial procedures to date, a legislative effort that, in addition, does not deny the crucial influence that the ECHR has exerted over the initiative.

Protocol 16 will allow the highest courts of its ratifying States to enter into a direct dialogue with the European Court of Human Rights, in a format that is traditional for EU law, but not so much for the ECHR. The highest courts will have the power to request a non-binding advisory opinion, but through a dialogue between judges and not by way of the direct review that Strasbourg has traditionally undergone when making use of its powers of review. Advisory opinions will allow high courts to profit from a friendlier contribution from Strasbourg, more focused on the interpretation of the Convention, rather than stating how right or wrong was the last national court to have a say in the case. Once the high courts realize that it is better to work in active cooperation rather than in passive resignation vis-à-vis Strasbourg, it is probable that advisory opinions will become a frequent source of judicial communication among European courts.

Directive 2016/343 is an extraordinary piece of legislation. Member States will be under EU supervision when their criminal courts rule on how the accused is to be treated in the course of the proceedings. The Directive deals with the treatment that public authorities give to suspects or the accused when being exposed in public, or when speaking publicly about the them. Rules on the burden of proof have been introduced, as well as rules on the right to remain silent. Specific provisions on the right to be present, and the conditions in which a person can be trialed in absentia are also a relevant part of the Directive. In sum, the basic rights of any individual in a criminal procedure have now been codified by EU law, irrespective of whether the case involves the application of EU rules or not. Every case in every Member State involving a criminal proceeding in which a physical person is a suspect or accused, is now under the scope of Directive 2016/343.

It’s not an exaggeration to say that, after April 2018, human rights law in Europe will be going through a revolution.

To start with, the European Court of Human Rights will feel the first symptoms of a typical Luxembourg syndrome. Having Supreme Courts knocking at your door will bring Strasbourg straight into the field of judicial diplomacy through judgments, something that the Court of Justice in Luxembourg has been used to for the past decades. But above all, Supreme Courts will have an incentive to communicate directly with Strasbourg, while parties will have a new argument in their applications and defenses, in search of an early opinion from Strasbourg that saves them from fighting a direct action later on, with uncertain chances of admissibility and/or success. The role of the ECHR in current litigation will assume a new dimension, becoming a novel instrument in the toolbox of national courts and practitioners. This could be revolutionary in the case of Constitutional Courts, which will find an inexcusable course of action to communicate with Strasbourg in a field in which they can hardly deny the importance of Council of Europe law: the protection of human rights.

The same development, but with an EU twist, will take place as a result of the full entry into force of Directive 2016/343. EU law will now become a crucial benchmark in criminal procedures when questions about human rights show up. And in contrast with Strasbourg case-law, EU law is directly effective and has primacy over national law and case-law. National courts, all courts, now have the power to set aside whatever standard the national criminal code provides, or the supreme or constitutional court has confirmed, as long as such standard is not in line with Directive 2016/343. Counsel for the accused will have a tremendously valuable new ally in Luxembourg, and a very useful tool as part of the defense strategy in the shape of the preliminary reference procedure.

However, what seem more striking to me is that, in the same way that Strasbourg will suffer the Luxembourg symptoms, the same will apply to the Court of Justice, but in the form of a Strasbourg headache. Directive 2016/343 explicitly states that the standards thereby provided are in line with the case-law of the European Court of Human Rights. In fact, a quick reading of the provisions of the Directive will immediately bring to one’s mind landmark decisions of the Strasbourg court. The Directive has introduced, by way of harmonization, a considerable part of the European Court of Human Rights’ jurisprudence. And it has done so unashamedly and in a transparent way, explicitly pointing at the relevance of the ECHR in its recitals. Autonomous interpretations of Directive 2016/343 will be difficult to make. The shadow of the ECHR in this Directive is all-embracing, in a way that will certainly condition the Court of Justice’s interpretation of it in the future.

As a result of this April revolution, national criminal courts will start looking into issues of human rights with the eyes of an EU Directive which codifies ECHR case-law under EU law, in cases that need no link whatsoever with EU law. In the meantime, supreme courts can start making requests for advisory opinions to the European Court of Human Rights, at times sacrificing a preliminary reference to Luxembourg, in the understanding that the Strasbourg court is a more specialized human rights court.

In criminal proceedings, the scene can be rather striking: a case raises a point of interpretation of Directive 2016/343, but in a specific issue that has been subject to specific attention in the case-law of the Strasbourg court. Because Directive 2016/343 is very explicit about the importance of the ECHR in the interpretation of its provisions, the national high court can well decide that there is no point in making a preliminary reference of interpretation on Directive 2016/343. It’s better to go straight to the main source: the ECHR and its supreme interpreter in Strasbourg. As a result of the advisory opinion, if the Strasbourg court finally rules that national law is not in line with the ECHR, despite the fact that the opinion is non-binding, the national high court can profit from the Directive in order to set aside the national provisions at stake. Through a novel synergy between EU law and ECHR law, national courts can make key questions to Strasbourg with new conventional instruments under Protocol 16, whilst profiting from the direct effect and primacy of EU law. A new and revolutionary way in which national courts, EU courts and the European Court of Human Rights interact in a cooperative and synchronized way will be born, in support of the individual and his or her human rights.

In contrast with the Court of Justice’s dark omens about the impact of Protocol 16, we could be facing an efficient new form of European judicial protection in the field of human rights, in which the different systems of judicial control interact with a common goal. Instead of putting each remedy in its isolated case, a synchronized interaction between direct effect, primacy, ECHR law and national remedies could provide the first signs of a truly European system of human rights protection.

If this is finally the outcome of April’s developments, then it is true that we are, indeed, before an April revolution for European human rights law.

The Strange (German) Case of Mr. Puigdemont’s European Arrest Warrant

The Court of Justice is being kept busy with European arrest warrants lately. First, the Irish courts wondered if they should enforce European arrest warrants from the UK in light of the imminent withdrawal of this country from the EU. Then another Irish court raised its concerns about the enforcement of arrest warrants coming from Poland, in the aftermath of a reform of the Polish judiciary that has put the country on the brink of an Article 7 TEU procedure. Last week, the high court of Schleswig-Holstein ruled on another tricky case by refusing to enforce an arrest warrant launched by the Spanish Supreme Court, requesting the surrender of Carles Puigdemont, Catalonia’s ill-fated former President, in hiding in Belgium since October 2017 in order to escape from the current criminal proceedings taking place in Spain against the instigators of the terrible secessionist acts that took place then.

Brexit, Illiberal democracies and now Catalonia. The European arrest warrant (EAW) is proving to be the laboratory of many of the EU’s current headaches, many of them resulting from a new type of techno-populism based on propaganda, lies, obscure finance and a call on the sacred will of “the people”. Brexit, Poland and Catalonia find their roots in an ill-conceived conception of democracy, in which the people speak, no matter under what circumstances (fake news, lies, on-line ballots, violent-driven pseudo-referendums) and once the people have spoken the Constitution is put on hold in order to give way to the will of the people. British politicians are terrified of questioning Brexit, even of suggesting a second referendum, because of the will of the people. Illiberal democracies like Poland and Hungary are drifting towards autocratic democracies thanks to the will of the people. Catalan authorities decided to repeal the Constitution, the Catalan Statute of Autonomy and any inconvenient judgment of the Spanish Constitutional Court, because of the will of the people.

The will of the people is the revolutionary new normal, with an ability to destroy all the valuable achievements that European democracies have earned since post-war times. It is thus unsurprising that the will of the people has put its eyes now on the EU itself. As an apéritif, the first victim might be the European arrest warrant.

Last week, the Oberlandesgericht of Schleswig-Hosltein shocked everybody in Spain (and elsewhere too) by refusing to surrender Mr. Puigdemont on the grounds of rebellion, following the European arrest warrant (EAW) issued by the Spanish Supreme Court on two counts (rebellion and embezzlement). In addition, the German court requested additional information from the Spanish Supreme Court on the other crime presumably committed by Mr. Puigdemont (embezzlement), in order to make a definitive decision on that point of the request.

The decision is astonishing on many grounds, and it is not a surprise that the Spanish Supreme Court and the Prosecutor’s office made it clear, shortly after, that once the final decision of the German court is rendered, the Spanish Court will make a reference to the Court of Justice.

There is an ongoing discussion in Spain on whether the Supreme Court can make such a reference, which, in my opinion, is a non-issue. The requesting court can always make a reference to the Court of Justice, even if the result is an indirect review of the decision of the executing judge. In the context of European judicial cooperation, disagreements between national courts must be resolved by the Court of Justice, as long as the discussion is based on a point of EU law. In this case, the Spanish Supreme Court has good reasons to disagree with the Oberlandesgericht’s interpretation of the EAW Framework Decision, a disagreement which is exclusively based on a question of interpretation of a rule of EU law which, eventually, must be solved by the Court of Justice.

What strikes me about the Puigdemont case is the euphoria and epic cries with which the Oberlandesgericht’s decision has been received by those most close to the Catalan independence movement. These voices have equated the decision to the House of Lords’ judgment in the Pinochet case, or to the US Supreme Court’s decision in Brown versus Board of Education, another example of the contribution of western courts to the defense of human rights.

Nothing is further from the truth.

The Oberlandesgericht’s decision is a flawed ruling that seriously undermines the EAW’s effectiveness, and I would even say its future survival. It is also a manifest example of mistrust between courts of Member States, the type of conduct that destroys the foundations of mutual recognition and judicial cooperation. The fact that the request is coming from a Member State’s highest court and it is being rejected by a regional court does not help in keeping the enthusiasm of Supreme Courts with the Area of Freedom, Security and Justice. Quite the contrary. And we all know that once the Supreme Courts of the Member States rebel against EU law, the countdown of the finale has begun.

First and foremost, there is a procedural flaw in the German court’s decision. In deciding on the provisional measures imposed on Mr. Puigdemont, the Oberlandesgericht rules ad limine that the request of surrender based on the offence of “rebellion” is inadmissible, because the conduct would not amount to a conviction in Germany. However, in Aranyosi and Caldararu (unquoted in the decision), the Court of Justice, sitting in Grand Chamber, clearly stated that when an executing judge has doubts that can lead to a refusal to enforce an EAW, it has a duty to request further information from the issuing judge (see Aranyosi and Caldararu, points 91 to 98). Despite the Court of Justice’s ruling, the Oberlandesgericht has decided unilaterally and ad limine, without giving the chance to the Spanish Supreme Court of enriching the German court’s understanding of the case, that Mr. Puigdemont cannot be surrendered on the grounds of the crime of “rebellion”. And this decision impedes the Spanish Supreme Court from putting Mr. Puigdmont on trial for this offence. The Oberlandesgericht has thus provoked, in a decision ruled in 48 hours and without full knowledge of the facts of the case, Mr. Puigdemont’s acquittal on this ground, which is the most serious of them all. Mr. Puigdemont cannot be put on trial in Spain now for that offence.

But above all, the decision provides a profound misunderstanding of the principle of double incrimination provided in Article 2(4) of the EAW´s Framework Decision. It is true that when an offence is not among those listed in Article 2(2), the enforcement judge must determine “whether the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described”. Thus, the Oberlandesgericht must appreciate if the conduct of Mr. Puigdemont constitutes an offence in Germany (in Germany, the equivalent to “rebellion” is the offence of “high treason”).

However, what the enforcement judge cannot do is go through a full review of the case and rule as if it was ruling on the substance of the case. This is what the Court of Justice has been debating lately in the cases of Grundza and Piotrowski (the latter in Grand Chamber, also ignored by the Oberladesgericht), coming to the conclusion that the review by the executing judge of the application of legal requirements under its domestic law must be made in abstracto and not in concreto. The executing judge must make sure that the legal requirements under its national law are complied with through an abstract reasoning, but not entering into the details of the specific case, for the simple fact that, otherwise, the executing judge replaces the role of the issuing judge. And it is the issuing judge the one that has the information, the knowledge and the closeness to the facts, witnesses and locations relevant for the criminal proceedings.

I recommend the reader to read the Oberlandesgericht’s ruling, because it is a perfect example of what an enforcement judge is not supposed to do when evaluating if the facts constitute an offence under its domestic law. The decision basically states that the “violence” used in the events of October 2017 did not put the State or the authority of the State at risk, and that the violence used was insufficient to question the State’s ability to impose order. The decision relies on a judgment of the German Supreme Court of the 1950’s, in which the violent protests opposing the enlargement of a runway of the Frankfurt airport were considered not to be sufficiently severe to undermine the State’s ability to impose order. The Oberlandesgericht states that this is an “almost identical case” to Mr. Puigdemont’s.

And thus, in 48 hours, ruling ad limine, without requesting further information from the Supreme Court, and on the grounds of a precedent based on an environmental protest of the 1950’s, Mr. Puigdemont has become acquitted of the most serious of the offences for which he would be put on trial before the Spanish Supreme Court.

The case is a good example of a flawed understanding of the Framework Decision and of the case-law of the Court of Justice, because it evidences how catastrophic this approach can be for the EAW as such. For the sake of argument, let’s suppose that Mr. X has a criminal plan that will take place, for example, in France. The first thing he must do is to adapt the plan and his conducts to one of the offences that are not enumerated in the list of Article 2(2) of the Framework Decision. Immediately after committing the offence, Mr. X moves to a nearby Schengen Member State, which is quite an easy thing to do, considering that Schengen provides an area of free movement with no frontier controls. It is important that Mr. X moves to a Schengen country in which the offence is slightly different to the offence under French law. And now, if Mr. X is requested to be surrendered by a French judge, he can be quite assured that nothing of the kind will happen. And if he is lucky, the executing judge will act as quickly as the Oberlandesgericht and in only 48 hours, after making a ruling ad limine on the substance of the case with no knowledge of the details nor testimony of the prosecutor, it will have acquitted Mr. X. A new category of free movement of presumed criminals, benefitting from the EAW and Schengen, would have emerged, to the surprise and joy of criminals throughout the EU (and beyond). Once “acquitted” by the executing judge, the French courts cannot put Mr. X on trial for that offence. Mr. X is now free to move, thanks to Schengen, and with the help of the EAW and a law-motivated (but naïve) executing judge.

There are no two identical offences between Member States, all of them have their own nuances, mostly as a result of the case-law of the courts of each Member State. The drafters of the EAW Framework Decision were well aware of this, and that is why they insisted in Article 2(4) that the acts have to constitute an offence, “whatever the constituent elements or however it is described”. This is a way to remind the executing judge that it cannot go into a detailed analysis of the offence in itself, nor of the facts of the case. Otherwise the EAW would become useless, or it would produce an anomalous substitution of roles by turning the executing judge into the judge of the case.

The Court of Justice, sitting in Grand Chamber, has also made this point quite clear when ruling on one of the grounds of non-enforcement of the EAW: that the person concerned is under sixteen years of age. In the case of Piotrowski, when an executing judge questioned if that ground could be applied to other persons older that sixteen, but considered to be in an equivalent position due to their specific psychological features in the law of the Member State of the executing judge, the Court of Justice argued as follows:

[…] as an exception to the general rule that a European arrest warrant must be executed, the ground for mandatory non-execution provided for in Article 3(3) of Framework Decision 2002/584 cannot be interpreted as enabling the executing judicial authority to refuse to give effect to such a warrant on the basis of an analysis for which no express provision is made in that article or in any other rule of that framework decision, such as the rule which calls for a determination of whether the additional conditions relating to an assessment based on the circumstances of the individual, to which the prosecution and conviction of a minor are specifically subject under the law of the executing Member State, are met in the present case.

[…] such a determination may cover matters which are, as in the main proceedings, subjective, such as the individual characteristics of the minor concerned and of his family and associates, and his level of maturity, or objective, such as reoffending or whether youth protection measures have previously been adopted, which would in fact amount to a substantive re-examination of the analysis previously conducted in connection with the judicial decision adopted in the issuing Member State, which forms the basis of the European arrest warrant. As the Advocate General observed in point 56 of his Opinion, such a re-examination would infringe and render ineffective the principle of mutual recognition, which implies that there is mutual trust as to the fact that each Member State accepts the application of the criminal law in force in the other Member States, even though the implementation of its own national law might produce a different outcome, and does not therefore allow the executing judicial authority to substitute its own assessment of the criminal responsibility of the minor who is the subject of a European arrest warrant for that previously carried out in the issuing Member State in connection with the judicial decision on which the warrant is based.

It seems clear to me that the Court of Justice is very much worried about the enlargement of powers of executing judges, and that includes, of course, the powers to determine that certain facts “constitute an offence” in the executing Member State. If the executing judge is to undergo a detailed analysis of the facts of the case without having sufficient knowledge of the relevant facts, this, in the words of the Court of Justice (and AG Bot, who is well informed on these issues) would “allow [it] to substitute its own assessment […] for that previously carried out in the issuing Member State in connection with the judicial on which the warrant is based”.

It seems obvious to me that the Oberlandesgericht is not in a position to rule on the substance of the case, and the best proof of this is the way in which it compares Mr. Puigdemont with the leader of an environmental protest in the Frankfurt airport.

Mr Puigdemont was the President of an Autonomous Community in Spain, with full powers and command over all the departments of the regional administration, including the Police, which, in Catalonia, is fully autonomous and replaces in its territory the National Police (this only happens in the Basque Country and Catalonia). After voting in the Catalan Parliament a Referendum Bill that precluded the opposition of submitting amendments or having a debate in the Catalan Parliament, and after disregarding the judgments of the Constitutional Court declaring the Referendum Act (once voted) unconstitutional, Mr. Puigdemont called a referendum on 1 October 2017. This referendum had no electoral guarantees and was facilitated by the inaction of the Catalan Police, under the orders of the Catalan Minister of the Interior, following instructions of the Catalan Government (chaired by Mr. Puigdemont). A few days before the referendum took place, the Guardia Civil (after the High Court of Catalonia decided not to rely on the Catalan Police’s authority for obvious reasons) and the High Court’s staff were mass-assaulted while carrying a search in the Catalan Ministry of the Economy, in a pursuit for documents that proved that the referendum had been financed with public funds (another offence, embezzlement, on which the Oberlandesgericht has been requested to enforce the EAW).  Special forces had to evacuate the agents of the Guardia Civil and the High Court through the roof-tops of the Ministry’s premises, while demonstrators vandalized the vehicles of the Guardia Civil parked outside the building. Many of the remains of these vehicles were found several hours later in Barcelona’s cemetery of Montjuïc (a nice final message from the demonstrators to the Guardia Civil).

A week later, on the day of the so-called referendum, police charges of the Guardia Civil took place, with the result of the awful images we all saw that day in the news. The Catalan Police refused to close down the electoral colleges (despite the Constitutional Court’s judgment ruling that the referendum was illegal, followed by an instruction of the High Court of Catalonia ordering all Police authorities to prevent it from happening) and the Guardia Civil was left all alone to enforce it. As a result of the Guardia Civil’s action, four civilians were hospitalized (one of them suffered a heart attack). In contrast, four-hundred and thirty-one police officers suffered injuries. Indeed, four civilians were hospitalized, but international media (the BBC and the Washington Post, among others) have confirmed that there was a spectacular use of fake news on social media, which manipulated and magnified the violence actually exerted on that day by the Guardia Civil.

On 10 October 2017, the Catalan Parliament, with Mr. Puigdemont among its leading members, declared the independence of Catalonia, relying on the “will of the people” after the results of the so-called referendum. Shortly before, Catalonia’s main credit institutions, CaixaBank and Banco de Sabadell, changed seats outside of Catalonia (to Valencia and Alicante, respectively), to calm investor and depositor unrest. Since late September until December 2017, a total of 3217 companies have changed seats from Catalonia to other parts of Spain. The Bank of Spain has confirmed in March 2018 that, since October 2017, 31.400 million euros in deposit accounts have fled from credit institution in Catalan branches.

These facts prove that the perception in Spain and in Catalonia was not that Mr. Puigdemont was leading a peaceful movement, similar to an environmental protest. As Joseph Weiler has recently argued, Mr. Puigdemont is no Nelson Mandela nor a Gandhi, quite the contrary. Mr. Puigdemont was the leader of a well-orchestrated political movement of break-up of a State, that has put a Member State of the EU in an untenable position, close to the brink of secession, with the assistance of the entire Catalan administrative machinery (including its Police and a well-dosed budget), in an effort to divert the attention of its voters from their real concerns (unemployment, austerity, corruption), of which the Catalan government is, of course, co-responsible.

A majority of Catalans see Mr. Puigdemont in the same way (there is no pro-independence majority in Catalonia, it’s only thanks to the electoral rules that there is a majority of pro-independence seats in the Catalan Parliament). And I know of no fellow Spaniard outside of Catalonia that considers Mr. Puigdemont a peaceful protester. It is also very telling that the majority of Basque nationalists disagree completely with the way in which Mr. Puigdemont handled the events in Catalonia.

But the Oberlandesgericht of Schleswig-Holstein did not see it this way, ruling in 48 hours, inadmitting the EAW ad limine, comparing Mr. Puigdemont with an environmental protester, irrespective of  whatever other facts might have been relevant and which the Spanish Supreme Court could have provided, and ignoring the case-law of the Court of Justice of the past fifteen years.

The decision is good evidence that a strict scrutiny of the principle of double incrimination when enforcing EAWs is a questionable practice. The Spanish Supreme Court has now the perfect excuse to cry foul and become an EAW skeptic and, who knows, maybe a euro-skeptic court thereafter. The judge of the Spanish Supreme Court that issued the EAW is currently under Police protection and his summer house in Catalonia was vandalized two weeks ago, provoking a reaction from the European Association of Judges in support of the judge. Seeing Mr. Puigdemont (the leader of the revolt) turned into the heroic victim, and the law-enforing judge as the villain,  with the help of a regional court of another Member State, are the kind of situations that turn a Court, particularly a Supreme Court, into a believer or a disbeliever in integration.

Or it can rely on the tools of the Treaty and make a reference to the Court of Justice, so that the Luxembourg court fixes this terrible and potentially devastating mistake.

On Constitutional Mode

2018 has begun with a constitutional barrage from the Court of Justice. The pace of ground-breaking judgments on crucial points of principle is stunning. And it is very much appreciated that all these decisions are coming from the Grand Chamber, not from modest three judge-chambers with no Opinion of the AG.

The Lenaerts presidency seems to be in full mode now, with a constant pace of relevant decisions in Grand Chamber, important institutional developments (an enlarging General Court and no transfer of references for now) and a big increase in minor cases being handled by chambers of three judges. It seems as if the priorities have been well set at last: big cases must be granted due attention in Grand Chamber, complex cases with no issues of principle should be sent to chambers of five judges. The rest, whether they may be modest or not, should be left in the hands of three-judge chambers.

This is proving to be working so far. The Court is producing a vast amount of obscure decisions in highly technical areas, at the same time that it is managing an ambitious docket at the Grand Chamber with a considerable degree of quality in its reasoning. Only time will tell if this will last and if it is a strategic success story, or whether it is only a coincidence. For the time being, it looks more like a cleverly handled operation from the leadership of the Court.

A quick glimpse into the past two months provides an impressive insight into a Court that is unashemedly picking up the reins of EU constitutional principle-setting.

First, the Court delivered an apparently technical but hugely relevant judgment in the case of X NV, in which it was confronted with a devilish issue unsolved by the EU legislature: the scope of application of freedom of establishment rules in the Services Directive. This might not look like rocket science, but it’s a huge development in practical terms: to say that freedom of establishment rules apply in purely internal situations opens up Pandora’s box for many Member States with decentralized administrations, at the same time that it indirectly expands the scope of application of establishment rules in the Treaties by way of a Directive. And that is exactly what the Court did, to declare that the freedom of establishment provisions in the Services Directive apply to purely internal situations. According to the Court, that’s what the legislature wanted. But in all honesty, the legislature was very opaque about the issue, particularly after the social backlash of the Bolkestein Directive. Now the Court is willing to take the big step (which had been referred to the Court in the past, but which it cleverly rejected) and grant the Services Directive a phenomenal impact on Member States.

Shortly after, the Court gave a major ruling on the judicial review of EU soft law, and on the limits to the use of soft law instruments by EU Institutions, particularly the Commission. In Belgium/Commission the Court had to decide on the ouster clause provided in Article 263 TFEU, which excludes the review of Recommendations from actions of annulment. However, the Court stated that in exceptional circumstances, if a Recommendation can be considered to deploy legal effects, then the criteria of reviewability must be based on substance, not form, and the Union courts will have jurisdiction to hear the case. Thus, Recommendations can be reviewed in an action of annulment, although, in this particular case, the Court was cautious (in contrast with the AG’s excellent Opinion, which proposed an overall reasessment of the issue) and decided that the challenged Recommendation, although it followed a legislative initiative and it included several proposals that had been rejected in the course of the legislative debates, did not produce any legal effects. In any case, the stick and carrot strategy is quite clear and EU Institutions have been warned through the Court’s typically slowly-paced and incremental approach towards principle: soft law is all very well, but as long as it does not distort the legislative procedure and, consequently, the sources of EU law.

And then came the second round of the Western Sahara saga, in which the Court avoided the trickiest issue, but inevitably had to confront the point of direct review, by way of references of validity, of international agreements. The Court replied in the positive, opening the door to the judicial review of international agreements (through the Institution’s decision to enter into the agreement) by way of Article 267 TFEU. AG Wathelet, who considered that the international rules at stake were applicable to the Western Sahara and thus scrutinized them in light of substantive rules of EU and international law, proposed a bold interpretation of the jurisdiction of the Court when reviewing international agreements in light of international law. It’s unclear how far has the Court gone precisely this time, but it is certain that the principle has been laid down.

An apparently obscure case about judge’s remunerations turned into a huge constitutional dispute about judicial independence, in which the Court was happy to enter into. For several years, the Court was reluctant to rule on references about austerity measures in Member States subject to financial assistance programmes. However, in Associação Sindical dos Juízes Portugueses the Court went all the way and provided an intriguing judgment that is certainly not mostly about Portuguese judges, but rather about Polish and Hungarian judges. For the very first time, the Court stated that Article 19 TEU, as a self-standing rule, is a relevant parameter of review. And of all the principles enshrined in Article 19 TEU, the Court focused on independence, which, according to the Court, is not a principle only relevant for Union courts, but also for national courts. Article 19 TEU has thus been transformed into a crucial rule on the judiciary of the Union, understood in a federal sense, as a judiciary of the federation and its States. And the guarantor of the judiciary, the ultimate guarantor, is the Court of Justice. Quite a development indeed.

If you were already entertained, the best is still to come, because today, in Achmea, the Court has gone full circle with its notion of autonomy and has boldly stated that intra-EU bilateral investment treaty arbitration arrangements are in breach of Articles 267 TFEU and 344 TFEU. But in fact, if you read closely (particularly paragraph 59) the reader will notice that the case is not about preliminary references or sincere cooperation, but about the autonomy of EU law. Investment arbitration arrangements among Member States are in breach of the autonomy of EU law. The Court thus shuts down the chance of operating with BITs in intra-EU contexts, which is reasonable in light of developments in EU law, but not so much if the alternative left to an understaking is to rely on national courts’ good will to make references to Luxembourg, which is not an obvious scenario. In addition, the Commission’s selectiveness in bringing infringements against Member States makes it difficult for undertakings to have their cases heard in court, particularly when those cases raise points of EU law. But the principle is clear: no meddling with the jurisdiction of the Court, or otherwise autonomy will bite fiercely.

If the Brexit negotiators had any doubts as to how far the Court is willing to go in protecting the autonomy of EU law, Achmea is a good hint of how a future dispute settlement arrangement between the EU and the UK should not look like.

The trend is impressive. The Court of Justice has picked up the reins of the constitutional agenda, asserting its power as an authoritative interpreter of constitutional principle, willing to protect its jurisdiction and the autonomy of EU law vis-à-vis international courts, Member States and rogue Parliaments and governments interfering with the independence of national courts. It is also becoming a guarantor of the democratic process in the EU, standing as a willing overseer of the Institution’s actions with suspiciously ambiguous instruments of soft law that might distort the result of a legislative debate. If anyone wondered about the Court of Justice’s authority after its judgment in M.A.S., in which it bowed to the Italian Constitutional Court’s critique of past case-law, the early months of 2018 proves that the Luxembourg court is more than willing to pick a fight for the sake of constitutional principle.

So far, the only players who have been spared from the Court’s barrage are national Constitutional Courts. That might explain the long-term strategy behind M.A.S.. It appears as if the Court of Justice is choosing its allies carefully. And in light of the recent developments in Italy, particularly this weekend, keeping the Italian Constitutional Court on board might be a clever move, in case another round of EU constitutional principles are needed against the forces of populism.

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.