Post-Brexit Britain, or how to take back some control by losing all of it

Now that there is some clarity about the kind of Brexit deal the UK Government has in mind, it is shocking how such a simple message can be so misread. Theresa May announced that Britain will go for a hard Brexit in 2019, prioritizing immigration control over access to the single market. However, in order to avoid the absolute mess that a hard Brexit would cause, Mrs. May has called for a simple and straight-forward Great Repeal Act that will incorporate all EU Law into British Law, allowing the Government to adjust the provisions of this “repatriated EU Law” in the way it considers appropriate. Britain will be an independent nation again after digesting sixteen tons of acquis communautaire in one single bite.

This might seem like a clever trick, especially if it comes wrapped under the name of The Great Repeal Act, but I wonder if this is, in any possible way, in the interest of an independent post-Brexit Britain, or coherent with the wishes of those who loudly voted to leave the EU.

First, there is a democratic concern: a Parliamentary Act will introduce the entirety of EU Law into British Law, but it will be up to Government to introduce the appropriate amendments. In fact, whatever role is finally assigned to Parliament will be secondary, because it lacks the means to implement such a titanic task. Only Government and the Whitehall machinery have the resources to undertake what is probably the most complex process of rule incorporation in the history of European law. We are not speaking of an acquis that needs adjusting into a new Member State. This is different: it is an acquis that is already a part of the domestic legal system, but that it must be completely reshaped in such a way that keeps British law in line with its European partners, but also different enough to prove that it is deciding on its own. Thousands of Directives and Regulations will be redrafted or tweaked here and there, with the purpose of proving that Britain is out of the block, but that it can also be inside if it suits its interests. This will all be done by Government, with a very secondary performance of Parliament. If this is “getting back control” for the people of Britain, it is hardly an improvement.

Once EU Law has become more law of the land than ever, the United Kingdom’s companies, consumers and authorities will carry on with their daily lives and, of course, they will keep relying on the same rules that they have been applying all these years. It is probable that the review process will take a long time, and even when it is done it will leave millions of EU rules untouched, now incorporated into British Law. For years and decades to come, Britain will be a country infested by EU rules in every corner, but in a rather nasty and dysfunctional way.

For example, Theresa May has promised not to touch worker’s rights as a result of Brexit. Therefore, it is to be expected that the acquired rights Directive will carry on having a strong influence on TUPE regulations. But let’s just imagine that the Court of Justice decides to change its mind about its interpretation of some of the provisions of the Directive, overruling past case-law that had been strongly criticized in some Member States, including Britain (for example, the case-law in the judgment of Alemo Herron). Once Member States have guidance about the scope of the overruling and have amended their implementing legislation, employers and workers will start taking note of the change. But of course, workers in post-Brexit Britain, who would be “liberated” of the past binding interpretation of the Court of Justice, will happen to be trapped in… The Great Repeal Act! Of course British courts could decide to follow the Court of Justice’s new case law, but they would be accused of becoming prisoners of the hated Luxembourg court. Or they could stay put and simply tell workers that they have been extricated from European rule, so tough luck. Workers would look at Theresa May remembering her words on 2 October 2016 and feel betrayed. But if British courts end up doing what they probably would (because, in fact, Luxembourg judgments happen to be quite reasonable in 99% of the cases), Brexiteers would be looking with fierce eyes at Theresa May, shouting treason.

It is even more terrifying to think about the thousands of amendments that EU law goes through every day. Post-Brexit Britain will have incorporated EU Law into domestic law in order to provide certainty to companies and investors for some time. However, if certainty is what Britain wants to offer, it will also have to keep up with events in Brussels and carry on adjusting and amending the “repatriated EU Law”, or otherwise investors and companies will start feeling that Post-Brexit Britain is just a mess of a country, that they were lied to, and decide that they are better off in Ireland or in the Netherlands instead. Some kind of automatic incorporation mechanism for future amendments would have to be introduced in British Law. The Great Repeal Act would then become a magnificent machine of incorporation of new EU rules coming from Brussels, amending the British rule-book almost every day.

It will be easy to sweep the acquis inside the British legal system in one go, but keeping it updated on a daily basis will be a challenge, if not a nightmare.

These are just two simple examples of the challenges in Theresa May’s Post-Brexit Britain, but it all gets even better when looking at the influence of Britain and Britain’s officials in the entire process. If the Court of Justice changes its mind or it simply decides to interpret EU Law (as incorporated into British Law) in whatever way it considers appropriate, it will do so in the absence of British Judges and Advocates General in Luxembourg, who have been extremely influential in the past, as long as they had a seat in the Court. But not anymore in Post-Brexit Britain.

The same would apply to the amendments of EU rules agreed by the Council, the European Parliament or the Commission. In its effort to keep stability and certainty during the transition, Britain will carry on swallowing EU Law in order to keep up with the rules it has incorporated domestically, but with no ability whatsoever to influence the content of such rules. No Commissioner, no Permanent Representative, no MEPs, nothing. The Great Repeal Act will facilitate the continuous arrival of EU rules amending pre-Brexit EU Law for the sake of certainty and stability. If the British people wanted back control… what kind of control is this?

Of course it will be said that this is just a temporary situation, only a technical patchwork to make things work while the UK and the EU find a reasonable agreement.

Think twice.

If hard Brexit is what Her Majesty’s Government wants, a hard Brexit it will get. The EU will sign off an Article 50 agreement letting Britain go, and any future bilateral agreements will be conditioned on Britain’s compliance with… EU rules! Just look at Switzerland, where EU Law is the law of the land as a result of bilateral agreements that condition their application to the compliance of a never-ending list of EU acts. Or take a glance at other nations such as San Marino or Monaco, that, in order to have a monetary agreement with the EU, have paid a heavy price in the shape of… compliance of EU rules. There is hardly any need to remind the reader of the cases of Norway or Iceland, where EU Law is a mammoth within the domestic legal system. Whatever our non-EU European partners do, no matter how big or small, they are surrounded, if not inundated, by EU Law.

Post-Brexit Britain will live with EU Law for many years to come, but with the disastrous outcome of losing the right to have a say in any of it. The Court of Justice will carry on having an enormous influence in the way EU Law is applied inside and outside the Union, and Britain will simply have to nod. The legislative and executive rule-making machinery will carry on in Brussels, and Britain will have to keep up with it. The Brexiteers will make sure that this is all done in a discreet and cleverly spinned way, far from the tabloids and from Eurosceptic hysteria. Having left Europe, British nationalism will find another punching-bag to strike and carry on with its business. But in the meantime, EU Law will be present, from north to south and east to west.

And if somebody complains, the heroes of Brexit will say that Britain is not being forced to do any of this. Britain is deciding to enforce judgments of the Court of Justice or adjust to EU rules on its own right and as an independent nation, because it has taken back control and it has made a huge success of it.

So on Brexit day the United Kingdom will get back control, only to lose it, in the worst possible way, as every day goes by. Quite an accomplishment indeed.

The Price of Borrowing EU Institutions, and the Price of Being Borrowed – A short comment on Ledra Advertising

The Court’s judgments in the cases of Ledra Advertising and Mallis are a huge step forward in the EU’s process of construing a coherent set of rules for EMU. The outcome might be upsetting for some, but it is good to have (at last) some certainty over crucial legal issues that have been in a limbo throughout the rough years of the crisis. Ledra Advertising and Mallis might not come to the perfect solution, but at least there is now a solution to hold on to.

In a nutshell, the Court, sitting in Grand Chamber, has stated that Eurogroup decisions are not subject to judicial review by way of an action of annulment. However, the Court adds that Commission and ECB action in the context of financial assistance programmes must comply with EU Law, including, of course, the Charter of Fundamental Rights. Therefore, specific actions of the Commission and of the ECB in the context of the European Stability Mechanism’s financial assistance programmes can result, if unlawful, in damages actions before the Union’s courts. This is a severe reversal of the General Court’s decision in first instance, and also a departure from the solution proposed by Advocate General Wahl.

To declare that the Commission is liable under EU Law for its actions outside the scope of the Union is quite remarkable. However, the alternatives were so worrisome that it seems as if the Court has chosen the least bad choice among an array of very bad ones. To suggest that an applicant can sue Member States individually for the ESM’s actions is not a very realistic scenario. This would also imply that the EU’s involvement in the financial assistance programmes had taken place in a legal vacuum, non-accountable before any court of law and granting EU Institutions a freedom to comply or not with the rules in the terms they considered most appropriate.

In Ledra Advertising, the Court states that EU Institutions, and in particular the Commission, were bound by EU Law when participating in ESM financial assistance programmes. That includes the Charter, of course. As a result of such duty, the Commission, if it considered that a draft Memorandum of Understanding was in breach of fundamental rights, had an obligation not to sign it. Therefore, the Commission can be liable for its activity, but also its inactivity in the context of financial assistance programmes. The judgment thus puts an end to a certain ambiguity in the practice of the Institution’s actions in non-EU contexts, which now comes full-circle under the scope of EU Law.

But many questions still remain. The Court is quite harsh when it declares that the Institutions are bound by the Charter, even if they are acting beyond the powers of the Union, but it also refreshes its case-law in Pringle, according to which Member States are not implementing EU Law in such contexts. Therefore, in the course of a financial assistance programme EU Institutions must comply with the Charter, but Member States do not.

Also, the way in which the Court has stated that Eurogroup Declarations are not reviewable acts makes it quite difficult to attack the Institution’s activity in actions of annulment. Therefore, the natural course of action will be damages actions, which is a complex route, a genuine minefield that hardly any litigants manage to succeed in. In fact, the Court goes into the substance in Ledra Advertising and dismisses the plaintiff’s action on the grounds that there was no violation of the Charter by the Commission. The essential content of the fundamental right to property of the applicants had not been breached, and therefore, in the absence of a manifest breach, no liability was declared by the Court. The balance is quite obvious: the Union is potentially liable for the actions of its Institutions outside the Union’s competence, but the standard of illegality that will be demanded from the applicant will be high (as it has always been).

Applicants who have suffered the results of strict conditionality now have the doors wide open to the Luxembourg courts, but they should get ready for a very rough ride.

Brexit or the art of “doing a Greenland”

The future looks rather grim for the United Kingdom at the current time. Life outside the EU will be tough and lonely, with hardly any of the so-called “models” being a real option: the EEA route is way too integrationist, the Swiss case does not allow immigration quotas, the Turkish model is too modest, and life under the WTO alone is just not good enough for a country the size of the UK. Furthermore, the EU made it clear after the referendum, in the first meeting of the 27-member European Council, that any agreement on market access shall include all four freedoms. No market access à la carte, and thus no market access if there is no free movement of workers. European leaders are quite in line on this point, and European voters, according to a recent YouGov poll, support their government’s tough stance.

The mess in which the UK has put itself into is damaging for all, but above all for the UK. The country had (and still has) the best of both worlds as a member of the EU: unbridled access to the internal market, voice in the negotiating room, influence among European nations, influence abroad, no duty to join the euro, no Schengen, an opt-out from judicial and police cooperation in civil and criminal affairs, and even a nice rebate after its budget contributions.

But that is all over now. And indeed, I think Theresa May is right when she says that “Brexit means Brexit”. In the future, the UK will abandon the status that it holds today and we should start assuming that. And the sooner the better.

Of course, putting an end to the status quo doesn’t mean that the UK must extricate itself entirely from the EU. In fact, I cannot imagine the UK, with its army of hired and highly competent advisors and negotiators, reaching a Norway-minus, a Swiss, a Turkish or an ad hoc agreement with the EU, leaving the country in a worse position than the one it holds today. It is simply not going to happen. The UK will strike a deal the moment it assumes that the deal is as good or even better that the one it has today. But how on earth are they going to get away with that?

My opinion is that we will certainly see the UK leave the EU as it is today, only to transform itself into a new kind of Member State. The UK could achieve this by “doing a Greenland”, but on a massive scale.

Greenland, although a part of Denmark with a special constitutional status, stopped being a territory of the European Communities in 1985. In fact, the trick was to change its status from an outermost region under Danish jurisdiction into an overseas territory. As is known, the EU Treaties allow some States with close ties with EU Member States, as well as some territories of EU Member States, to stand outside the territorial scope of application of the Treaties, but holding a special association status with the EU that grants them special rights of access to the internal market. These are the so-called Overseas Countries and Territories.

One of the trickiest challenges the UK will face in the following years is how to handle Brexit and keep the country together. Scotland and Gibraltar voted overwhelmingly in favour of remaining in the EU, whilst Northern Ireland  delivered a firm remain vote as well. Making Brexit come true and keeping Britain in one piece will be no easy task.

That is exactly why “doing a Greenland” would be the UK’s best choice.

The United Kingdom could still be a member of the EU, but only after England and Wales withdraw from the territory of the EU, leaving Scotland, Northern Ireland and Gibraltar as “territories of the EU”. England and Wales would no longer be a part of the EU, but the Treaties could be modestly reformed, as they recently were for Mayotte, in order to embrace both regions as “overseas territories”, with total autonomy and freedom to do their own business and act accordingly. In fact, the Treaties could be minimally reformed to grant England and Wales a special status among the overseas countries and territories, being that the subject of upcoming negotiations with the EU. Under such negotiations, England and Wales could strike a reasonable deal on free movement of workers, and, as is the case of British OCTs, EU law would not be applied in their territory, unless the EU and the UK agreed on incorporating specific EU acts on a case-by-case basis. There would be no jurisdiction of the Court of Justice, no jurisdiction of the European Commission, no risk of being swallowed or bullyied by Eurozone members in Council meetings, and full control of most areas of policy, including some that had been fully transferred to the EU, such as the external commercial policy.

This outcome may sound preposterous, but in fact, considering the mess in which the UK has put itself and the EU in, it’s a rather good solution for all parties involved.

First, the EU keeps Britain as a Member State, at least part of it, and avoids the symbolic hit of a withdrawal of a Member State. Article 50 TEU would never be applied and it would remain as what it always was supposed to be: a nice symbolic provision never to be implemented.

Second, the UK manages to be in the internal market at its own pace, at different speeds and under a much better negotiating position: no two-year time-limit under Article 50 TEU, no tragic dilemmas, no threat of being thrown out of the EU if negotiations fail, and above all, no unbridled free movement of workers and no contributions to the EU budget, unless strictly necessary.

Third, this option would keep Scotland, Northern Ireland and Gibraltar exactly where they stand today, intact and untouched in their European-ness, whatever that might mean. In fact, this option would empower the three territories in their affairs in Brussels, for it would be up to them, not England nor Wales, to be in charge of negotiating with a single voice in the Council.

Fourth, this is a more palatable option for EU Member States individually considered, such as Spain, Ireland or even Germany. Spain prefers to see Scotland in the EU as a part of the UK, rather than as an independent State. So does France. In the case of Ireland, the idea of shutting the border in Northern Ireland and stopping trade with the UK is politically and economically terrifying to say the least. For Germany, keeping the UK as a reliable and free-movement-friendly Member State, smaller in size, but big enough to have a say and influence in Brussels, is a better option than having it gone out the door entirely.

Of course this option would require radical constitutional change in the UK. Devolution would have to go much deeper than it is today, the representation of the UK in the EU and in the international community would be radically reshaped, and Scotland, Northern Ireland and Gibraltar would have to find an arrangement to manage their common interests in the EU. It sounds radical indeed, but definitely less radical than breaking the United Kingdom apart.

And finally, the democratic argument: if Brexit means Brexit, “doing a Greenland” does not appear to be exactly in line with Brexit, doesn’t it? After all, the UK would still remain a Member State of the EU, although only partially. However, “doing a Greenland” is probably the most coherent response to Brexit, inasmuch it keeps the territories of the UK that voted “leave” outside the EU, with vast freedom of choice, at the same time it keeps inside the EU those territories that clearly expressed a desire to be a part of Europe. “Doing a Greenland” is the most articulate way to respond exactly to what the British people said: some of them wanted to stay, some of them wanted to leave. In some territories, the majority wanted to stay. In other territories, the majority voted leave. Instead of breaking up the UK, why not put a foot outside the EU for those who want “out”, and a foot inside for those want “in”?

If Brexit means Brexit, this is as close as it gets to a genuine yet successful Brexit. And a success is what Theresa May has promised to make of Brexit. “Doing a Greenland” could be the best route towards success, coherent with the mandate of the British people and, above all, a means to avoid complete, utter and irreparable catastrophe for all.







Inter alia…..

This blog has been very inactive lately and I apologize for that. The Court has given so many excuses to post on interesting judgments and opinions, that it is difficult to choose where to start. There are fascinating opinions concerning the EU’s scope of action when acting in unconventional domains, such as state aid rules as applied in the context of bailed-out banks in the eurozone (Kotnik), EFSP measures that are not “restrictive” but with clearly limitative effects (H), or the Commission’s and the ECB’s liability prior and during the Cypriot bail-ins (Ledra Advertising and Mallis). In the past difficult years the EU has been moving in extremely blurry domains, and now we are beginning to see the practical consequences for individuals and undertakings. The overall outcome is not always very inviting, I must say.

Other decisions of the Court have been more uplifting. Aranyosi and Caldadaru is a remarkable judgment that marks a shift in the Court’s traditionally hard stance on mutual recognition. In line with the precedent in N.S., the Court has introduced a very important proviso to mutual recognition in cases where there might have been a breach of Article 2 of the Charter in the issuing Member State. The constitutional courts that questioned the Court’s commitment to fundamental rights in harmonized areas subject to mutual recognition mechanisms, have good reasons to think twice after the Grand Chamber’s judgment in Aranyosi and Caldararu.

In PFE, the Court rendered a very important decision for the preliminary reference procedure and for the Court’s relationship with national courts. When asked about the duty of a chamber of the Italian Supreme Court to refer a case to the Plenary of the Supreme Court in order to overrule a previous decision, the Court stated that such a duty is in breach of Article 267 TFEU: if the chamber is certain that the Plenary got it wrong in the past, nothing should preclude it from making a reference to the Court in order to confirm the chamber’s assessment. For the first time, the Court has applied Article 267 TFEU to the internal arrangements of collegiate courts in Member States, going well beyond the typical scenarios in which national procedural rules come into conflict with the duty/faculty to make a preliminary reference.

In the meantime, other interesting developments have taken place that deserve being mentioned.

Olivia Tambou has launched a great blog, full of useful information, updates, alerts and… videos! Koen Lenaerts, Denys Simon, Robert Kovar, Melchior Wathelet and others are the subjects of very interesting interviews. If you still have not seen them, don’t miss any of them!

And there is more: a group of distinguished academics has launched an on-line publication dealing with EU Law: European Papers. It combines the format of a traditional journal with other means of on-line discussion, all of it available in its webpage. The first issue has excellent articles and insights by none others than Christian Joerges, Dimitry Kochenov, Christoph Hillion and Carol Harlow, among others.

And as the Brexit debate goes on, some very timely documents have been popping up from academia, governments, think tanks, law firms, etc. on the consequences of the UK’s potential withdrawal from the EU. One of my personal favorites is the UK’s report on withdrawal procedures and Article 50. The Brexit debate (and its referendum) is very damaging for the Union, but I must admit that it has become a source of fascinating discussion for EU and international lawyers.

There is a lot to read, so keep calm and enjoy (if you can)!

EU fundamental rights as a source of integration or disintegration?

A few days ago I was invited to give the Lord Slynn Memorial Lecture at Charles University, Prague, hosted by the extraordinarily clever and hyperactive members of The Common Law Society. As some of you may know, The Common Law Society is a Prague-based student organisation, responsible for the organisation, inter alia, of the View From A Mountain Summer School, one of the leading summer courses on EU Law currently on offer. I very much admire the motivation, the determination and the astuteness of its members, some of them very young Law students, all of them extraordinary.

Having been given the chance to speak about fundamental rights in the EU gave me a good reason to think about the current state of fundamental rights protection and the role of EU Law. Furthermore, the fact that I was speaking in Prague, the capital of a Member State of the Visegrad Group, gave me even better reasons to reflect critically and with care about the Union and the current developments taking place in the eastern borders of the EU.

These are, very briefly, the main arguments I introduced in the course of the lecture.

In “What is the What”, Dave Eggers tells the incredible story of a young member of a Sudanese tribe, the Dinka. According to the founding myth of the Dinka, God gave the first Dinka (the monyjang) a choice between a cow or “the What”, an unknown. Of course the Dinka chose the cow, for “the first Dinka man and woman knew that they would live in peace with the cattle, and that if they helped the cattle eat and drink, the cattle would give man their mill, would multiply every year and keep the monyjang happy […] God was testing the man. He was testing the man, to see if he could appreciate what he had been given, if he could take pleasure in the bounty before him, rather than trade if for the unknown”.

After World War II, Europeans were faced with a similar choice. As is known, by creating the European Communities the European States, like the Dinka, chose the cow. No matter how revolutionary the powers of the new authorities were, the truth is that the European Communities were international organisations working under the rationale of international law. It was all new, indeed, but not unknown. It was an organisation for the creation of a market, an economic arrangement that would give peace, security and prosperity that would keep the peoples of Europe happy.

However, in 1992 Europe changed its mind, it took a step forward and chose “the What”. The creation of the Union, a political organisation integrating sovereign powers into a single authority, with its own European citizenship and its own source of democratic legitimacy, was a momentous decision in the history of the continent. The fact that this was all taking place at the time of the fall of the Soviet Union and of German reunification, made the choice even more significant.

The founding of the Union was certainly a step into “the unknown”, a perfect reflection of the mystifying symbolism represented by “the What”. In 1992 the Member States were not completely sure of where they were heading, but nor do they seem to be any more certain nowadays. In fact, it is astounding to see how different our conceptions of the Union are today. Some Member States and citizens believe that the Union is the dream of political integration come true, whilst others see in the Union a pragmatic remedy that protects us from the ills and wrongs of globalisation. Nothing too exciting, the “least worst” option, a useful but unlovable tool we are all stuck with. For others, the Union is and should be a market and nothing but a market. And of course there are the critics, for whom the Union is simply a nightmare. As in Goya’s sketch, the dream of reason produces ugly monsters, and the Union is a very big and ugly one (or so the critics will claim).

The Union might be an unknown, a “What”, but we have nevertheless a clear idea of the tasks that it has been entrusted with. And standing out among many other tasks, the protection of human rights appears as one of the Union’s trademark features. In fact, human rights are a defining feature of the Union, and thus an excellent tool in helping us understand what the Union is and what it aspires to be.

Indeed, human rights stand at the forefront of European integration, or so the Treaties say. Human rights are part of the values of the Union, but their promotion is also an objective of the Union. A Fundamental Rights Agency has been created, and human rights conditionality is an important part of international trade agreements entered into by the Union with third States with dubious human rights credentials. But above all, the Union has enshrined a binding Charter of Fundamental Rights with a wide array of liberal, social and political rights. The Court of Justice has given a robust interpretation of the horizontal rules of the Charter, particularly the ones on its scope of application. Union and national Courts implement the Charter every day and citizens claim their Charter rights before Union and national administrations. To close this virtuous circle, the Union must accede to the European Convention of Human Rights, with the purpose of aligning Union action with Convention standards and, above all, external control from the Strasbourg court.

Having given such relevant role to human rights is not an innocent choice. Human rights are useful tools that protect individuals, indeed. But human rights also serve a more systemic and strategic role for public institutions: the proclamation and active protection of human rights is a source of legitimacy for the political organisation entrusted with their protection. The Union has been using human rights as a source of legitimacy, as a way to reinforce the political muscle of an organisation that is still too close to the unknown, to “the What”.

However, if human rights play such an important role for the Union and they benefit from a broad array of instruments, why are we currently in a state of human rights malaise? Why is the Union giving the impression that it is not living up to the standards in the field of human rights? And what does this malaise imply for the Union overall?

I believe that the malaise has a lot to do with the risk of high expectations and with the gap between those expectations and the delivery of the goods. And indeed, if we get a glimpse of how the Union is approaching the protection of human rights, we might find good reasons to be disappointed.

The political Institutions (Commission, Council, EP, European Council) have sent some worrying signs. The Fundamental Rights Agency is a good example of how to water-down a body that could have played a relevant role in the field. It is sad to see how the Venice Commission has overtaken the Agency in authority and powers (see the recent Polish crisis), and that is, of course, the result of a decision made by the political Institutions. In the same vein, the way in which human rights conditionality in trade agreements has been enforced can also raise some doubts. Furthermore, the European Council’s decision to enter an agreement with Turkey that might seriously undermine the fundamental right to asylum (it is a fundamental right, or so the Charter claims…), even more so at a time in which one of the most tragic exodus in recorded history is taking place, gives further proof of how the delivery is not meeting the expectations created.

Unfortunately, the sun does not shine any brighter in the Union courts. In this blog, I have previously discussed about the stark contrasts between levels of fundamental rights protection in the Court’s case-law depending on the right involved. We do not really know why on earth privacy deserves super-protection, but not property rights, or social rights like the right to collective action. Fundamental rights deserve equal protection, but why are some fundamental rights more equal than others?

And then there was Opinion 2/13. All the hopes of Union accession were shattered, together with the promise of the Union’s slow and gradual inclusion into the club of respectable European nations that uphold fundamental rights and promote external control. The Court’s reluctance to accept accession, to accept Strasbourg external control, to accept references to Strasbourg from national courts, to accept anything that might undermine its authority and the autonomy (another “What”) of the Union, proves a certain puzzlement in the Union’s supreme jurisdiction approach towards human rights and their institutional implications.

Seen in this light, the Union seems to be in serious trouble. If one of the main sources of legitimacy of the Union is underperforming in such a way, the Union’s authority will eventually decline and, who knows, it might end up collapsing overall. As Americans very well know, the creation of a composite political organisation with federal aims entails serious risks, including the risk of total failure.

By failing to deliver the goods in such a strategic but also “existential” area as human rights, is the Union risking total failure? And seen in retrospect, is it possible that we, Europeans, made a mistake in 1992 when deciding to choose “the What”?

Let me now get back to the story of the Dinka tribe.

The Dinka chose the cow and they were thus prosperous and happy for many years. But that didn’t save them from the many dangers that surrounded them. The Dinkas chose the cow, but they were not spared from being attacked, slaughtered and eventually eradicated by other tribes. We will never know what would have happened had they chosen “the What”, but we certainly know that choosing the cow did not guarantee long-lasting security nor comfort to the Dinkas.

Our world is terribly more complex than the world of the Dinkas, but it is also much more scary. Communications and technology have changed social relations and have turned the planet into a borderless and small-sized auditorium. We all know what is going on at the other end of the globe, and in case of doubt all we must do is turn to the internet and find out. Social interaction takes place regardless of space and territory thanks to social media. We live in a world in which “polities” have become porous and unstructured. Language seems nowadays to be the last tool in keeping polities together.

Goods and services have changed too as a result of communications and technology. Manufacturing will be transformed (it already is) as a result of 3D printers, whilst services will be provided from long distances as a result of the internet. The world and domestic economies will never be the same, for markets have adapted to the new technological environment, were money moves from one continent to the other at the speed in which a button is pressed.

This new world is full of opportunities, but full of challenges too. International terrorism uses those same tools to make terror borderless and thus even more terrifying. The world economy has become unpredictable and unstable. The rise of hollow superpowers with a taste for war and destruction, some of them scarily close to our European borders, will not make our lives any easier.

So can we, Europeans, face the challenges of this new and daunting world by giving away “the What” and choosing again the cow? If the Union is not delivering the goods in an existential area of policy, is this good enough a reason to turn back and return to other more discrete and humble means of European integration?

The Union is not perfect, but nor is any Member State. When there are institutional problems in a Member State, nobody speaks about dismantling the Sate. Problems are spotted, approached and resolved, and then the State carries on doing its job. So why do we keep questioning the Union every time it does not provide the goods, instead of simply looking for the ways to fix the problem? At a time in which we need the Union more than ever to face the challenges that lay ahead, it is crucial that we put the emphasis on the solutions and not the problems.

As far as human rights are concerned, the Union should become more pragmatic and less rhetorical. In fact, the Union’s human rights rhetoric is at the heart of the current disappointment with human rights protection. The Fundamental Rights Agency should have executive powers and the ability to monitor EU and Member State action and eventually impose sanctions. The Charter should be approached in a much more systematic way by the Court, and if some rights are more equal than others, the Court should give convincing arguments and not simply assume that we will also assume what those reasons are.

And above all, human rights have been created indeed for the benefit of their right-holders, but they also create obligations on public power. Human rights must have a clear addressee in order to be able to make public power accountable. The Union cannot afford to give “European solutions” to “national problems” without human rights accountability. The way in which the recent economic crisis as been handled, making use of EU and international rules whereby nobody knew who was accountable, is a lesson from the past that should be avoided.

To conclude, the big malaise that afflicts fundamental rights protection in the Union does not justify an overreaction questioning the Union itself. In fact, never has the Union been more necessary than today, and it will continue to be crucial for our existence as Europeans, as long as the world evolves towards the very unpredictable and daunting place we are witnessing these days. Choosing “the What”, after all, might have saved us from the dangers of the past years. But the fact that the dangers are still there is not good enough a reason to put an end to the Union. In fact, giving away “the What” for the cow, for the comfort and security of short-term wellbeing, might be our quickest route towards disaster.

A tribute to Gil Carlos Rodríguez Iglesias

This Friday, at the Centro de Estudios Políticos y Constitucionales in Madrid, friends and colleagues of Gil Carlos Rodríguez Iglesias will participate in a conference in tribute to his contribution to EU Law. The programme is available here and everybody is welcome.

Gil Carlos Rodríguez Iglesias was the first Spanish lawyer to join the Court of Justice as one its members, back in 1986. He was then a very young lawyer in his late thirties, a Professor of Public International Law at the University of Granada, although most of his previous academic parcours had taken place at the Universities Complutense and Autónoma of Madrid. With hard work, determination and commitment, he became a highly respected member of the Court. In fact he became its longest-serving President.

As President of the Court for nine years (only outnumbered in tenure by his successor, Vassilios Skouris), Gil Carlos Rodríguez Iglesias piloted an institution through crucial times. The Amsterdam and Nice Treaties introduced considerable novelties in the EU’s jurisdictional system that became momentous reforms once the Convention on the Future of Europe began its works. The birth of the Charter of Fundamental Rights took place in 2001. Seminal judgments like Köbler, Germany/EP and Council (tobacco directive), Opinion 2/94 (ECHR), as well as fundamental decisions on national remedies (Kraaijeveld, Inter-Environnement Wallonie,, Brasserie du Pêcheur and Factortame) were decided under his presidency.

But above all, Gil Carlos Rodríguez Iglesias represents the true European lawyer: a young student from the University of Oviedo who travelled to Germany to work on his PhD, whose knowledge of languages led him towards International Law and eventually, through hard work and a brilliant mind, paved the way to the highest jurisdiction of an organisation still in the making. The legal system of the EU as we know it today, as well as EU lawyers throughout the continent, are very much in debt with Gil Carlos Rodríguez Iglesias.

These are just a few reasons, among many others, that explain why Friday’s conference in his honour is a well-deserved tribute.

Keeping EU Citizenship alive – A comment on AG Szpunar’s Opinion in Rendon and CS

Donald Tusk’s proposal for a new settlement with the United Kingdom has caused quite a stir. However, on the same week that the European Council President’s proposal was made public, another relevant document, authored by another Pole, came to the light of day. This other (yet more politically discreet) text has not made the headlines, but it is probably just as relevant as Tusk’s offer to the British government.

In his Opinion in the cases of Rendon and CS, Advocate General Szpunar has brought back to life the very essence of European citizenship. This is not a flamboyant or obscure way of putting it; this is really what AG Szpunar has tried to do: he has provided what is probably the most elaborate analysis so far of what the Court has called, in the seminal case of Ruiz Zambrano, the “genuine enjoyment of the substance of the rights of Union citizenship”.

It all goes back to 2011 and to a case that stood as the most revolutionary decision delivered by the Court of Justice since Van Gend en Loos and Costa/Enel. In Ruiz Zambrano the Court of Justice emancipated EU citizenship from national nationality, allowing EU citizens to claim their status of EU citizens even against their Member State of nationality, when a domestic measure affects the ability of a EU citizen to enjoy the rights enumerated in Article 20 TFEU. It was a momentous decision, whereby EU citizenship proved to be an autonomous statute, just as EU law is autonomous vis-à-vis national and international law.

Ruiz Zambrano was criticized for its laconic reasoning and the Court’s inability to explain itself properly, but hardly anyone dared to question the practical outcome of the judgment. Overall, the situation of the Ruiz Zambrano family was so intolerable under any standard, that nobody challenged the Court of Justice’s willingness to give practical content to EU citizenship in such a case.

The lack of reasons in the judgment gave academics much to discuss (and criticize), but when the Court of Justice started to flesh out Ruiz Zambrano in subsequent decisions (McCarthy, Dereci, etc…), pro-citizenship lawyers who had criticized violently Ruiz Zambrano for its reasoning, realized that their disapproval had backfired. The Court of Justice quickly started to walk away from Ruiz Zambrano, and, in a rather paradoxical way, the critics who had questioned the Court’s poor reasoning began to miss Luxembourg’s ability to render judgments like Ruiz Zambrano. It was quite sad to see how Ruiz Zambrano’s unwilling executioners were many eminent lawyers who had supported the noble cause of EU citizenship in the past. Either because they didn’t see it coming, or because they didn’t like the reasoning, or because they weren’t astute enough to realize that the Court needed the help of academia in fleshing out Ruiz Zambrano, many citizenship and constitutional experts disdainfully and clumsily helped the real enemies of EU citizenship in burying what was probably the Court of Justice’s most innovative, daring and constitutionally relevant decision in decades.

Last week, when everyone thought that Ruiz Zambrano was well buried and forgotten, AG Szpunar brought it back from the dead.

Rendon and CS deal with two expulsion orders issued by Spanish and UK authorities, respectively, in a situation like Ruiz Zambrano’s, but in which the third-country parent has been criminally convicted by the Member State’s courts. In such circumstances, does the Ruiz Zambrano test apply and, if so, is it justified in any way for a Member State to order the expulsion of the third-country parent that will entail the de facto expulsion of the infant EU citizen? AG Szpunar has provided an extremely well thought and reasonable solution to both cases, and has come to the conclusion that Ruiz Zambrano applies indeed and protects the infant EU citizen. In the Spanish case, where an automatic statutory rule entails the expulsion of a migrant when he or she has a criminal record, the AG considers that such rule breaches article 20 TFEU as interpreted in Ruiz Zambrano. In the case of CS, the AG strikes a careful balance that allows UK authorities to use their discretion, but based only on an imperative reason relating to public security.

The most interesting part of the Opinion deals with the “substance of the rights” test in Ruiz Zambrano. The AG makes a careful analysis of European academic literature about fundamental rights, the categories that most resemble what the Court referred to in Ruiz Zambrano (the “essential content” of fundamental rights, mostly) and finally draws practical conclusions applicable to the specific cases of Rendon and CS. The Opinion is a tour de force, carefully construed and balancing intellectual rigor with practical common sense. It fills in many gaps that were left open in Ruiz Zambrano and that the Court, in its subsequent and very restrictive case-law (sometimes even reactionary, as in Iida or Alokpa), had been unable to fill. For example, the question of whether is it possible to do a proportionality test in Ruiz Zambrano situations, is a point that had been left untouched and that the AG deals with in a very convincing way.

But above all, Rendon and CS show that EU citizenship is still a category in the making that needs the help of those who believe in the promise of European integration. At a time in which some Member States want to depart from “an ever closer Union” and others look for ways to sideline the rule of law, the EU is still a magnificent source of inspiration and justice for citizens, Europe’s best (and probably sole) guarantee of peace and prosperity in the continent. Ruiz Zambrano was a message in a bottle that, quite surprisingly, the supporters of EU citizenship ignored and tried hard to sink forever. With Rendon and CS, a second chance has been given to Ruiz Zambrano. With the contribution of AG Szpunar, and (hopefully) the help of those who clumsily almost put Ruiz Zambrano to rest, the Court of Justice will have the chance of keeping the flame of the noble dream of citizenship burning for many years to come.

A tribute to José Luis Serrano


We are in debt with those who have shaped our present and our future. In my case, I am indebted to a lot of people, but during my University years very few people were as influential to me as José Luis Serrano, who passed away yesterday at the age of 55, victim of pancreatic cancer.

José Luis Serrano was Professor of Legal Theory at the University of Granada and currently the president and spokesman of Podemos at the Parliament of Andalucía. But above all, he was a writer of immense talent, the author of many novels and thousands of beautiful pieces (“caoramas”) published in papers, journals and the internet. José Luis was a man of acute sensitivity, profoundly concerned with the role of society and the environment, a firm believer in Luhmann’s system’s theory, a fierce critic of Dworkin and Habermas who, nevertheless, called himself a kantian.

He was one of my professors in my first year at University and, fortunately for me, he taught me again in my last year in Law School. He was an inspiring professor with magnetic charisma and the ability to make a young teenage student like myself think outside the box. In Spanish University that is quite an achievement. In the context of Granada’s legal academic environment, José Luis was an outstanding talent well beyond the reach of most of his colleagues and students.

During his last years, José Luis became closely involved with Podemos and our views parted ways. He was optimistic about the forces of change, but I was not. He believed in societal change, while I remained skeptical. He believed, despite our differences, that the forces of good would prevail over the forces of evil. In his last public appearance, shortly before the Spanish general election, he was still convinced that the time of genuine change was right around the corner. I wish that I were wrong and that he was right, but his confidence in the forces of good was relentless.

Now that he is gone, his literature will remain. Miguel Pasquau, in a moving tribute to José Luis before the tragic end, spent many hours sharing among friends beautiful extracts of his literature. In one of those pieces, José Luis wrote about the cathartic power of crying:

Somos un relámpago de soledad, de amor y de tiempo y las tres cosas llevan lágrimas. Loado sea el amor de los que se ríen juntos. Bendito aquel que habla solo y se ríe, porque lleva en paz su soledad. Y alabado sea el amigo incansable que compone chistes para que nos riamos juntos de los estragos del tiempo. Sin embargo, hay algo en el llanto que no está entre las ventajas de la risa. Hay algo en el llanto que nos recuerda la dignidad enorme de quienes lloran con razón: porque están demasiado solos, porque el tiempo los devora, porque sienten el sabor amargo que se llama tristeza y que aparece siempre cuando el amor se va, o porque son relámpagos humanos de soledad, de amor y de tiempo“.

The dignity of those who cry for a reason, is the kind of dignity that José Luis bestowed upon those who cry and are in pain today for a loss that came too early.

Thank you, José Luis, for believing in the forces of good. I cry your loss with the dignity that you generously gave, through your actions and example, to me and to so many others.


The German Constitutional Court (GCC) has fired again, this time in the always sensitive area of fundamental rights. In an Order published yesterday, the GCC has undertaken an “identity control” over the implementation of a european arrest warrant issued by Italian authorities and intended to be enforced in Germany. The person concerned, a US national convicted in Italy in absentia, claimed that his conviction had been ruled without any guarantees, and now, under Italian law, nothing can stop the enforcement of his conviction. Italian procedural law does not provide a remedy at this point.

The GCC has applied, for the first time, its “identity control” to a case fully covered by EU Law. Therefore, the review by the GCC of the challenged judgment, which implemented the Framework Decision and the German implementing act, entailed an indirect review of the Framework Decision itself. The GCC reminds its readers of its traditional case-law on “identity control” and comes to the conclusion that in this particular case it is perfectly possible to make use of it. In the end, it quashes the decision of the instance court but it states that the Framework Decision and the German implementing act are perfectly in line with the solution it comes to.

I completely agree.

The trial in absentia that took place in Italy was clearly in breach of Convention rights, because the accused had not been informed of the date of the hearing, he was not represented by a lawyer, etc… In other words, the trial was a mess. This contrasts with the facts in the case of Melloni, where Mr. Melloni had been sentenced in absentia but scrupulously following the minimal conditions required by the Convention. The case before the GCC is a good example of how not to handle a trial in absentia. Therefore the Framework Decision entitles Member States to refuse the enforcement of decisions enacted under such terms.

Therefore, what is all the fuss about? Why has the GCC made an “identity control” when the Framework Decision solves the case anyway in the same terms?

It seems as if the GCC is sending a message to Luxembourg: it is not willing to buy the Melloni case-law. Therefore, the Court of Justice’s approach to article 53 of the Charter, which imposes Charter levels of protection in cases totally determined by EU Law (i.e., with no discretion for Member States), is being rejected. The GCC is clearly stating that it will undergo “identity control” in any case covered by EU Law, including in areas totally determined by European rules, including those that may lower the levels of protection enshrined under national law.

Therefore, it is a harmless judgment on the facts, but a very important one on the symbolic side. In fact, the decision is perfectly in line with the decision of the Spanish Constitutional Court in Melloni, in which the Spanish court decided to lower the domestic level of protection of the right to a fair trial, but not on the grounds of EU Law. The Spanish court highlighted that the judgment of the Court of Justice in Melloni was “a very useful reference”, but not a binding decision. In the end, the Spanish court followed the Luxembourg criteria, but on the sole grounds of the Spanish Constitution. Now the GCC is saying pretty much the same thing, but through the sophisticated means of “idenitity control”.

This is an unsurprising turn of events. Constitutional Courts have been protagonists of the fundamental rights narrative for more than half a century in Europe. In the case of Germany, Spain, Portugal or Italy, Constitutional Courts have been the guardians of human rights in States with a dubious past track-record in this matter. These are therefore powerful and relevant courts with an important tradition, and they are not willing to step back. European integration is side-lining them, but the events taking place in Europe (and everywhere in the world) are so serious that Constitutional courts feel a duty to keep acting as guardians. This attitude might be interpreted as a sign of nationalism, but it can also be the confirmation of the importance of the issues being now handled by the EU: data protection, the fight against terrorism, immigration, the euro and financial assistance of Member States, etc… Why would these courts decide to become irrelevant now, at a time in which the challenges ahead are as relevant or even more important than those they have faced in the past?

In my opinion, this should not be a cause of concern, but only as long as the Court of Justice handles the situation with care and intelligence. It did a good job in the OMT case, but it is obvious that the area of fundamental rights is a thorny one that poses many  challenges. Akerberg Fransson and Melloni were a brave but risky start, shortly followed by some cautious decisions. However, Opinion 2/13 and the inability of the Court of Justice to adjust to a future ECHR accession, including Strasbourg external control, is a damaging and clumsy move that has only made Constitutional courts frown. If they are subject to Strasbourg control, why can’t the Court of Justice accept it too? Many Constitutional Courts are perfectly entitled to think “what are they scared of in Luxembourg?”.

It will not be easy for the Court of Justice to come out of the situation created by Opinion 2/13. However, the Charter is still a very valuable instrument, a source of endless inspiration that could help the Court seduce national Constitutional Courts in the years to come. Also, the current events taking place in Poland are another good opportunity for the Court of Justice to prove how far it is willing to go in assisting national Constitutional courts that come under attack. The current situation is a difficult one, but the Court of Justice has the authority, prestige and background needed to face the challenge.

The GCC has fired once again, but it would be a very reductionist reaction to simply say that it is a mindless and nationalistic claim from Karlsruhe. On the contrary, this is yet another reminder for the Court of Justice of the importance of fundamental rights, and of the importance of its role as interpreter of the Charter. In other words, this is another opportunity for the Court of Justice to forget that phrase so frequently used by its judges in public lectures, according to which “we are not a fundamental rights court”. Whether they like it or not, they have become one. The longer they stubbornly resist to this reality, the more painful the awakening will be.

The Polish Dilemma

With the unfolding of events in Poland, the Union is heading towards yet another crisis. Unfortunately the EU is getting used to live in a state of constant emergency, but the Polish crisis, if we can call it a “crisis” at this early stage, is very different from all the rest.

The economic crisis has transformed the ECB, turning it into a key Institutions of European integration. The refugee crisis is about to transform the Commission’s role in the handling of immigration policy and frontier control. The Polish crisis could also change the Commission and the role of the European Council in Article 7 TEU scenarios, but, above all, it will probably affect the Court of Justice the most.

The Polish case is a crisis of the rule of law. Something similar has been taking place in Hungary and, to a lesser extent, Romania. But having a “Hungarian scenario” in the Union’s sixth largest country, a role-model country among the new Member States, is enough to set all the alarms. If Poland is to fall under the spell of the politics of fear and populism, it is easy to envisage other Member States following the same path. The rise of the Front National in France and its success in the past regional elections is only a hint of what could follow. Populist parties are proving to be extraordinarily efficient in dismantling the institutions of the State for their own benefit once they reach government. The first victims are usually the guardians of the Constitution: Constitutional Courts. The media go next. From that point onwards, the domino effect does the rest.

The Polish case is therefore about the rule of law, because the means deployed by the sitting government are exactly the same ones we have seen in the past: a full-front attack against the guardian of the Constitution (packing it or blocking it) and a seizure of independent public media for the purpose of keeping the message in focus. Therefore, because the Polish case is about the rule of law, it raises serious issues about the values enshrined in the Treaties. These values are not a frivolous manifesto. On the contrary, they are stained by blood and a deadly history of war, genocide and abuse in the European continent.

The Court of Justice has no jurisdiction to rule on the substance of an application under article 7 TEU. If the Commission or the European Council ever come to the point of implementing the cumbersome procedure established in article 7 TEU, Poland would not be able to challenge the final decision on substantive grounds due to article 269 TFEU, which limits all means of judicial review to procedural issues.

However, it is precisely on the grounds of procedure where the battle might have to be fought. In that case, the Court of Justice will become a key player in the Polish crisis.

If the Commission launches its Rule of Law mechanism, as it appears portrayed in the 2014 Commission Communication, Poland could easily question the Commission’s competence to start a procedure that is nowhere to be found under the current provisions of EU Law. And if the Commission finally decides to formally launch Article 7 TEU proceedings, the final determination of the European Council will demand a unanimous vote which, almost certainly, Hungary will veto. There are ways to sort out this obstacle, as recently explained by Kim Lane Sheppele in Politico, but they will surely be challenged by Hungary or any other Member State sidelined in the European Council. And even if there is a unanimous vote, there are always tricky and ambiguous cases with no clear line between procedure and substance that could be brought by Poland that only the Court of Justice can solve.

Either way, it is undeniable that Article 7 TEU is a very poor piece of law, probably drafted with the prospect of never having to use it. But now that the time is ripe for making good use of the tool, the Court of Justice will have to face difficult choices.

The Court of Justice will first have to decide whether to make a broad or a strict interpretation of the term “procedural stipulations”, as it appears in Article 269 TFEU. The scope of this term determines the scope of the Court’s jurisdiction, but past case-law shows how generous has the Court of Justice been with itself when interpreting provisions of the kind. However, if the Court decides to do a strict interpretation and puts itself in the sidelines, the message will be clear: rule of law issues in Member States are for the European Council to deal with, not for me.

However, if the Court of Justice embraces a broad interpretation (as it is to be expected), then it must assume that it has become a guardian, or a co-guardian (together with the European Council), of the rule of law in a Member State. In other words, the Court will become a crucial actor in safeguarding the constitutional values of a Member State.

In fact, the result of neutralizing a Constitutional Court is that the national Constitution has lost its guardian. In the absence of such guardian, the Union is called to intervene. Therefore the Union, through the European Council and the Court of Justice, indirectly becomes the guarantor of the national Constitution.

This outcome would be revealing of the kind of constitutional creature the Union can turn into. The Constitution of a Member State must make some adjustments to ensure its fit under EU Law, but this also comes with considerable benefits: in case of system failure of the domestic instruments guaranteeing the integrity of the Constitution, EU Law provides extra help. Therefore, the traditional relationship between the Court of Justice and Constitutional Courts does not only serve the effectiveness of EU Law, but it can also be built on the assurance of mutual assistance in case of system failure.

And this brings me to a final point: if the relationship between the Court of Justice and Constitutional Courts is not only a question of cooperation, but also one of active assistance in times of system failure, doesn’t this change the nature of the relationship between these courts? After all, having an operative and well-functioning Constitution in a Member State is also in the interest of the Union and, more particularly, of the Court of Justice. EU Law relies heavily on the existence of national courts governed by the rule of law. In fact, Article 19 TEU insists on the importance of national remedies in the EU’s judicial architecture. How is a Member State to guarantee “effective remedies” in its judiciary if its judicial umpire, the Constitutional Court, is undermined and dismembered?

The Polish scenario could drive the Court of Justice to play a new and important role in the European judicial architecture: to become the final sentinel of the rule of law in Europe, particularly when the national sentinel (the Constitutional Court) has been pushed aside by the forces of fear and populism. The Court of Justice could uphold the Commission’s imaginative efforts to exert pressure over the recalcitrant Member State, or it could support the European Council’s decisions avoiding the veto of other Member States with dubious plans ahead. The Court of Justice could even step with care into the terrain of substance and state what the rule of law is under Article 2 TEU, so that all Member States take note.

But the Court of Justice could play exactly the opposite role and get scared: scared of being accused of activism, scared of empowering the Commission too much, scared of setting a dangerous precedent, scared of being declared ultra vires. The politics of fear could also succeed in the Luxembourg court.

The Polish crisis could thus turn into the Polish dilemma: the Court could feel intimidated by the size of the challenge and decide to step back by using Article 269 TFEU as an excuse to divert the burden towards the European Council, where compromise and appeasement is to be expected; or it could become the guarantor of national Constitutions when the domestic guardian comes under attack. The first option, betting on an appeasement strategy, could have terrible consequences for Europe if it finally results in the triumph of populism and the politics of fear. The second one, the activist approach, would certainly entail many risks, but the rule of law would prevail and national Constitutional Courts would realize that the Luxembourg court, in times of crisis, is ready to stand by their side. The dilemma would be unprecedented in the history of the Court of Justice, but these are exactly the decisions that change the face of history (and of institutions too).