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).

The reform of the General Court: unleashing the forces of change

The reform of the General Court is a reality now. The Council and the European Parliament have green-lighted a reform that is destined to become a landmark in the history of the EU’s judiciary. For good or for worse, the new General Court, the product of a constitutional reform under the cover of a reform of the Statute, is here to stay.

There are many critics of the reform, including some Member States. The supporters seemed to be for a time a silent minority, but they have successfully convinced the sceptics and the European Parliament finally gave way to the many objections being brought by MEPs, academics and even some members of the General Court.  As for me, I raised some objections as to the principles underlying this reform. In a previous post I argued that a transformation of the EU’s judiciary like the one we are about to see required a Treaty reform. However, my objection was (and is) not based on the legality of the reform, but on the means and procedures used, which, I believe, do not reflect the importance of the measures being taken.

But the reform is now part of our lives and we should start learning how to cope with it, as lawyers, as academics, as judges or as civil servants. The Court of Justice of the European Union will undergo a momentous change, so the quicker we get used to it, the better.

The change will start, of course, at the General Court itself. Fifty-six judges are a lot of people, and they will certainly not be your average Joe. Fifty-six highly competent lawyers, chosen through a very complex and demanding procedure, both political and technical, from which not everybody comes alive or in one piece. Fifty-six judges with their armies of référendaires, outnumbering by far the référendaires of the Court of Justice, thus becoming the most numerous professional community (together with jurist-linguists) inside the Institution. And despite the huge overall number, it is possible that the power, presence and authority of each individual judge will diminish. In a 56-judge jurisdiction, individual voice is a rarity. Authority and power will depend on the ability of each judge to act efficiently, not necessarily on their intellectual prestige. In very big houses, housekeepers, not charming armchair thinkers, reign supreme.

Specialised chambers at the General Court will become a reality, too. There are already plans to have a chamber for staff-cases, but soon it will be inevitable for specialised trademark chambers to appear too. The haunting myth of a specialised competition chamber will probably be postponed, but if staff and trademark specialised chambers become a success, then the door will be open for further experiments. IP lawyers will be happy to hear this, but only if the appointment process works correctly. If judges end up taking turns in order to have a say at both the “fun” chambers and the “boring” chambers, rotations will be lethal for coherence and expertise. If référendaires end up attached to specialised chambers (and not to judges) in order to ensure a certain stability in the case law, judges might end up questioning who is running the place. But if specialised chambers are not an option, who will trust a jurisdiction with, say, fifteen three-judge chambers, to ensure the coherence of the law?

A 56-judge General Court might finally push the Court into giving away its jurisdiction in preliminary references procedures in some specific areas, as provided by Article 256.3 TFEU. It could make sense to have a specialised Community trademark chamber also hearing references of interpretation concerning Directive 2008/95, on the approximation of laws of the Member States relating to trade marks. And why not VAT references? The Court of Justice is still bombarded with VAT references from national courts that can perfectly be handled by the General Court. The review procedure would not be dead after all, and it could be revived in order to guarantee a certain degree of supervision over the General Court’s preliminary rulings. The inertia and dynamics of an enlarged General Court might be too powerful to stop, and we could soon find ourselves with specialised chambers at the General Court hearing preliminary references. I have no objection to that, but we should be aware of the forces that are being awakened by the current reform.

On a different note, the new General Court will have (or it certainly should have) the tools and staff to rule swiftly on a very high number of cases every year. This means that the appeals on points of law will skyrocket in the years to come. The Court of Justice has taken measures to face this challenge, and in the recent years there is a clear tendency to make good use of Article 181 of the Rules of Procedure. This provision allows the Court of Justice to strike out an appeal by way of a reasoned order if it is manifestly inadmissible or unfounded. I have a feeling that this procedure will become the standard practice when the Court of Justice handles appeals against decisions of the General court, and its use will probably develop into a sophisticated type of discretionary remedy. The Court of Justice will not be able to process the amount of appeals being brought by unhappy parties against decisions of the General Court, and therefore its practice will become more and more principled-oriented. Appeals will not become a remedy for parties, but a sort of individually-brought review procedure with the purpose of guaranteeing the unity and coherence of EU Law. In an overburdened appellate court, appeals will not be a remedy to ensure the effective legal protection of individual litigants. Once again, I have no objection to this model (in fact, it exists in many Member States), but we should all be aware of its impact. Decisions of the General Court will need to be carefully made, because the parties will hardly have another shot before the Court of Justice.

This brings me to another related point: the need of external control of EU courts. If direct actions end up being dealt in a single-instance jurisdiction, with appeals left only for principled cases carefully chosen by the Court of Justice, it will be essential for the EU to accede to the European Convention of Human Rights. Private parties will not tolerate a judicial system in which crucial decisions for their lives, welfare or property, are solved by a sole jurisdiction against whom there is only a discretionary appeal. Strasbourg scrutiny will become crucial if the EU wants to prove that its judiciary is, as it self-proclaims itself, “a complete system of legal remedies and procedures”. However, the resistance of the Court of Justice to accept the conditions of accession to the ECHR will not help when, in the near future, its appeals become more and more principled, and the judgments of the General Court more and more crucial for litigants. In an ironic twist of fate, the reform of the General Court so hardly pushed by the former President of the Court, Vassilios Skouris, might end up becoming the Union’s fast-speed train towards accession to the ECHR, which Skouris was so concerned about.

Lastly, this reform will also force a revision of the Court of Justice of the European Union as an Institution. So far, it has been clear that the Institution and its President were one thing, and the Court of Justice, the General Court, the Civil Service Court and their respective Presidents quite a different one. The tensions between the Court of Justice and the General Court during the negotiations of the last reform have brought to the day of light the need to clear up who is in charge. A 56-judge General Court will be a very powerful player if it ever decides to act in unison. The President of the Institution, not of the Court of Justice, could have a tough time trying to find its own voice in such a crowded house. His colleagues at the Court of Justice are the ones who have elected him (and to whom he is accountable every three years), but he is the President of an Institution that also represents the 56 judges at the General Court. I can imagine the current President, a natural consensus-builder, managing successfully to represent both jurisdictions before other Institutions. However, future Presidents might not have the same abilities as the current one. If institutional malaise is to be avoided in future years, serious consideration should be given to the Court’s role as an Institution.

The reform of the General Court is the first step in the transformation of the EU’s judiciary. It will unleash the forces of change, whether we like it or not. But if those forces are wisely managed, it could be the Institution’s chance to turn into the judicial hegemon that many wish the Court to become. Wisdom and care, in very high doses, will be needed more than ever in the years to come.

Supreme allies

In a short time-frame, two high courts of two Member States, the French Cour de Cassation and the Spanish Tribunal Constitucional, have delivered two important judgments on the implementation of EU Law by lawyers and domestic courts. The two decisions touch different subject-matters and deal with different claims, but they are equally relevant for what they represent for the correct implementation of EU Law. As I said a few weeks ago in a previous post, national high courts are becoming key players in EU Law, and the Court of Justice should cherish and look after this highly valuable ally.

Last May, the French Cour de Cassation ruled in favor of a former worker who had sued his lawyer for not making a proper defense of his client (see the judgment here). The lawyer did not invoke the Court of Justice’s case-law stated in the well-known cases of Mangold, Kücükdeveci, Petersen, etc., on discrimination on the grounds of age. As a result of it, the worker lost his case against his former employer. The Cour de Cassation stated that the claimant’s chances of success in case of having invoked the Court of Justice’s case-law were up to 80%. Therefore, the certainty of the loss suffered entitled the claimant to successfully claim damages from his lawyer.

Yesterday, the Spanish Constitutional Court, in plenary formation, ruled in favor of another worker whose claim based on EU Law was plainly ignored by the High Court of Madrid (see the judgment here). Following the Court of Justice’s case-law in the cases of Gavieiro Gavieiro, Lorenzo Martínez and others, which solved a series of cases identical to the one of the claimant, it was obvious that this case-law applied and solved the case. However, the High Court of Madrid ignored this and dismissed the claimant’s appeal.

The Spanish Constitutional Court has now stated that any jurisdiction in Spain that ignores a judgment of the Court of Justice is breaching the fundamental right to a fair trial, as provided by article 24 of the Spanish Constitution. This gives any claimant in such circumstances the chance of invoking another ground of appeal, and, above all, the use of the special procedure for the protection of fundamental rights before the Constitutional Court (recurso de amparo).

These two judgments impose considerable responsibilities on lawyers and judges. The French decision sets a high standard of professional expertise on practitioners, especially on those who are highly qualified and (as in the case of France) allowed to plead before the highest courts of the country. The Spanish judgment is a nice reminder for all courts in Spain  that the case-law of the Court of Justice is binding in the strongest possible way, and therefore binding for all courts. Both cases have in common a total absence of reference to EU Law, by the lawyer in his submissions in one case, and by a court in its judgment in another.

Therefore, the sum of both decisions is not revolutionary, because it is obvious that a total lack of reference to the applicable law, whether it is national or EU Law, raises serious issues about the decision at stake. However, it is important that the highest courts of Member States are assuming the task of ensuring the correct application of EU Law. This is of course a matter for the Court of Justice, but also for its domestic counterparts too. And it is nice to see that these cases have been solved without the need to make a preliminary reference to the Court of Justice. High courts know what their role is and how it must be put into practice under national law. Now it is time for lawyers and for the remaining domestic courts to act accordingly.

The Dyson case and the future of the TWD case-law

Last week, the Court of Justice and the General Court rendered a few decisions that shed light on an important topic: the standing of private parties when challenging EU non-legislative acts. In particular, when challenging delegated or implementing acts in direct actions and preliminary references of validity.

In Dyson, the General Court ruled on a case brought by Dyson, the vacuum cleaner producer, against Delegated Regulation 665/2013, on energy labelling of vacuum cleaners. Dyson complained about the Commission’s use of its delegated powers, as granted by Directive 2010/30 of the Council and the European Parliament. Dyson alleged lack of competence of the Commission, a failure to provide reasons and an infringement of the principle of equal treatment.

The Commission did not appear to have submitted an objection of inadmissibility for lack of standing. The General Court did not raise the issue on its own motion. It was understood that Dyson, a producer of vacuum cleaners, was directly concerned by a general act such as Delegated Regulation 665/2013. Furthermore, nobody suggested that this delegated act needed further implementing acts, probably because it was understood that the measure would be directly applicable to all interested parties from the day of its entry into force. The only way to challenge its validity would be by breaching it, thus forcing sanctions or penalties that would open the door to judicial review.

A few days later, Advocate General Kokott published her Opinion in the cases of Esso, DOW Benelux, and Borealis. These cases touch upon several complex issues, but one of them was the jurisdiction of the Court to rule, by way of a preliminary reference, on the validity of a Commission Decision that was to be considered, according to the AG, as an implementing act pursuant to Article 291 TFEU. According to the Court’s long-standing TWD case-law, private parties who have standing to challenge an EU act before the EU Courts through a direct action, may not benefit, by way of a preliminary reference of validity, of a supplementary remedy. If the private party did not bring the case before the EU Courts in an action of annulment, then no preliminary reference of validity will be available for him or her. According to the AG, it is not evident that the plaintiff could have directly challenged the implementing Decision in question before the General Court, so the Court of Justice should have jurisdiction to rule on the preliminary reference of validity.

As the Lisbon Treaty’s provisions on delegated and implementing acts slowly take shape, and now that the Court has rendered some relevant decisions in this domain (Telefónica, Inuit, T&L Sugars), we can start to draw some conclusions about the functioning of the system. In this post, I would like to focus more particularly on the impact of the said “system” on the TWD case-law.

After Inuit, it is now clear that private parties have to be individually and directly concerned when challenging legislative acts (even if the Treaty only refers to “regulatory acts” when introducing a flexibility rule in article 263 TFEU, paragraph 4, in fine). Also, T&L Sugars has confirmed that implementing acts will demand in most of the times (maybe all of them) further implementing acts from Member States that will exclude private parties from benefitting from the flexibility clause of article 263 TFEU, paragraph 4, in fine, that applies to non-legislative acts.

Therefore, when it comes to challenge the validity of non-legislative general EU acts, it appears that the flexibility clause of article 263 TFEU, paragraph, in fine, will be most frequently used for actions against delegated acts and, in particular, against Delegated Regulations. These seem to be the obvious targets of actions against “regulatory acts which [are] of direct concern to [the plaintiff] and [do] not entail implementing measures”.

The judgment in Dyson confirms this impression. Nobody questioned Dyson’s standing, even though it was challenging directly before the General Court a Delegated Regulation. Under pre-Lisbon Law, Dyson would have had a difficult time proving it was individually and directly concerned.

This brings me to TWD and the Court’s case law on preclusive limitations to make preliminary references of validity against acts that have not been previously attacked by way of a direct action. This case law makes sense inasmuch it attempts to preserve the role of time-limitations. If a private party with standing to challenge an EU act does not do so within the two months established in the Treaty, it must loose its chance to challenge the act indirectly, months or years later, by way of a preliminary reference.

I believe this case-law should not apply to non-legislative acts of a general scope that benefit from the flexibility clause of article 263 TFEU, paragraph 4, in fine. Undertakings might not have any incentive to challenge a Delegated Regulation, considering how broad and extensive these acts may be. Furthermore, an undertaking might find itself in the future being fined by the authorities of a Member State for not complying with a provision of the Delegated Regulation. However, it is obvious that the undertaking should not be forced to challenge the act in a preventive fashion, just in case it needs to challenge it in the future, a future that is very uncertain. The TWD case-law might still make sense for individual acts, where the good faith of the plaintiff that has missed his or her two-month time-period might be questioned, but it is difficult to accept when it comes to general acts. In fact, by making certain general act be more easily attacked, the argument against TWD is even stronger, not the opposite.

The Commission’s production of Delegated Regulations is quite high. It is therefore not reasonable to argue that undertakings and all other private parties should challenge these acts “just in case of what might happen in the future”. For the sake of the Court itself, and mostly of the General Court, it is in the interest of the Institution that the TWD case-law is reversed when it comes to challenge, via preliminary reference of validity, acts of a general scope under article 263 TFEU, paragraph 4, in fine. Otherwise the General Court might find itself flooded with direct actions against such acts. Even with 56 judges, it would be a heavy load to carry on the sole shoulders of the soon to be enlarged Court.