On really responsive rule-making? The EU-US Transatlantic Trade and Investment Partnership (TTIP) negotiations

Dr. Elaine Fahey

Senior Lecturer, The City Law School, City University London

The script

The EU and US have now completed six rounds of negotiations on the Transatlantic Trade and Investment Agreement (TTIP), the trade agreement under negotiation between the EU and US to cut trade barriers and ‘behind the borders’ barriers (technical regulations, standards, approvals) in a wide variety of sectors. It is touted as having the potential to become the global trade standard. Already, the epitaph is alleged to have been written on the Agreement. Yet while this misses the mark as to the theatre of global rule-making, on the other hand, scepticism is not unwarranted. It has at times appeared as an extraordinary experiment in rule-making1. TTIP harbours ambitions to grow as a living regulatory entity. It has become rife with controversy, for its secrecy, for its possible inclusion of the Investor Settlement Dispute Mechanism (ISDM) and its impact on EU regulatory standards. Some have even tried to stop the negotiations using EU law itself, in the form of a failed European Citizens Initiative.

The history of transatlantic relations is littered with many failed attempts to integrate EU and US legal order through mutual recognition, even in very limited fields. TTIP had been poised to shake up this dynamic. It has become an exercise in ‘really responsive rule-making’. However, many questions remain about international negotiations and the standard of what is and should be ‘really responsive EU rule-making’:- I reflect on its script, production process and the cast of actors.

The production process

Most EU-US rule-making processes in the past has been conducted firmly behind closed doors, in inscrutable so-called ‘Dialogues’, in a range of fields that many will never have heard of. They traditionally privileged industry. The TTIP negotiations have marked an enormous shift in EU-US rule-making. Continue reading

Cartel Damage Claims and the so-Called “Umbrella Pricing” Under EU Competition Law: The Kone Ruling of the CJEU

Jens-Olrik Murach and Pablo Figueroa

On June 5, 2014, the Court of Justice of the European Union (respectively, the “EU” and the “CJEU”) issued a Ruling in relation to so-called “umbrella pricing” cartel damage actions.  These claims refer to damages allegedly suffered due to the surcharge applied by non-cartelists who, independently and rationally, adapted to a price increase resulting from a cartel by increasing their own prices.

Pursuant to the Ruling of the CJEU in Case C-557/12 Kone (“Kone”), the Treaty on the Functioning of the European Union (“TFEU”) preempts the EU Member States from having in place domestic regulations which “categorically exclude” umbrella pricing claims deriving from breaches of EU Competition law.

I.   Background

In February 2007, the European Commission issued a Decision imposing fines on the members of an alleged cartel in the markets for lifts and escalators.  The members of the alleged cartel included the Finnish company Kone AG.

Relying on the “umbrella effect” of the cartel, ÖBB-Infrastruktur AG (“ÖBB”), a subsidiary of the Austrian Federal Railway, brought an action before the Austrian courts against the members of the alleged cartel, including Kone AG, claiming damages.  These damages would result from ÖBB buying from third party suppliers which were not a member of the cartel at a higher price than ÖBB would have paid but for the existence of that cartel, on the ground that those third undertakings benefited from the existence of the cartel in adapting their prices to the higher level (see Kone, at § 10).

ÖBB’s action was rejected by an Austrian Court of First Instance but it was upheld by the appellate Court.  The Austrian Supreme Court (“Oberster Gerichtshof“) asked the CJEU for a preliminary ruling on the issue of whether Article 101 TFEU (namely, the provision of EU law which prohibits anti-competitive agreements, the EU equivalent to § 1 Sherman Act) requires the recognition of “umbrella claims”.  This recognition would apparently be contrary to the requirements, applicable to damages claims under Austrian torts law, of “adequate causal link” between the conduct of the infringing entity and the injury and “unlawfulness”, that is, whether the provision infringed had as its object the protection of the interests of the injured person (see Kone, at § 13 to 15). Continue reading

Matteo Renzi, between the quest for “Europe’s soul” and the “assault of technocracy”

lindsethProf. Peter Lindseth

Two recent pieces in the FT (here and here) brought home the magnitude of the task currently confronting Italian Prime Minister Matteo Renzi as he seeks to reform a sclerotic domestic system and yet ward off complaints from supranational technocrats unsatisfied with the pace of change. The Renzi challenge can be seen as a case study in whether and to what extent charismatic political leadership in a national democracy can successfully achieve its goals in the face entrenched bureaucratic power both national and supranational. In that regard, readers may find of interest remarks I delivered last month at the Summer School on “Parliamentary Democracy in Europe” at the LUISS Guido Carli School of Government in Rome. My focus was Renzi’s recent speech before the European Parliament on 2 July 2014, viewed in relation to statements made before the Italian Chamber of Deputies and elsewhere around the same time. Renzi’s line of rhetoric on Europe—notably his quest for Europe’s “soul” and “the meaning of [its] life together”—provided a point of entry into a broader set of reflections on the current state of the integration process, its socio-political / socio-cultural underpinnings, as well as the challenge of reconciling (national) democracy and (largely but not exclusively supranational) technocracy. The full remarks can be found here (including citations), while below is an excerpt.

Renzi began [his speech of July 2d in Strasbourg] by offering congratulations to the members of the EP for their recent election. He spoke of the “great responsibility” of the EP to bring “trust and hope” (fiducia e speranza) to European institutions. But note what he did not say: He did not say that EP brought “democratic legitimacy” to European policy-making. He did say that it was “only right and politically just” for the European Council to respect “the results of the recent electoral campaign” and hence the EP’s “prerogatives” in the choice of the new Commission president. But he avoided using the language of EU “democracy” to describe this step.

Of course, I have no special access to the workings of Renzi’s mind. Nevertheless, I think it is fair to say that he deliberately avoided the language of democratic legitimation with regard to the EP. The prior week, in a speech before the Italian Chamber of Deputies, Renzi stated: “Those who imagine that the democratic ‘gap’ in Europe will be overcome simply by the appointment of Juncker as President of the European Commission are living on Mars.” In that earlier speech he went on to describe not only the low turnout in the European elections but also the significant percentage of the vote that went to parties hostile to the European project. From there he segued to a theme that would be central to his speech in Strasbourg the following week: “It is not enough to have a currency in common, or a President in common, or a source of funding in common.” Rather, what is needed is for Europe to “accept the idea that we have a destiny in common and values in common.” In his speech the following week before the EP, Renzi elaborated: “The real challenge confronting our continent is to find the soul of Europe, to find the profound meaning of our being together” (my emphasis).

Now I know as scholars we are not supposed to pay much attention to these sorts of rhetorical flourishes by politicians. Nevertheless, I found this entire line of discussion fascinating. Perhaps Renzi did not intend it but his reference to finding Europe’s “soul” and “the meaning of our being together” brought to mind a similar line of thinking in Ernest Renan’s famous 1882 lecture, “Qu’est-ce qu’une nation?” (“What is a Nation?”). According to Renan: “A nation is a soul, a spiritual principle…. [It is] the possession in common of a rich legacy of memories [but also] present-day consent, the desire to live together … [It is] a daily plebiscite ….” In speaking of the current ills afflicting the EU, did Renzi intentionally mean to invoke this paean to liberal nationalism of the nineteenth century? After all, isn’t European integration supposed to be a “post-national” project, something designed to transcend the legacy and evils of nationalism?

Perhaps Renzi was not invoking Renan specifically, but there is much in the speech to suggest that Renzi would like nothing less than for the integration project to emulate at least some aspects of nationalism. Most importantly, Renan associated nationalism with a “large-scale solidarity”—something that Renzi might love to see replicated on a European scale in response to the Eurozone crisis.

The clearest indication was Renzi’s invocation of the famously dismissive observation of Metternich to describe Italy in 1847, in which Metternich asserted that Italy was nothing more than “a geographical expression.” For Renzi, today’s Europeans must demonstrate that that Europe is something more than a “geographical expression.” According to Renzi: “There will be no space for Europe if we remain only a dot on Google Maps. We are a community, a people, we are not a geographical expression—to use the phrase applied to Italy by a great Austrian statesman of the nineteenth century” (Metternich was not specifically named). Continue reading

Case Comment: Opinion of Advocate General Cruz Villalon in International Stem Cell Corporation (C-364/13)

Prof. Aurora Plomer

Three years after the landmark Brustle ruling, the CJEU is poised to revisit the scope of exclusion on industrial and commercial uses of “human embryos” in Article 6(2) (c) of the EU Directive on Biotechnological Inventions. This time, the referral is from a national court of first instance, the Chancery Division (Patents Court) of the UK High Court of Justice Court. In the Opinion of Advocate General Cruz Villalon, whilst the question raised by the UK court is “virtually identical” to the questions raised in the Brustle reference of the German Federal Court of Justice (BGH), the answer should be different.

One of the questions raised by the BGH in Brustle was whether the term ‘human embryo’ encompassed ‘unfertilised human ova whose division and further development have been stimulated by parthenogenesis’ (parthenotes). In Brustle, the Grand Chamber of the CJEU held that parthenotes fell within the scope of exclusion of Article 6(2) (c) because the term ‘human embryo’ had to be given an autonomous meaning in EU law and should be “be understood in a wide sense” to include any human ovum, as soon as fertilised “… since that fertilisation is such as to commence the process of development of a human being.” The criterion of whether an organism is “capable of commencing the process of development” (the ‘commencement’ test) was relied upon by the UK intellectual Property Office to reject two patent applications by International Stem Cell Corporation (ISC) relating to human embryonic stem cell lines produced by parthenogenesis activation of ova. In its appeal, ISC argued that the Brustle exclusion should not extend to parthenotes because such organisms are incapable of developing into human beings. In this light, the UK High Court raised the following question for a preliminary ruling: “Are unfertilised human ova whose division and further development has been stimulated by parthenogenesis, and which, in contrast to fertilised ova, contain only pluripotent cells and are incapable of developing into human beings, included in the term ‘human embryos’ in Article 6(2)(c) of Directive 98/44 on the Legal Protection of Biotechnological Inventions?”.

France, Sweden and the Commission submitted that, in the current state of science, parthenotes cannot be considered identical to embryos at any stage of their development and parthenogenesis cannot be regarded as a technique capable of commencing the process of development. Portugal expressed concern about the risks of further genetic manipulation and would have left the decision to national courts. The UK submitted that the critical factor was the capacity of the cell itself and not its capacities after genetic manipulation (para. 60). By contrast, Poland submitted that, even though parthenotes cannot develop into human beings according to current scientific understanding, nonetheless respect for human dignity requires that they should be treated as human embryos as they “initially undergo the same stages of development as a fertilised ovum (para. 60).

The analysis of Advocate General Cruz Villalon proposes to read into the Grand Chamber’s ‘commencement’ rule in Brustle a functional equivalence test, so that the decisive criterion which should be taken into account for determining whether an unfertilised ovum is a human embryo is “whether that unfertilised ovum has the inherent capacity of developing into a human being, i.e. whether it really constitutes the functional equivalent of a fertilised ovum.” (at para. 73). On this basis, the mere possibility that a parthenote could be genetically manipulated so that it can develop to term and into a human being does not change the fundamental character of the parthenote before manipulation. According to current scientific knowledge parthenotes do not have the capacity to develop into human beings but “where the parthenote is manipulated in such way that it actually obtains the respective capacity, it can no longer be considered a parthenote and it cannot be, consequently patented.” (at para. 77). Continue reading

Not waving, but drowning ? : European law in the UK courts

Aidan O’Neill QC

The relationship between EU law and the municipal law of the United Kingdom seems to lend itself to allusions to water.   In Bulmer v. Bollinger [1974] Ch. 401 Lord Denning famously referred (at 418F) to the incoming tide of EU law, observing that “it flows into the estuaries and up the rivers. It cannot be held back, Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.”   And the Factortame litigation, too, was all about water, and the right to fish in it – specifically the Treaty based rights of Spanish fishermen not to be subject to discrimination on grounds of nationality when seeking to exercise their free movement rights to trawl for fish in UK waters.

The long decade of Factortame litigation – which unequivocally established that national courts in the UK should treat EU law based rights as being of a higher normative level than Acts of Parliament and that the UK could be found liable by UK courts to pay damages to those who suffered loss from Parliament’s enactment of an EU law incompatible statute – might now be seen to represent the high-water mark of the influence of EU law on domestic law.   For tides ebb, as well as flow.   The complaints of those of a Eurosceptic ilk of the Member States being “swamped” by a tsunami of EU regulation, of business drowning in EU rules have been increasingly dominant in our political discourse.   Eurocracy is associated with ever growing popular distrust.   The binding of Europe into monetary union is now seen as an act of hubris (the Greeks always have a word for it).     Even among the Europhiles, ideals and ideas seem to have drained from their grand post-War European project.   Scripture says: “without vision the people perish; but he that keepeth the law, happy is he”.   Yet what law is to kept, as the happy certainties of post-sovereign supra-nationalism embodied in une certaine idée de l’Europe no longer command common assent and have become unhappy uncertainties ?

Our courts are, of course, not insensible to this shift, this seeming turning of the political tide.   Recent judgments of the UK Supreme Court, in particular, have marked an increasing turn inward, as the continental is abandoned for the insular and the primacy of national constitutional fundamentals are re-emphasised over the provisions of international Treaties. But what “constitutional fundamentals”, you might well ask ? Classically, the only constitutional fundamental which existed in the UK under the Diceyan analysis of the constitution was the sovereignty of Parliament – and that has been considered and dealt with in Factortame.   What, then, is left within the UK constitution after Factortame ?  The judicial and extra-judicial writings of Sir John Laws seem to provide the beginnings of an answer. In R v Lord Chancellor Ex p Witham [1998] QB 575 he noted (at 581) that “in the unwritten legal order of the British state” it is “the common law [which] continues to accord a legislative supremacy to Parliament”. He also observed that the courts should recognise certain fundamental rights at common law whose “existence would not be the consequence of the democratic political process but would be logically prior to it”. In Thoburn v. Sunderland Council [2003] QB 151 he noted (at 185) that “the traditional doctrine [of Parliamentary sovereignty] has in my judgment been modified. It has been done by the common law, wholly consistently with constitutional principle” by the recognition of certain statutes as “constitutional” in the sense that, while not being entrenched, their provisions were not subject to implied repeal by later “ordinary” Acts of Parliament.   Parliament could modify their terms, but only expressly.   In Jackson v. Attorney General [2006] 1 AC 262Lord Steyn went further, suggesting (at § 102), that there might be some constitutional fundamentals “which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish”.   Despite some initial scepticism about the need or utility for reliance upon notions of common law constitutionalism in a post HRA/post EU Charter era (see for example Watkins v. Home Office[2006] UKHL 17 [2006] 2 AC 395 per Lord Bingham at § 29 and per Lord Rodger at §§ 59, 61) the ideas of Sir John Laws appear now to have triumphed into the new constitutional orthodoxy.     They were certainly central to the finding of the UKSC in Axa General Insurance Company Ltd v Lord Advocate [2011] UKSC 46 [2012] AC 868 that statutes of the devolved legislatures were subject to a form of common law review (for breach of the rule of law and/or fundamental common law rights).   In Kennedy v Charity Commission [2014] UKSC 20 [2014] 2 WLR 808 Lord Toulson at § 133 regretted what he saw as “a baleful and unnecessary tendency to overlook the common law. It needs to be emphasised that it was not the purpose of the Human Rights Act that the common law should become an ossuary.”   In R (Buckinghamshire County Council) v Transport Secretary [2014] UKSC 3 [2014] 1 WLR 342 Lord Neuberger and Lord Mance – in rejecting what looked like a fairly clear line of CJEU case law on the issue of what might properly be expected in and of a Strategic Environmental Assessment for large infrastructure projects (such as HS2) – suggested that there may be constitutional fundamentals which even EU law could not overcome.   As they noted (at § 207) that

“the United Kingdom has no written constitution, but we have a number of constitutional instruments. They include Magna Carta, the Petition of Right 1628, the Bill of Rights and (in Scotland) the Claim of Right Act 1689, the Act of Settlement 1701 and the Act of Union 1707. The European Communities Act 1972, the Human Rights Act 1998 and the Constitutional Reform Act 2005 may now be added to this list. The common law itself also recognises certain principles as fundamental to the rule of law.”

And in R (Osborn) v Parole Board [2013] UKSC 61 [2013] 3 WLR 1020 the UKSC emphasised (in Lord Reed’s judgment at § 62) that the starting point in fundamental rights cases should be “our own legal principles rather than the judgments of the international court”. Thus is the common law is resurrected, statutes and ancient charters deemed “constitutional”, old legal rules become fundamental principles, and rights discourse is de-Europeanised, re-patriated and re-branded as embodying the une certaine idée de l’Angleterre (or sometimes, even, de l’Ecosse). Continue reading

EU Commission President: Who and what did we actually vote for?

Christian Joerges and Florian Rödl

“How did we vote? Did we actually vote – or did the Volk simply roll the dice?”

Niklas Luhmann‘s sarcasm in the FAZ on October 22nd 1994 referred to the Bundestag elections of that same year. Back then, the black/yellow coalition narrowly won out over its red/green counterpart. Luhmann’s commentary is not only a pleasurable read – it also contains an analysis of surprising relevance for the electoral outcome of the 2014 European elections. Luhmann argued that the differences between the two coalition blocs were minimal. One reason for this was the fact that “politicians are no longer able to support political alternatives according to their preferences, due to constraints set by our economic system”. Fundamentally, this is not much different in contemporary Europe. Certainly the party landscape is larger, more diverse and more awkward than in Germany in 1994. However, even in this contested context, no party has a promising alternative when dealing for instance with the financial markets.

What was this most recent election about? One very prominent and popular manifesto from March 9th 2014 argued the election was about nothing less than the future of Europe itself. The novelty of “different candidates running for Commission President while also representing different models of Europe”, the election of so-called Spitzenkandidaten, is seen as a quantum leap for the Union.

Miguel Maduro, Bruno de Witte and Mattias Kumm, who have developed and publicly supported the idea of electing the Commission President by the European Parliament in their policy paper The Euro-Crisis and the Democratic Governance of the Euro: Legal and Political Issues of a Fiscal Crisis, put it somewhat differently. They did not speak of competing models. Instead, according to them the direct election of the Commission president would increase the political legitimacy of the Commission, thus strengthening the institution in its new role as European crisis manager. The control over national economic and fiscal policy would be democratically legitimated and thus more easily promoted and enforced. Accordingly, it would furnish functionalist technocrats with democratic legitimization.

This understanding of the Spitzenkandidaten would surely not have motivated the citizens of Europe, especially on the so-called European periphery, to participate in the election. In this respect the manifesto was both more attractive as well as more realistic. Nonetheless, the manifesto was not able to demonstrate that the leading candidates could be the personalization of its slogans. Socialist leading candidate Martin Schulz was supposed to represent the programme of an “’alternative Europe’, one in which the market is subjected to democratic rules”. When demonizing the political alternative of “’lesser Europe’, where the market subjugates democratic rules”, the manifesto had to refer to a politician not even on the ballot: David Cameron. For the manifesto, EPP candidate Jean-Claude Juncker, now Commission President-elect did not seem to stand for anything in particular. Continue reading

The sudden emergence of Charter principles in the Glatzel judgment of the CJEU

european-union-flags-at-t-0021Jasper Krommendijk

The judgment of 22 May 2014 in Glatzel is the first judgment in which the CJEU explicitly discussed article 51(1) and 52(5) of the Charter on Fundamental Rights, which distinguishes between (individual) rights and (programmatic) principles.

In Glatzel, the CJEU issued a preliminary ruling on the request of a German court about the compatibility with the Charter of Annex III to Directive 2006/126/EC (amended by Directive 2009/113/EC) laying down minimum standards relating to the physical fitness to drive a motor vehicle as regards visual acuity. The German court asked whether those physical conditions for drivers constitute discrimination on the grounds of disability and, hence, violate the principle of equal treatment (Article 20 of the Charter), and more specifically, the principle of non-discrimination on the grounds of discrimination (Article 21(1)) as well as the principle of integrating of integrating persons with disabilities (Article 26). The CJEU eventually concluded that it did not have sufficient information to conclude that the Annex is invalid.

There are several interesting points which could be looked at more closely, such as the way in which the CJEU used the UN Convention on the Rights of Persons with Disabilities (CRPD) (para. 45, 68-72) as well as the way in which the CJEU carefully examined whether there is an objective justification of different treatment (see below). These two issues –the application of the CRPD and the elaborate justification test- have been the focus of previous judgments of the CJEU (see for example for the former, Z (Case C-363/12 [2014]).

I. The distinction between rights and principles: a background and earlier cases of the CJEU

This post will, however, scrutinise the novel feature of this judgment: the fact that the CJEU has expressed itself for the first time on Article 51(1) and Article 52(5) of the Charter. These provisions make a distinction between rights and principles in the Charter. Article 51(1) provides:

The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.

Article 52(5) stipulates:

The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.

The inclusion of these provisions and this distinction between rights and principles was primarily the result of the opposition of UK, and also some other countries like the Denmark and the Netherlands, to the inclusion in the Charter of ‘social rights’ as legally enforceable claims. The UK eventually agreed with the inclusion of the Charter into the draft Constitution on the condition that the distinction between rights and principles was further clarified. The distinction was thus the result of a hard won battle and formed a crucial element in the Charter’s adoption. Continue reading

Access to the criminal case file: French example shows potential impact of Roadmap Directives

menottesJessica Finelle and Alex Tinsley

Yesterday, 2 June 2014, was the deadline for implementation of Directive 2012/13/EU on the right to information in criminal proceedings (‘the Directive’). This is the second of three directives adopted further to the 2009 Roadmap for strengthening procedural rights, the EU’s ambitious project to strengthen mutual trust between Member States’ judicial authorities by protecting criminal defence rights through EU law. The others were the Interpretation and Translation Directive, and the Access to a Lawyer Directive (together, the ‘Roadmap Directives’).

Designed to build upon the European Convention on Human Rights (‘ECHR’), these measures come full of promise: the citizen gets new, directly effective rights and the criminal court becomes a frontline enforcer EU law, potentially at the expense of inadequate national laws; the criminal judge can get help from Luxembourg, while the case is still live, lessening recourse to Strasbourg with the delayed justice this entails. That is the theory. To explore the potential impact on the ground, this post looks at the ongoing discussion surrounding access to the case file during garde à vue (police custody) in France.

Accès au dossier: the back story

Wind back to 2010. The European Court of Human Rights (‘ECtHR’) had given its important judgment in Salduz v. Turkey – establishing the right of access to a lawyer at the police station as an essential guarantee of Article 6 ECHR – and the Member States were scrambling to comply. The UK Supreme Court’s Cadder judgment found the Scottish system of police custody contrary to Salduz principles. In France, the Conseil Constitutionnel’s landmark ruling of 30 July 2010 found the garde à vue regime – whereby lawyers could not attend interrogations, despite the potential for suspects’ statements to be used against them later – unconstitutional. Urgent reforms followed in both jurisdictions.

For French lawyers, this was a watershed but only a first step. From their perspective, although they can now attend police interrogations, their presence remains somewhat ornamental. The relevant provision of the criminal procedure code (as in force until 1 June) entitled them to access the procès-verbal, the written record of the suspect being informed that they are in custody, the nature and time of the alleged offence, and their rights. But the underlying materials (e.g. the complaint, phone transcripts, testimonies, etc.) are unavailable. Without these, lawyers feel unable to advise clients usefully. Lawyers in Spain, who face the same problem, share their opinion.

The ECHR has not proved helpful in challenging this. The ECtHR had stated in its Dayanan judgment, shortly after Salduz, that the lawyer’s role at the police station involved a whole gamut of advisory and practical activities, and the brief Sapan judgment seemed to suggest explicitly that a lawyer needed to see the file to advise effectively. One brave court of appeal in Agen even followed this line in 2011, but the Cour de cassation was having none of it. And in a decision of 18 November 2011, the Conseil Constitutionnel confirmed that the new garde à vue regime was fine: police station proceedings were not part of the judicial process and did not call for equality of arms.

Nor does the arrested person derive much assistance from Article 5 ECHR. True, Article 5(4) entitles them to effective judicial review of detention; this challenge, as the ECtHR has often stated (para 124), should ensure ‘equality of arms’ and that means key documents need disclosing. But this applies only once the person is produced in court; in the shady confines of the police station – where confessions are so easily made and the outcome of a criminal case is often determined – it has no relevance.

Article 7(1) of the Directive

unlockedEnter Article 7(1) of the Directive. The idea is familiar: it requires Member States to provide a person deprived of liberty with access to documents essential for contesting the lawfulness of detention. But crucially, it speaks of a person ‘arrested or detained at any stage in criminal proceedings’. For the Paris Bar, it is obvious that this means an arrested person (or their lawyer) needs access to the police file before interrogation, so that they can contest the allegations – the grounds for their arrest – and advise the client on the best course of action.

Mobilising the defence

As with all Roadmap provisions, whether this one has an impact depends on the use made of it in practice. The Council of the EU, worn out from negotiating the measures, has emphasised the need for training to make them bite (para 12). Fair Trials International recently launched a project with five EU partners to train 240 defence lawyers across the EU with this in mind. National bars and defence associations, like the Asociación Libre de Abogados in Spain, are also organising themselves around these directives. Among them, the Paris Bar is in the maillot jaune. Continue reading

Zambrano: Unwritten?

Dr Iyiola Solanke

National courts have continued to deal with the consequences of Zambrano. Although Dereci and MacCarthy clarified that compulsion to leave related solely to practical consequences, the scope of ‘practical consequences’ was not determined by the CJEU. While the rupture of strong emotional and psychological ties within the family would not demonstrate compulsion to leave, would the removal of the rights to welfare engage the Zambrano right?

This question was discussed in a previous post on the ‘Zambrano Amendments’[1] introduced in 2012 at the same time as changes were made to the EEA Regulations 2006 implementing Citizenship Directive 2004/38 to give effect to the Zambrano decision.[2] These ‘Zambrano Amendments’ banned Zambrano carers from all mainstream benefits under national law – employed and unemployed Zambrano carers were henceforth excluded from eligibility for social security benefits, child tax credits and housing entitlements. In HC and Sanneh, it was decided that this blanket refusal of welfare benefits was legal – it did not compel a Zambrano carer to leave the EU. The substance of the Zambrano right to reside remained intact even if the Zambrano carer was left destitute and without adequate resources to care for the EU citizen child.

LJ Elias introduced in Harrison[3] what has become the standard dicta for understanding the Zambrano principle. Dismissing a broad approach to the CJEU ruling, he stated:

‘… The right of residence is a right to reside in the territory of the EU. It is not a right to any particular quality or life or to any particular standard of living. Accordingly, there is no impediment to exercising the right to reside if residence remains possible as a matter of substance, albeit that the quality of life is diminished. Of course, to the extent that the quality or standard of life will be seriously impaired by excluding the non EU national, that is likely in practice to infringe the right of residence itself because it will effectively compel the EU citizen to give up residence and travel with the non-EU national. But in such a case the Zambrano doctrine would apply and the EU citizen’s rights would have to be protected (save for the possibility of a proportionate deprivation of rights).’

The Zambrano principle is thus limited to situations where the EU citizen is irrefutably in practice forced to leave the EU. The CJEU has not yet had an opportunity to comment on this approach and it has continued to be applied, most recently in Hines v London Borough of Lambeth[4] where the removal of one parent was found compatible with the Zambrano principle. Surprisingly, it was not applied in R (Osawemwenze) v SS Home Department[5] where both parents were told to relocate with two small children who may have been EU citizens. These cases continue the theme raised in my last post on the compatibility of rights under EU and ECHR law, in particular the rights of the child. The cases also provide further insight into the national judicial response to the Zambrano ruling.

Maureen Hines, a Jamaican citizen without permission to remain in the UK, was refused housing assistance despite being mother to a 5-year old boy, Brandon, who was born in the UK and thus an EU national. The reviewer for Lambeth decided that even if the refusal caused Hines to leave the UK, Brandon’s father, who had an EU right to permanent residence in the UK, could look after him: although his parents had separated, Brandon did spend two days and nights a week with his father. Continue reading

Case comment: Google Spain SL, Google Inc v Agencia Espanola de Proteccion de Datos, Mario Costeja González

juropean-justiceGuy Vassall-Adams, Matrix Chambers

This important judgment concerns the interpretation of Directive 95/46/EC (the Data Protection Directive) and was handed down by the Grand Chamber of the European Court of Justice on 14 May. Although the ruling is of immediate relevance to the publication of search results by search engines such as Google, the judgment is of general relevance to the publication of information on the internet within the European Union.

The complaint was brought by Mr Gonzalez, a Spanish national living in Spain, against the publisher of a Spanish daily newspaper (La Vanguardia) and against Google Spain and Google Inc. The complaint related to the fact that when a search was undertaken on the Google search engine (“Google Search”) against the Claimant’s name the results provided links to articles in La Vanguardia from 1998 mentioning Mr Gonzalez in connection with bankruptcy proceedings. Mr Gonzalez wished to put those matters behind him and although he had failed in his complaint against the newspaper (which could benefit from the journalistic exemption under the Directive), he contended that the continued publication by Google Search of those search results breached his rights under the Directive. He sought an order requiring Google to remove or block the search results.

Continue reading