Category Archives: Discussion and Debate

“Constitutional Revenge” in Hungary

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This post originally appeared on Paul Krugman’s blog on The New York Times and is cross-posted here with permission.
One year ago, Hungary’s slide from a multiparty democracy into a one-party state was all over the headlines.    The European Union responded, threatening sanctions.  The Council of Europe (keeper of the European Convention on Human Rights) repeatedly rapped Hungary’s knuckles for violating European norms on democracy and the rule of law.   The United States expressed concern.    The forint (Hungary’s currency) dramatically weakened, even against the weakening Euro.
One year is a long time in politics and the current one-party Fidesz government has simply waited out the storm.   Sure enough, the European Union has gone back to business as usual, even increasing Hungary’s budget allocation.  The Council of Europe recently certified that Hungary is now compliant with a number of European standards.    The US is still concerned, but more quietly.  And the forint has started to recover from its late 2011 spike against the Euro.    It appears that Hungary is once again a normal country – or at least a tolerated one.
The world has relaxed because the Hungarian government appeared to modify some of the most offending reforms after pressure from the European Union, particularly with regard to the appointment of judges and media regulation. It also seemed that the Hungarian Constitutional Court was doing its job to keep the government in line.  Contrary to all predictions (including mine), the Constitutional Court has spent the last several months striking down many of the most worrisome laws passed by the Fidesz government.
The Court declared unconstitutional the law that arbitrarily lowered the retirement age of judges.  The Court nullified the law that made it a crime to be homeless in Hungary.  The Court quashed the requirement that students on state-provided financial aid remain in the country after graduation.  The Court voided on technical grounds an earlier constitutional amendment that handed power to the head of the National Judicial Office and to the chief public prosecutor to assign any case to any court, extended the old statutes of limitations for communist-era crimes, and established a new voter registration scheme.  And then the Court declared the voter registration scheme substantively unconstitutional as well.      Just this week, the Court declared unconstitutional the law that banned display of extremist symbols including the red star and the swastika, following prior decisions from the European Court of Human Rights.  And the Court declared unconstitutional parts of the law that removed the official legal status from more than 300 churches.
Even though the government had cut the jurisdiction of the Constitutional Court, changed the system for electing judges, expanded the bench and packed it with party loyalists, Court President Péter Paczolay has been able to skillfully mobilize bare majorities to hand setbacks to the government.  These strong decisions have honored basic rights and defended important constitutional principles, often agreeing with petitions sent to the Court by the surprisingly active Ombudsman Máté Szabó.
But the government is now seeking revenge for the various defeats it has suffered by introducing into the Parliament a 15-page constitutional amendment that reverses its losses.   The mega-amendment is a toxic waste dump of bad constitutional ideas, many of which were introduced before and nullified by the Constitutional Court or changed at the insistence of European bodies.    The new constitutional amendment (again) kills off the independence of the judiciary, brings universities under (even more) governmental control, opens the door to political prosecutions, criminalizes homelessness, makes the recognition of religious groups dependent on their cooperation with the government and weakens human rights guarantees across the board.  Moreover, the constitution will now buffer the government from further financial sanctions by permitting it to take all fines for noncompliance with the constitution or with European law and pass them on to the Hungarian population as special taxes, not payable by the normal state budget.

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Union Citizenship comes of age: Case C-46/12, LN v Styrelsen for Videregaende Uddannelser og Uddannelsesstotte

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Dr Iyiola Solanke

It is perhaps fitting that in 2013, 21 years after it was introduced in the Treaty of Maastricht, Union citizenship appears to have come of age. Although described in Grzelczyk as the ‘fundamental status of nationals of the member states’ the privileges of this status have to date primarily been enjoyed only when nationals left their member state. It complemented national citizenship rather than existed alongside it. The only exception to this rule was seen in the recent Zambrano case, where AG Sharpston suggested that stationary Union citizens should enjoy rights as well as migrant EU citizens. The Court did not affirm this reasoning in its decision but did find that the baby Zambrano citizens should not be deprived of the ‘genuine enjoyment’ of EU citizenship in their member state of birth. The Third Chamber of the CJ has now affirmed the idea that Union citizenship can be enjoyed at home. This significant shift in EU citizenship law was announced in a short judgement revolving around Mr N, a young man who was refused education finance in Denmark, a social advantage that has been considered by the Luxembourg court many times.  Continue reading →

Case Comment: C-523/11 and C-585/11 Prinz and Seeberger – AG Sharpston strikes again

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Adrienne Yong

Yet another chapter of the European citizenship saga sought clarification by AG Sharpston in the Prinz and Seeberger Opinion delivered last week on February 21, 2013. Concerning one of the most prevalent categories of citizens claiming rights under Arts 20 and 21 TFEU – students – Prinz and Seeberger discusses a classic situation that has pervaded the over 20 years of Union citizenship development. Effectively, AG Sharpston aims to explicate the notion of proportionality in citizenship, which has for years escaped valid clarification. She discusses the different strands of objectives of integration, with more substantial meaning than it would appear at first. Continue reading →

Pfleiderer revisited: the AG Opinion in Donau Chemie

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Christopher Brown

img-documentsOn 7 February, AG Jääskinen issued his Opinion in Case C-536/11 Donau Chemie, a much anticipated case (at least among competition lawyers) concerning the compatibility with EU law of an Austrian law which prohibits third party access to the court files in “public law competition proceedings” absent the parties’ consent.  The questions referred by the Austrian Cartel Court thus required the CJEU to venture into similar terrain to that covered by its Pfleiderer judgment (see this previous post for an application of Pfleiderer in a domestic case).

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Case Comment: AG’s Opinion in Giersch & Others (C-20/12)

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Michèle Finck, University of Oxford

The reference for a preliminary ruling brought by the Administrative Court of Luxembourg in the Elodie Giersch matter essentially concerns the question of whether a recent Luxembourg law that makes funding of higher education studies conditional upon residence in Luxembourg is compatible with European Union law, more specifically the requirement of non-discrimination on the basis of nationality. The aid can be received for studies undertaken within Luxembourg but also anywhere else.

The law is particularly controversial as it excludes from its benefit the children of frontier workers who travel every day from Belgium, Germany and France to the Grand Duchy to work. Currently, around 44% of those employed in Luxembourg are frontier workers. Over 600 applicants had brought proceedings before the national court after they had been refused financial aid. They argued that the fact that they were treated differently from the children of workers residing in Luxembourg constitutes an infringement of the principle of free movement of persons. Continue reading →

Anti-Competitive Agreements: knowing your ‘object’ from your ‘appreciable’

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Angus MacCulloch

In October 2012 Christopher Brown posted an interesting blog on AG Kokott’s opinion in Case C-226/11 Expedia. The full judgment was delivered on 13 December 2012 and it seems appropriate to look at whether the Court followed the same line; or whether there was an ‘appreciable’ difference.

In brief the case was a preliminary ruling reference from the French Cour de cassation asking whether a National Competition Authority (NCA), or presumably a domestic court, could impose penalties in relation to an agreement or anticompetitive practice which fell within the terms of the European Commission’s de minimus Notice. The question arose in the context of proceedings brought by the Autorité de la concurrence (the French NCA) against a joint venture ‘Agence VSC’ between SNCF (the French Rail operator) and Expedia (the online travel company) which was to operate travel agency services. There was no dispute before the Cour de cassation that the agreement had the object of distorting competition, potentially contrary to Article 101 TFEU, but there was argument that the agreement fell below the market share thresholds set out in the Commission’s de minimus Notice.

The Court’s judgment and the AG’s Opinion both cover two main issues: the impact of the Commission Notice on the enforcement activity of an NCA, and the whether an ‘object’ agreement under Article 101 TFEU also has to have an ‘appreciable’ effect on competition before it can be considered to be an infringement. Continue reading →

Radu – A Case of Failed Dialogue

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Anita Davies

The CJEU handed down its decision in Ministerul Public – Parchetul de pe lângă Curtea de Apel Constanţa v Ciprian Vasile Radu last week. In summary, the Court was asked to clarify the extent to which countries are required to take into account rights to a fair trial and liberty when considering whether to execute an a European Arrest Warrant (EAW). It is a short and somewhat surprising judgment, which does not sit well either with the Court’s decision in NS v Secretary of State for the Home Department last year, the original opinion of Advocate General Sharpston, or indeed the questions referred for preliminary ruling. Continue reading →

The Communautaire Predisposition in the judicial reasoning of the Court of Justice of the EU – A Review of The Limits of Legal Reasoning and the European Court of Justice by Gerard Conway, Cambridge, CUP, 2012

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Dr Gunnar Beck

Gerard Conway’s thought-provoking study starts from the familiar distinction between the familiar two broad types of judicial interpretation: the literal or originalist versus the purposive or teleological approach. The Court of Justice of the EU, Conway argues, relies on the second type to a greater extent than most other courts. More specifically, he demonstrates that the Court of Justice has shown a marked tendency towards a meta-teleological approach by which the Court is less concerned with specific objects and aims of legislation or specific treaty provisions but refers to the purposes of the EU treaty order at a very high level of systemic unity. This has favoured and enhanced the tendency toward further integration and harmonisation in Union law.

Conway does not commit himself to the view that the Court adopts a markedly different approach from most others courts in all, or even most cases; rather the Court’s meta-teleological approach has been most evident in a relatively restricted number of key cases concerned with the division of competences between the Union and Member States, which have had a disproportionate and absolutely crucial effect on the development of Union law. Through the development of a de facto doctrine of precedent the Court has reproduced and entrenched the key principles laid down in these fundamental ‘constitutional’ cases throughout the entire body of Union law. As a result, it has driven the borderline between Union and national law far more deeply into the realm of national competences than many of the original founding fathers, or at least the signatories, of the Treaties might have anticipated or than many of the peoples of the EU would voluntarily endorse if they were given the choice on the scope and limits of EU law in their own jurisdictions. Continue reading →

Clarification of the Article 9(2) ECHR qualification? Eweida and Others v the UK

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BlogPhotoDr Iyiola Solanke

Can an employer compel a Christian employee to: a) remove jewellery worn to manifest religious belief or b) carry out workplace duties which are felt to contravene central tenets of their faith? How far must employers go to accommodate religion and belief? Do they have to accommodate believers, whose ‘commitment to religion ‘involves not just participation in the worship and corporate life of the religion concerned but adherence to its system of values’ in a way that influences their behaviour in their daily lives, outside the context of the religion’s corporate life? Must organisational aims respect religion?

Since the introduction in England and Wales of the Employment (Religion and Belief) Regulations in 2003 – in avowed implementation of  Directive 2000/78/EC (the Employment Equality Directive) – , domestic courts in the UK have understood the requirements of EU law to place only a limited obligation upon employers to recognize and accommodate the religious beliefs of employees in the workplace: Muslim claimants such as Mohmed and Azmi[1] were unsuccessful in gaining legal support to wear a long beard or the hijab; Christian claimants such as Mba[2] have not persuaded judges that their religion should relieve them from Sunday working.   Of course (national law implementing) EU law in this area is intended to be interpreted in a manner which is also consistent with the requirements of the ECHR (see R (on the application of AMICUS–MSF section, NUT and others) v. Secretary of State for Trade and Industry [2007] ICR 1176 (EWHC, Admin) ).   Strasbourg jurisprudence seems to be supportive of this stance with its dual approach to Article 9 ECHR on freedom of religious expression. In Kokkinakis[3], it said that religious freedom “implies freedom to manifest ones religion. Bearing witness in words and deeds is bound up with the existence of religious convictions” but it is agreed that this right is not absolute – Continue reading →