Prof Kenneth Armstrong, University of Cambridge
Ever tried. Ever failed. No matter. Try again. Fail again. Fail better.
Just over a year since the United Kingdom (UK) commenced legal proceedings against the Council of the EU challenging its decision to authorise the use of enhanced cooperation for the adoption of the proposed Financial Transaction Tax (FTT), the Court of Justice has, as anticipated, dismissed the UK’s application (Case C-209/13, United Kingdom v Council). This is another defeat for the UK following on from its unsuccessful challenge to the powers of the European Securities and Markets Authority to control ‘short-selling’. Whether the UK will have more success in the third of its triptych of legal challenges to measures adopted in the wake of the financial crisis – the cap of ‘bankers’ bonuses’ – is yet to be determined. However, in the lead up to the European Parliament elections, with the United Kingdom Independence Party riding high in the polls and the UK prime minister declaring that he will not act as prime minister following the 2015 general election unless there will be a referendum on the UK’s continuing membership of the EU, it is clear that these defeats before the Luxembourg court have both political and legal saliency.
Kim Lane Scheppele, Princeton University
On 8 April, Hungary lost again at the Court of Justice of the European Union (ECJ). The European Commission had alleged that that Hungary violated the independence of its data protection officer and the ECJ agreed. The case broke little new legal ground. But it is important nonetheless because it signals serious trouble within the EU. The case exposes Hungary’s ongoing challenge to the EU’s fundamental principles. And it exposes the limitations of ordinary infringement proceedings for bringing a Member State back into line.
The Commission may have won this particular battle, but it is losing the war to keep Hungary from becoming a state in which all formerly independent institutions are under the control of Fidesz, the governing party. The Commission clearly sees the danger of one-party domination and it has attempted to challenge the Hungarian government before. But the Commission has so far not picked its battles wisely or framed its challenges well. It could do better. The case of the data protection officer is a case in point.
This week the European Commission issued a Communication about a new framework for protecting the rule of law within EU Member States. Is this the long hoped for mechanism that allows the EU to deal with internal threats to liberal democracy (the democratic deficits within Member States, so to speak) effectively? The clear-cut answer is: yes and no. The Commission has evidently understood that attempts systematically to undermine rule of law principles require a different response than individual infringement proceedings. Depending on the circumstances, a structured process of naming and shaming which is now available to the Commission might work. But if it doesn’t, then the Commission will remain just as helpless as before: no new sanction mechanisms are envisaged (and, to be fair, none might be feasible without treaty change). In that sense, the new framework formalizes — or, in the words of Commission President Barroso, “consolidates” – the Commission’s de facto approach in recent years. This is not a trivial achievement; and it’s probably the most the Commission could do on the basis of existing law and with available institutions such as the Fundamental Rights Agency. It may well deter some governments. But for illiberal national politicians determined to go head to head with the Commission, there is in the end still only Article 7 TEU – and that remains as difficult to put into effect as before.
The Commission’s initiative comes against the background of threats to liberal democracy in Hungary and Romania since about 2010 — and an acute sense among many observers (and also among political actors) that the Union has been ill-equipped to deal with a challenge one might call “constitutional capture.” Constitutional capture is different from pervasive corruption (a major problem still in Bulgaria and Romania, for instance); but it is also different from individual rights violations, grave as the latter might be. Constitutional capture aims at systematically weakening checks and balances and, in the extreme case, making genuine changes in power exceedingly difficult. Hungarian Prime Minister Victor Orbán actually passed a new constitution for his country (a case of formal constitutional capture); his Romanian counterpart Victor Ponta, in the summer of 2012, blatantly tried to disable checks and balances (the constitutional court in particular) to get rid of his political arch-enemy, the President of Romania (this being a matter of attempting an informal constitutional capture).
In both cases, the Commission got into a direct confrontation with the respective national governments. While the EU arguably helped to avoid the worst, the experience seemed to point to a significant weakness of the Commission as a guardian of the treaties: it could take governments to court for individual infringements of EU law, but it proved incapable of addressing systematic attempts to undermine the rule of law. In some cases, it could not “read” certain laws for what they were, but had to reinterpret them in an EU framework such that their real political meaning was officially missed. When Orbán’s government effectively decapitated the Hungarian judiciary by drastically lowering the retirement age of judges, the EU sued Hungary for age discrimination. Brussels won its case, but the judges were never re-instated; the political situation remained more or less as Orbán’s government wanted it. Continue reading
The Institute of European and Comparative Law at the University of Oxford is hosting an event from the 27 to 28 March. Full details are below.
The Image(s) of the ‘Consumer’ in EU Law: Legislation, Free Movement and Competition Law
Thursday 27 March 2014 until Friday 28 March 2014
Venue: St Anne’s College
Organisers: Professor Stephen Weatherill & Dr Dorota Leczykiewicz Continue reading
Dr Iyiola Solanke
According to reports from the BBC, ‘jobless migrants from within the European Union will be denied access to housing benefit from April this year’. Housing benefit is an ‘in –work’ benefit which provides support with rent for those who are unemployed or on a low income. As it is means tested, it may not cover all rent costs. It is administered through local councils to private and social landlords. Universal credit will replace housing benefit in 2015. Before then, both Home Secretary Theresa May and Work and Pensions Secretary Iain Duncan Smith intend to introduce plans to ‘prevent exploitation of the UK welfare system’ by ‘jobless’ EU migrants.
Research suggests that EU migrants are less likely than UK nationals to claim any form of benefits so the prevention of exploitation by targeting EU migrants is questionable. Furthermore, who are the jobless EU migrants – are they a composite group? Finally, as these measures will not apply to jobless nationals, would such action be compatible with EU law? There is indeed little free movement for jobless migrants under EU law but when is an EU migrant ‘jobless’?
Focusing on the ‘jobless’ draws a broad distinction between this group and EU migrant ‘workers’: the former have few rights under EU law while the latter have many. Article 45 TFEU provides free movement to workers within the EU. A worker under EU law is a person who is employed: in Lawrie Blum and Collins the CJEU defined a worker as a person who provides services under direction of another for remuneration. The work itself must constitute a ‘genuine economic activity’: in Steymann the provision of maintenance tasks for was seen as such whereas in Bettray work conducted as part of a rehabilitation scheme was not. The number of hours worked and level of salary are irrelevant to the definition.
The Citizenship Directive (CD) adopted in 2004 guarantees migrant EU workers and other ‘qualified persons’ equal treatment with nationals in the territory of a host member state. Migrant EU workers benefit from non-discrimination on the grounds of nationality – they and their family members are to be treated in the same way as any national worker, in relation to work, education and access to benefits. Conditions for this equal treatment are set out in Chapter III of the CD. Continue reading
We’re in and out of the office for the next few weeks, so we’ll be scaling our blogging back until the New Year. Happy Holidays from the editorial team.
If you are interested in contributing to EUtopia Law please get in touch! You can email Laura here.
Dr Gunnar Beck
As I predicted in the Handelsblatt, Germany’s leading financial daily, Merkel emerged as the clear victor in Germany’s recent elections. It now seems there will be another Grand Coalition with the Social Democrats. Merkel’s popularity is due in no small measure to her management of the euro crisis where so far she has been able to present herself to many Germans as a tough negotiator insisting on strict assurances of tighter budgetary discipline in return for any German money. The truth is that the money is as good as gone but Merkel has profited from the extraordinary political imbecility of her opponents who whenever Merkel reluctantly agreed to yet further concessions to aid the euro, decried her hesitation to say she should have given in long before. Before the election, the SPD was calling for a German-led ‘Marshall plan’ for the euro. The SPD performed poorly in the elections, but their party’s policy on the euro is likely to prevail. Merkel will soften her stance, and offer more solidarity in return for less and less solidity – not because of the Social Democracts and because post-war Germans, and especially Germany’s political elite, can no longer pronounce the word ‘national interest.’
The reasons for this are many, but in one way or another all relate to: i. Germany’s historical guilt complex, ii. the triumph of short-term calculus over long-term evaluation, and iii. the rise of oligarchic democracy in the West.
First, Chancellor Merkel, like any mainstream German politician, is a convinced pro-integrationist. ‘If the euro fails’, she has said again and again, ‘Europe fails.’ Those words, to the sober-minded, are devoid of logic. Yet, they signify a deep-seated and abiding commitment to EU integration and the single currency, not readily understood outside Germany. Germany’s political establishment has been committed to ‘ever closer EU integration’ ever since West Germany became a state in 1949. The euro is part of that integration process. Any German Chancellor who would pull the plug on the euro, would be subject to unprecedented foreign political and media criticism and go down in history as a dangerous nationalist who placed narrow self-interest over wider responsibilities, turned his back on six decades of ostensibly consensus–based integration politics, plunged Europe into a long recession, and would get no credit for burying the single currency which never suited Europe. Merkel could probably rely on majority popular support, but, like any other German politician, she could not withstand market turmoil, the lobbying pressure by the financial services and multi-national industrial sectors, or the unprecedented foreign and domestic political and media criticism of the kind not experienced by any Germany Chancellor. Continue reading
We’re scaling our blogging back over the break, but keep an eye out for developments on Twitter.
If you are interested in contributing to EUtopia Law please get in touch! You can email Laura here.
Enjoy the summer and we’ll see you at the start of the new term.
Dr Iyiola Solanke
In July 2013, a group of activists, academics and lawyers gathered at Matrix Chambers and the University of Leeds School of Law to continue the conversation on black experiences of policing in the EU. This topic has recently received media coverage, not only here in the UK but also in Germany (the NSU trial), Sweden (the riots in Husby and elsewhere), and Greece (the ‘Golden Dawn’ effect). The trial of George Zimmerman for the murder of black teenager Trayvon Martin in the USA provided a global backdrop for the Roundtables. The ‘not guilty’ verdict delivered by an all white Southern female jury was followed by widespread outrage and a discussion of the ‘Stand Your Ground’ rules under which Zimmerman was tried. Perversely, while African-American children worried about whether they could walk the streets safely, somebody invented ‘trayvoning’ (adopting the pose of Trayvon’s lifeless corpse).
The Roundtables focused on the policing of racist violence as well as violent and racist policing. Discussions were set within the context of the new Europol Package proposed by the Commission in March 2013. The Europol Package aims to anchor the powers for policing in the EU in a binding Regulation and merge the operational activities of Europol with the training activities of CEPOL. Under the plans, CEPOL would become a department within Europol. It is questionable whether Articles 87 and 88 TFEU provide the powers for the envisaged reorganization and expansion of Europol. It is also questionable whether Europol could improve black experiences of policing across the EU. Continue reading
Kim Lane Scheppele
Yesterday Europe acted to hold the Hungarian government to the constitutional values that it eagerly endorsed when it joined the European Union nearly a decade ago.
The action came in the form of the Tavares Report, which sailed through the European Parliament with many votes to spare. The report provides a bill of particulars against the Fidesz government and lays out a strong program to guide European Union institutions in bringing Hungary back into the European fold. With the passage of this report, Europe has finally said no to Prime Minister Viktor Orbán and his constitutional revolution.
The Tavares Report is by far the strongest and most consequential official condemnation of the Fidesz consolidation of power over the last three years. And it creates a powerful set of tools for European institutions to use in defending the long-term prospects for Hungarian democracy.
The report passed with a surprisingly lopsided vote: 370 in favor, 248 against and 82 abstentions. In a Parliament split almost evenly between left and right, this tally gave the lie to the Hungarian government’s claim that the report was merely a conspiracy of the left. With about 50 of the 754 MEPs absent, the total number of yes votes was still larger than the total number of MEPs of all of the left parties combined. In short, even if all MEPs had been present, the left alone still couldn’t account for all of those votes. And since the 82 abstentions had the effect of allowing the report to go forward, they should be read as soft “yeses” rather than undecided or negative votes. Continue reading