Dr Albert Sanchez Graells
[This is an extended version of the comment previously posted on Albert's personal blog http://howtocrackanut.blogspot.co.uk/2013/03/with-little-help-from-my-friends-ag.html].
According to the current rules on public procurement (mainly, Directive 2004/18) undertakings interested in tendering for a given contract may be subjected to certain personal, financial, professional and technical selection requirements. In order to ensure maximum possible participation in a given tender, the rules in articles 47(2) and 48(3) of Directive 2004/18 expressly indicate that ‘An economic operator may, where appropriate and for a particular contract, rely on the capacities of other entities, regardless of the legal nature of the links which it has with them’ (emphasis added).
The Italian rules transposing Directive 2004/18 [ie Article 49(6) of Legislative Decree No 163/2006] provided that
‘[f]or works contracts, the tenderer may rely on the capacities of only one auxiliary undertaking for each qualification category. The invitation to tender may permit reliance on the capacity of more than one auxiliary undertaking on account of the value of the contract or the special nature of the services to be provided, subject to the prohibition on the shared use by the tenderer of the individual economic, financial, technical and organisation capacities […]’ (emphasis added).
A challenge was brought against the Italian provisions on the basis that the default rule that restricted the number of ‘auxiliary undertakings’ to one, save in exceptional circumstances, unduly limited the freedom of undertakings to rely on third parties when deciding to tender for public contracts. The competent Italian court submitted a reference for a preliminary ruling to the CJEU in order to clarify the compatibility of the domestic rules with those of the public procurement directive.
In his Opinion of 28 February 2013 in case C-94/12 Raggruppamento Temporaneo Imprese (‘RTI’), Advocate General Jääskinen has clearly indicated that the rules of arts 47(2) and 48(3) of Directive 2004/18 preclude national legislation which prohibits, except in special circumstances, reliance on the capacities of more than one auxiliary undertaking in order to fulfil the selection criteria concerning the economic and financial standing and/or technical and/or professional ability of an economic operator tendering for a contract as main contractor.
Applications are invited for the position of Legal Secretary (Reférendaire) to Judge Vajda, which is expected to fall vacant in about November 2013.
The post involves providing advice on both substantive and procedural points of law arising in cases before the CJEU to Judge Vajda, preparing drafts of judgments and procedural documents, as well as contributing to the deliberations of the Court through written notes.
The internal working language of the CJEU being French, all written work will have to be carried out almost exclusively in French. Continue reading
Dr Jeremias Prassl
The European Court of Justice’s decision of January 31, 2013 is the latest in an increasingly frequent series of references for preliminary rulings concerning the interpretation and application of Regulation 261/2004 on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights. Following on the heels of the latest failed industry attempts to topple that regulatory regime for incompatibility with the 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air and general principles of EU law such as proportionality and non-discrimination, it contains a somewhat unexpected twist: on this occasion, the operating air carrier argues that large-scale airspace closure should not fall into the category of ‘extraordinary circumstances’ which may exempt airlines from compliance with parts of the Regulation. Instead, the introduction of an additional category of ‘super-extraordinary circumstances’ is contended for, in the hope of releasing air carriers from all obligations under the Regulation. Continue reading
We wanted to draw readers’ attention to a few other blogs dealing with matters of EU law. First of all, we are delighted to draw attention to a new blog, europaeuslaw, founded by our loyal contributor Professor Peter Lindseth (U.Conn.), which will serve as the blog of the (future) European Law Section of the American Association of Law Schools. Its primary purpose is to serve as a forum for debate on European law among scholars based in North America. Given the degree of EU law scholarship on the other side of the pond, it promises to be a great source of comment and analysis.
We are also pleased to mention the new blog from the Amsterdam Centre for European Law and Governanance. We have already cross-posted one piece - by the Centre’s Director, Professor Deidre Curtin – and no doubt there will be more. Staying in the Netherlands (indeed, in Amsterdam), we also like the European Law Blog, most of whose editors are at VU Amsterdam. Then there is Martin Holterman’s blog, which carries an impressive amount of content and the King’s Student Law Review European Law blog. And the EJIL: Talk! blog can also be relied on for at least some posts on EU law-related topics.
These are only a few of the English language blogs available and there are many more in other languages – for example Verfassungsblog frequently carries pieces on EU law.
Prof. Peter Lindseth
Just a brief update on one of my earlier posts that explored whether the idea of ‘fault, not solidarity’ could serve as a normative argument to support the sort of wealth transfers (‘burden-sharing’) that will no doubt be required in order to resolve the Eurozone crisis.
One way in which such ‘burden-sharing’ might manifest itself would be in the recapitalisation of banks in peripheral countries like Spain, via the ESM. The precarious state of bank balance sheets throughout the Eurozone, including Spain, is without doubt one of the ‘legacy problems’ that my ‘Fault, Not Solidarity’ post highlighted, drawing on an idea set out in a report by the INET Council on the Eurozone Crisis. This is precisely the sort of problem that derives from ‘the original flawed design/perverse incentives of the EMU’ for which all members of the Eurozone should bear some responsibility. Addressing this problem via the ESM was certainly one of the implications, if not explicit agreements, of the Eurozone Summit in June. Eurozone leaders recognized in the very first sentence of their summit statement that it was ‘imperative to break the vicious circle between banks and sovereigns’. As Ambrose Evans-Pritchard wrote yesterday in The Telegraph: ‘The document said the ESM must be allowed to “recapitalise banks directly”, clearly referring to Spain’.
It seems, however, that the finance ministers of Germany, the Netherlands, and Finland apparently don’t see it that way. As a joint statement of September 25 made clear, in their view ‘the ESM can take direct responsibility of problems that occur’ only after a country has relinquished fiscal control under an ESM bailout and supervision memorandum. Otherwise, ‘legacy assets should be under the responsibility of national authorities’.
So much for recognizing shared ‘fault’ as a basis for dealing with this key portion of the ‘legacy problem’ that my prior post highlighted. As Evans-Pritchard concludes, the September 25 joint statement would seem to prevent the ESM ‘from recapitalising Spain’s crippled banks directly under a €100bn (£79bn) loan package agreed with Madrid in June. The burden will fall entirely on the Spanish state’. And he further elaborates: ‘The extra debt burden is likely to be around €60bn or 6pc of GDP, depending on bank stress tests to be unveiled on Friday. Pessimists fear it could rise to 15pc of GDP once full losses from the property crash are crystallised’.
I suppose we could call the proposed German-Dutch-Finnish approach to bank recapitalisation as ‘Neither Fault Nor Solidarity’.
Saturday marked one year since the formal launch of the EUtopia law blog. In that time we have carried pieces on topics as varied as the Eurozone crisis, the use of bus lanes by minicab operators, residence rights under EU law, the Emissions Trading Scheme, the Charter of Fundamental Rights, Scottish Independence and minimum alcohol pricing. In total there have been more than 180 posts, which equates roughly to a post every other day. We have had 80,091 unique ‘hits’ from readers all over the world.
We would like to say a big thank you to our contributors for making the blog what it is. We also thank you, our readers, for taking the time to read and comment. And we would welcome your feedback: what we do right, what we do wrong and what we don’t do but should. Finally, we would be delighted to hear from anyone in academia, practice or public service who would like to contribute to the blog – just drop us a line.
(This piece was initially published on 13 September 2012 on the Guardian’s website.)
With Catalan secessionism on the march, as well as debates about Scottish independence and a looming referendum, the question of EU membership for possible new states has become politically charged. By declaring that any state seceding from a member state would not automatically become a European Union member, EU commission president José Manuel Barroso has dealt a serious blow to a key part of the SNP’s plans for a “soft” form of Scottish independence.
EU membership is vital to the SNP’s plans in several ways. Automatic membership would emphasise the ease of the transition from being part of the UK to being an independent state, ensure continuity for Scotland’s economy and the business world and simplify negotiations with the UK government over independence. While an application for EU membership by an independent Scotland ought to be relatively straightforward, it would mean that the new state would have to spend two or three years outside the EU. Those negotiations might be complicated if Scotland were seen as a precedent for other “discontented” regions like Catalonia or Flanders, and perhaps by issues like the Schengen accord.
The Commission has stated in a written note that respect for gay rights is a criterion for EU accession. Armenia is keen to become a member state, but Armenian law does not prohibit any sort of discrimination on grounds of sexual orientation, does not recognise same-sex partnerships and has no legal provision for individuals wishing to change gender. It repealed legislation criminalising homosexual intercourse in order to meet conditions for its accession to the Council of Europe in 2001.
Public attitudes are also considered a problem, with gay-friendly bars being vandalised and protesters at a small pro-toleration rally abused with slogans about gay people being a disease and a threat to children.
This looks likely to result in Armenia failing to meet the eligibility criteria for accession, with the Commission’s note quoting the 1993 “Copenhagen criteria”, the TEU arts 2, 10 and 19, and the European Charter of Fundamental Rights art 21.
Prof. Peter Lindseth
The pace of the Eurozone crisis often defies even the most conscientious observers. Mario Draghi’s comments last week that the ECB would do ‘whatever it takes’ within its mandate raised the prospect of ECB intervention in the secondary sovereign-debt market. A follow-up joint declaration from Merkel-Hollande (that ‘they are committed to do everything to protect the eurozone’) was also bold, echoed by a similar declaration from Merkel-Monti. But then there were news reports over the weekend suggesting that ‘everything’ apparently does not include purchases of Spanish debt by the Eurozone’s current bailout fund (the EFSF) or any additional concessions to Greece.
Behind the distractions of day-to-day events, however, certain fundamentals in the crisis persist. With Spain seemingly unraveling, the adequacy of the existing crisis mechanisms remains as questionable as ever. Commentators continue to argue that the functional demands of the crisis will eventually force Germany and other surplus countries to accept something like Eurobonds (debt-mutualization), if not in name then at least in substance. In this regard, the publication last week of a report by group of 17 leading European economists, organized by the Institute for New Economic Thinking (INET), a Soros-backed outfit, has garnered a good deal of media attention, not merely for its dire warnings of impending disaster, but also its effort to outline a comprehensive solution to the crisis.
Rather as I predicted in an earlier post, Addison Lee has this week lost its claim against Transport for London in respect of the latter’s bus lane policy under which black cabs are allowed to use (most) bus lanes at all times whereas minicabs can only use them outside their hours of operation (save to pick up or set down pre-booked passengers). Its claim was based primarily on Articles 56 and 49 TFEU (guaranteeing the freedom to provide services and freedom of establishment respectively), on the general EU law principle of equal treatment, and on Article 107 TFEU (on state aid), rather than on traditional domestic law grounds, which – as the Court noted at  – would have required Addison Lee to demonstrate Wednesbury unreasonableness.
In essence, the judge (Burton J) concluded that the case had nothing to do with EU law: Treaty rights were simply not engaged by the bus lane policy. First, there was nothing to suggest that any of Addison Lee’s drivers from other EU Member States were affected by the policy, in terms of their decision to come to the UK or the decision, once in this country, to become minicab drivers. The judge was “wholly unpersuaded that this traffic restriction has any relevance at all to freedom of establishment” (). As to the question of equal treatment, which the judge seems to have accepted (at least for present purposes) was in play, he was satisfied that black cabs were in a different position from minicabs, in that they needed to be accessible for people wishing to hail them on the street: it made “entire good sense for black cabs to be travelling in bus lanes” ([60(i)]). There were also the points that only 8% of black cabs are pre-booked and so properly in competition with minicabs, and that if minicabs were allowed to use the lanes, there would be “no rational distinction” such vehicles and hire vehicles, chauffeured cars and the like: in other word, extending bus lane use to minicabs would be the “thin end of the wedge” ([60(iii)]). Finally, there was no question of the policy amounting to unlawful state aid, in part because inter-State trade was not affected by it and in part because, as previously mentioned, black cabs and minicabs were not in comparable situations, in light of the objective pursued by the measure concerned ().
In my earlier post, I suggested that the effects of the regulations in question on EU trade freedoms might be too remote to be vulnerable to challenge on those grounds. The Court has agreed: Burton J said that “this challenge has simply been the attempt to mount a challenge to a London traffic regulation by turning it into a “Euro-point”, and I am wholly unpersuaded by it” (). In other words, not every estuary of domestic law has been swamped by the incoming tide of European law: there are some parts which even EU law cannot reach.