Event: Scotland’s independence and EU Membership, City Law School, 19 Mar 2014

flagsSee below for details of an upcoming event hosted by The City Law School on Scotland’s independence and EU Membership, featuring EUtopia contributor Kenneth A Armstrong.

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SPEAKERS: Sir David Edward KCMG PC QC, Former Judge at the European Court of Justice

Professor Kenneth Armstrong, University of Cambridge

Professor Sir Alan Dashwood QC, City University London and Henderson Chambers

CHAIR: Professor Panos Koutrakos, City University London

WHERE: City  University London, College Building, St John Street, Room A130

WHEN: Wednesday, 19 March 2014 at 18:00.

The event will be followed by a wine reception.

Attendance free  - please visit The City Law School’s website.

An End to European Multilateralism: A Comment on the German Bundesverfassungsgericht’s OMT decision

Oliver Gerstenberg

When it comes to adjudicating the European sovereign debt crisis, the German Bundesverfassungsgericht emerges as a sharply divided court. Back in August 2012, Mario Draghi pledged to do “whatever it takes” to prevent a single currency break-up. His words were followed by the Outright Monetary Transactions Programme (OMT), allowing the ECB to buy unlimited government bonds of over-exposed eurozone countries. The so-called “magic” of the OMT was that it has worked without ever being activated—the statement of a credible commitment alone was sufficient to stabilize markets without the ECB ever having to buy a single bond so far and to stop sovereign bond spreads.

In its pronouncement of February 7, 2014, on whether the ECB’s sovereign bond-buying program is “ultra vires,” the 2. Senate of the BVG, with a majority of 6:2, has for the first time ever turned to the CJEU for a preliminary ruling. But, appearances to the contrary, the deployment of the reference procedure is anything but an act of European-friendliness and judicial comity. The senate’s majority opinion uncompromisingly expressed its categoric view that essentially due to its unlimited nature the OMT programme indeed amounted a “structurally significant transgression of powers” under EU Treaty law: according to the six judges, “there are important reasons to assume that [the OMT-programme] exceeds the ECB’s monetary policy mandate and thus infringes the powers of the Member States, and that it violates the prohibition of monetary financing of the budget.” The consequences of these words are dramatic. For starters, those words may well set the stage for a constitutional conflict between the BVG and the CJEU, should the latter—as observers think is likely—see things differently and provide the OMT with a clean bill of health by declaring it an act of monetary policy. Perhaps even more fundamentally, rather than recant or eat its words, the BVG, upon a future constitutional complaint which the ruling self-consciously invites, has fully put itself on course of ordering Germany to leave the Eurozone entirely. In an ironic reversal of Draghi’s words, and in its own peculiar way, the BVG, too, seems bent on doing “whatever it takes.” Continue reading

Event: The Image(s) of the ‘Consumer’ in EU Law: Legislation, Free Movement and Competition Law

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.

University of Oxford

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

A Spring in the Desert: the German ECJ Reference on the ECB Bond Purchases

Daniel Thym

Among domestic commentators, the initial response was amazement: the reference by the German Constitutional Court was perceived as a sensation and turning point. My reaction is more moderate. Judges in Karlsruhe recognise their limits and try to push the ECJ in their direction. This appears to be ground-breaking against the background of widespread media hype only. In principle, it is regular business. Judges in Karlsruhe boldly go where almost 2000 German courts, the regional Constitutional Court of Hesse and highest courts from other Member States had gone before.

By following their example, the Federal Constitutional Court (FCC) recognises reality. Its position is not much different from Angela Merkel, the German Bundesbank and the Parliament. Without German involvement, euro rescue operations cannot succeed – and yet German state organs are not in a position to shape events single-handedly. In this respect, the reference for a preliminary ruling is nothing unusual and reflects the wider state of European affairs. It is quite telling that the domestic debate in Germany perceives as a sensation what is (or rather: ought to be) utterly self-evident.

Most importantly, the reference changes the legal setting. Instead of grounding the argument on the German constitution, the rules for monetary union in the EU Treaties take centre state (which the justices in Karlsruhe had ignored intentionally in earlier rulings on euro rescue operations). One may disagree how to interpret these provisions, but there is no reasonable doubt that the ECB has to comply with the prescriptions in the EU Treaties. Detailed rules in Articles 119-135 TFEU and related protocols are the appropriate standard for ECB action, not the so-called eternity clause of the German constitution, the Grundgesetz, upon which the FCC had relied hitherto.

This change of legal context has not been paid adequate attention by Justice Gertrude Lübbe-Wolff in her otherwise excellent dissenting opinion, which may soon become a must-read for students of constitutional law on the limits of judicial review (the FCC has promised to publish an English translation). She is right to criticise the majority for having embarked upon a tour of the desert, which was bound to fail from the beginning. Contrary to her suggestion, there is a spring in the desert, which justices may head for – although they refused to see it until last week: the ECB must comply with the rules of the EU Treaties and it is the responsibility of the ECJ to guarantee that they are respected. Judges in Karlsruhe should be applauded for having recognised this. Continue reading

Case C-557/12, KONE AG and Others, Opinion of Advocate General Kokott of 30 Jan 2014


The pseudonymous author has not been directly or indirectly involved in the case at hand.

On 30 January 2014 Advocate General Kokott rendered her Opinion in the Kone case, which concerns claims for damages by victims of so-called “umbrella pricing”. We do not disagree with the conclusions and the proposed dispositif of the learned Advocate General’s Opinion.  However, her undisputed authority may mislead into accepting all the premises of her Opinion’s argumentation without sufficient questioning.  We believe that certain parts of the Opinion’s reasoning are flawed and contradict the Court of Justice’s case law in the area of private antitrust enforcement. The Opinion also misses and mischaracterises the central point of the preliminary reference, which is the question of standing.

The referring court, the Austrian Supreme Court, was asking the following question:

Is Article 101 TFEU (Article 81 EC, Article 85 of the EC Treaty) to be interpreted as meaning that any person may claim from members of a cartel damages also for the loss which he has been caused by a person not party to the cartel who, benefiting from the protection of the increased market prices, raises his own prices for his products more than he would have done without the cartel (umbrella pricing), so that the principle of effectiveness laid down by the Court of Justice of the European Union requires grant of a claim under national law?

The Austrian court’s view was that such actions by umbrella pricing victims should not be admissible a priori, because the loss alleged is not covered by the “protective purpose of the competition rules” (a theory that has tarnished private antitrust enforcement in Germany, Austria and to a lesser extent Italy) and because it did not consider that there was an adequate causal link between the unlawful conduct and the alleged harm.  However, to its credit, the national court had some doubts as to whether its interpretation of Austrian law was compatible with EU law and decided to send a reference to Luxembourg.

On the positive side, the Opinion starts from the premise that, contrary to the referring court’s views, the principle of individual liability for competition law violations is a matter of Union and not national law.  Indeed, the Advocate General makes, very aptly, a distinction between the existence and the exercise of civil claims.  Existence is a matter of Union law, while exercise a matter of national law.  This should hardly come as a surprise to seasoned observers of the Court of Justice’s case law in this area ever since the Courage ruling in 2001 and in the wake of a number of post-Courage rulings, in particular, Manfredi, City Motors, Pfleiderer, Otis, and Donau Chemie.  The Kokott Opinion is quite explicit in that sense and puts an end to any remaining doubt.  So far so good. Continue reading

Barking vs. Biting: Understanding the German Constitutional Court’s OMT reference … and its implications for EU Reform

lindsethProf. Peter Lindseth

I find myself in familiar territory.  Just as with the ESM Ruling of September 2012, some of the insta-commentary on a decision of the German Federal Constitutional Court (GFCC) on the Eurozone crisis calls for a response. At issue in September 2012 was the claim that the GFCC’s refusal to issue a preliminary injunction against the European Stability Mechanism (ESM) was evidence of “the Court’s weakness in EU matters.” At issue now is the idea that the Court’s decision this past Friday to refer a question to the CJEU – on the compatibility of the ECB’s OMT program with the treaties – is somehow an “abdication,” indeed “nothing less than a surrender of sovereignty by Germany’s highest court.”

Commentators much closer to as well as more knowledgeable of these matters have already weighed in on this over-reaction. I’d still like to offer some additional reflections, not merely to add what I hope will be some context to Friday’s decision, but also to shed some light on the Court’s strategy in the “game” in which it inescapably finds itself. Finally, I’d like to suggest that the Court’s ruling has major implications for the process of EU reform that David Cameron has been struggling to energize. As I’ll explain in the conclusion to this post (apologies in advance for its length), it is hard to envision any outcome of Friday’s decision that will not compel the Angela Merkel’s government to undertake reform, including treaty changes.  This presents an opportunity for the British government but only if it’s prepared to accept that European reform must include not merely “less” Europe, but also “more,” including possibly an expanded mandate for the ECB to explicitly embrace OMT.

Continue reading

Book Review: Constitutional Review in Europe; A Comparative Analysis, Maartje de Visser

Joelle Grogan, University of Oxford

Constitutional Review in Europe: A Comparative Analysis, Maartje de Visser (European and National Constitutional Law Series, Hart Publishing, 2014)

Constitutional discourse lies at the heart of every state’s legal system. In Europe, it is the subject of even more intense debate with the rapid process of integration in the European Union, and the apparent incursion of EU regulatory norms into sacred national constitutional space. What is always assumed, but not examined, is the fact that this is a shared experience across the EU. Each Member State grapples with the realisation of its own constitutional identity, in its domestic courts and in the EU.  In her new book “Constitutional Review in Europe: a Comparative Analysis”, Maartje de Visser aims to address two questions: who (should) uphold(s) the constitution, and how is constitutional review organised. Drawing on sources from eleven representative Member States of the EU (Belgium, the Czech Republic, Finland, France, Germany, Italy, Hungary, the Netherlands, Spain, Poland and the United Kingdom), this book is a veritable tour de force as it is a tour d’Europe.

There is an inherent hazard in comparative analysis, especially one which aims to describe the constitutional frameworks of such a diverse range of states, that the analysis will be piecemeal and the narrative of the book will simply be a list of states and their associated institutions. Evaluative considerations would either require lengthy argument beyond the scope of the book, or fall to the accusation that identified distinctions are superficial, or a whole host of justifying social, historic, and cultural norms were ignored. The author firmly acknowledges and responds to all of these concerns. Dividing the veritable behemoth of comparative constitutional review into manageable sections of the representative elements, she adroitly addresses the most important practical and theoretical aspects of constitutional review.

Covering the role of non-adjudicatory actors, the rise and purposes of constitutional adjudication, sources of constitutional review, access to the courts, the composition of the constitutional bench, and the interplay between constitutional courts and other actors; this work gives excellent scope to discover the many aspects of constitutional review. In addition to the eleven representative states, the Court of Justice of the EU also features, as de Visser has explicitly adopted the convention of European scholars of labelling the Court as ‘constitutional’. Leaving aside the normative and political challenges of that assessment, it is a wise choice: the judgments and actions of the Court have a wide ranging impact on constitutional judgments of national courts.

Within each chapter, the author presents some preliminary examples from states, followed by short sections of comparative analysis. The choice of the legal systems considered is not driven by the need to represent all states, but rather by the particular thematic question asked. So, for example, discussion of the avoidance of competence collisions between state bodies is only considered from French and Belgian perspectives; whereas the identification of the sources of standards for constitutional review merits the consideration of the Constitutional Courts of all eleven states. The carefully constructed structure of the book is a necessary feature, considering the complexity of its ambitious project. De Visser handles the material deftly, however, never losing the interest or engagement. Reading like a judicial thriller at times, de Visser engages with the most politically divisive cases to come before the Constitutional Courts to demarcate the expanding (or reducing) boundaries of judicial competence. Continue reading

Book Review: Judging Europe’s Judges

Michèle Finck, University of Oxford

Judging Europe’s Judges is a fascinating volume that addresses the legitimacy of the case law of the Court of Justice of the European Union. It would be of particular interest to those working on the ‘hard cases’ recently decided by the CJEU, but also more generally to anyone interested in European law.

An increasingly interconnected world, successive waves of enlargement, and the entry into force of the Lisbon Treaty have given rise to a European Union that is more heterogeneous than ever before. This heterogeneity is also reflected by the cases the Court engages with. As the editors state in their introduction:

‘adjudication has nowadays become more challenging than ever before, since the law is increasingly interlinking different sets of interests, so as to address ever more complex societal problems and issues. As a result, in individual cases, courts can no longer confine themselves to applying the legal rules as established by the legislator.’

They conclude that as a consequence, the process of adjudication needs to be of a dynamic nature.  The increased complexity of the CJEU’s adjudicatory task constitutes the guiding theme, linking together the papers of the various commentators. Separate contributions study the interrelated challenges faced by the Union’s highest Court in zooming in on four relatively large themes: the general principles of European Union law, the EU’s external relations, the internal market, and EU citizenship. Continue reading

Case Comment: C-423/12 Reyes

Adrienne Yong

The recent developments in EU citizenship have been admittedly fairly quiet in comparison to the uproar after the ever controversial Zambrano case where the interpretation of citizenship provisions under Article 21 TFEU went astray. In the case of Reyes, the question concerns a clarification on the Directive 2004/38 and the meaning of ‘dependant’ under Art 2(2)(c). The case concerns third country nationals (TCNs), the cases of which have dominated the scene since Zambrano. The persistence of claimants in this respect is thus admirable, suggesting that Zambrano and indeed, the Directive itself, left a lot to be desired. This persistent pattern is to be received positively, representing good opportunities to clarify confusing positions.


Ms. Reyes, a Filipina, was brought up by her grandmother in the Philippines when she was three years old after her mother left to work in Germany to support her family. Ms. Reyes’ mother is now a German citizen.

Throughout her life, Ms. Reyes never held a job but similarly never relied on the Philippines’ social benefits. Her mother periodically sent money to support her, her sisters and her grandmother. Ms. Reyes’ mother moved to Sweden to be with a Norwegian man in 2009, whom she married mid-2011. He received a retirement pension which was also sent to the Philippines for Ms. Reyes’ benefit. After moving, Ms. Reyes’ mother did not work, living on her husband’s retirement.

When Ms. Reyes entered the Schengen area early 2011, she was refused a residence permit as dependent family member by the Swedish Migrationsverket for being unable to prove the funds sent by her mother and her partner were to sustain her life in the Philippines (in the form of basic needs, lodging, healthcare) or that any home state public funds were supporting her. This was due to the fact that she was fully dependent on her grandmother and the Migrationsverket decided this indicated she was not dependent on her mother in Sweden.

The appeal by Ms. Reyes to the Migrationsverket was dismissed because whilst they agreed her basic needs were supported by her mother’s funds, there was not enough proof that she would be able to survive without dependence on her mother and partner if she were to remain in her home state. They argued that she was still young, had qualifications from there, lived there, and still had relatives there. Her mother’s choice to support her was not determinative in the decision that Ms. Reyes’ was not dependent.

The first question referred thus aims to clarify if Art 2(2)(c) Directive 2004/38 – the definition of a dependent family member – requires that those over 21 years old must prove that they had searched for employment and failed OR sought support from public funds and it was also not possible before being considered a family member. The second asks if this family member can still be considered a ‘dependant’ if they are considered to be fairly well qualified to get employment AND intends to find a job in that Member State. This would nullify the conditions under which they would be a dependent relative. Continue reading

After AMS: remaining uncertainty about the role of the EU Charter’s principles

Jasper Krommendijk

On 15 January 2014, the CJEU issued its long awaited judgement in the case of AMS (Case-176/12 [2014]) in which it concluded that article 27 of the Charter of Fundamental Rights of the European Union does not have horizontal effect and can thus not be invoked in a dispute between private parties. This blog entry examines the judgments as well as the -different- Opinion of the Advocate General.

I. Facts and judgment

AMS is an association governed by private law. Its main objective is reintegration of unemployed persons. It challenged and consequently suspended the appointment of Mr. Laboubi as a trade union representative. AMS was of the opinion that this appointment was not required since AMS only had 11 staff members. The French Labour Code only obliges the appointment of a representative for workplaces with more than 50 employees. In its calculation, AMS excluded between 120 and 170 employees with particular contracts (‘accompanied-employment’) from the calculation. This practice was in line with the French Labour Code (Article L. 1111-3). The trade union argued that the latter provision was not in accordance with Directive 2002/14 providing for the consultation of employees. Nonetheless, the trade union could not invoke the Directive, because of the prohibition of horizontal direct effect in legal disputes between private parties, as the case in hand. The trade union thus based its argument on Article 27 of the Charter dealing with workers’ right to information and consultation within the undertaking:

Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Union law and national laws and practices.

In that light the Cour de Cassation in April 2012 referred preliminary questions to the CJEU asking whether article 27 can be invoked in a dispute between private parties. Continue reading