On 5 November I gave a presentation on recent developments in EU public procurement law at a Matrix conference for local authority lawyers. It is fair to say that my 30-minute slot was nowhere near enough to do full justice to the subject-matter: the new EU directives alone could easily occupy a full day or two of a conference. (See here for the slides of presentations given at a recent event held by the Procurement Lawyers’ Association on the topic; and see here for the text of the public sector directive, which has not yet been formally adopted.)
My PowerPoint slides can be found here.
Earlier in the month Matrix hosted the latest in its “40 years on – the UK in the EU” seminar series. The seminar was on EU environmental law and was entitled “The EU, risk and precaution in the context of GMOs: are there legal limits to precaution?”. The speakers were Professor Maria Lee (UCL) and Kate Cook, a barrister at Matrix. The speakers provided fascinating insights into the GMO authorisation process at EU level. Professor Lee provided an overview of the way in which decision-making in this area takes place, noting what she considered to be a lack of political legitimacy arising from the fact that such decisions were in effect solely in the hands of Commission officials, the “Comitology” procedure having been a failure in practice due to sharp divisions among Member States. This was in her view particularly regrettable in view of the fact that such decisions were ‘political’ (in the sense of requiring value judgments rather than purely scientific/factual assessment). She suggested that there may be a case for de-harmonisation in this area so as to permit the Member States to take their own decisions in relation to the importation of such products, provided that they complied with Article 36 TFEU. Kate Cook focussed on the position internationally, providing an overview of (often fraught) international negotiations and the recent litigation before the SPS panel of the WTO in which the EU’s moratorium on authorising GMOs was successfully challenged by the US.
Kate’s slides can be found here.
Prof. Peter Lindseth
In keeping with my recent emphasis on spreading my views the old fashioned way – through scholarly papers, book chapters, and the like (see, e.g., here) – I’ve posted a new piece as part of the Jean Monnet Working Paper Series at NYU Law School that may be of interest to some readers. Entitled “Equilibrium, Demoi-cracy, and Delegation: On the ‘Administrative, not Constitutional’ Legitimacy of European Integration”, the piece builds on a very different paper I submitted as part of the symposium “Toward a Multipolar Administrative Law: A Theoretical Perspective” at NYU last year. For those interested, the current version of the paper can be downloaded here and the abstract is immediately below.
To argue, as this contribution does, that European integration enjoys an “administrative, not constitutional” legitimacy is to take a position in obvious tension with the deeply-rooted conceptual framework—what we might call the “constitutional, not international” perspective—that has dominated European public-law scholarship over many decades. Rather than viewing the administrative alternative as an outright rejection of all that has come before it, however, one can in fact see it as providing the legal-historical micro-foundations for certain better-known theories of European legal integration. I am referring in particular to Joseph Weiler’s classic theory of European “equilibrium” (now updated as “constitutional tolerance”), as well as Kalypso Nicolaϊdis’s more recently developed “demoi-cratic” theory of European governance (on which this contribution focuses in particular). The central idea behind the administrative interpretation—the historical-constructivist understanding of “delegation” and the essential balance it demands between supranational regulatory power and national democratic and constitutional legitimacy—directly complements both theories. This alternative interpretation suggests how the balance between the national and supranational, as well as the nationally mediated legitimacy that is essential to integration’s sustainability, in fact have their origins in the historical evolution of administrative governance over the course of the twentieth century. Integration’s grounding in the history of administrative governance helps to explain certain crucial but often overlooked aspects of European public law, most importantly the role of oversight by national constitutional bodies—executive, legislative, and judicial—in the legitimation of the integration process. Moreover, the administrative perspective also provides helpful insight into how the theories of European “equilibrium” and “demoi-cracy” might be legally operationalized in service further European reform, particularly in the context of the still-unresolved Eurozone crisis.
Gerardin, Layne-Farrar and Petit EU Competition Law and Economics (2012, OUP)
It has taken a while to get round to reviewing a recent new treatise on EU competition law and economics by Damien Gerardin, Anne Layne-Farrar and Nicolas Petit, the book having landed on this reviewer’s desk before the summer. Mea culpa. Better late than never, though, especially as the book, co-authored by two lawyers with considerable experience of academia and practice and a specialist competition economist, is actually a good read.
The first question that tends to spring to mind before commencing a book review is: who is the intended audience? That is a pertinent question here. After all, there are now various practitioner works on EU competition law in the English language: think, in particular, of two others in the OUP stable, Bellamy and Child and Faull and Nikpay – so well known are they among practitioners that reference to the (original) authors suffices). OUP also publishes Whish and Bailey, which is aimed primarily at students but which practitioners also find useful. There other general practitioner works, such as Van Bael and Bellis, and a host of more specialist works. Why, then, add another treatise on competition law to a burgeoning stable?
The answer is not, as one might expect, to be found in a preface, for there isn’t one. The OUP website does, though, give us some insight (as, of course, does the book’s title): it says that the book “is the first EU competition law treatise that fully integrates economic reasoning in its treatment of the decisional practice of the European Commission and the case-law of the European Court of Justice.” Continue reading
Dr Albert Sanchez Graells
[ This comment originally appeared on Albert's personal blog http://howtocrackanut.blogspot.co.uk/ ]
In an interesting recent paper, Pablo Ibáñez Colomo conducts a very detailed statistical overview of State Aid Litigation before EU Courts (2004–2012) [Journal of European Competition Law & Practice (2013) doi: 10.1093/jeclap/lpt057]. One of his relevant findings is that the ‘private investor test’ and its application by the European Commission was one of the most litigated areas of EU State Aid law in that period and that ‘[a]nnulments were more likely where the ‘private investor test’ was raised as a ground‘.
In its Judgment of 24 October 2013 in Joined Cases C-214/12 P, C-215/12 P and C-223/12 P Land Burgenland v Commission, the Court of Justice of the EU has been confronted again with the test–this time in the mirror image of the ‘private vendor test’–and, on this occasion, has upheld the approach taken by the European Commission. In my opinion, there are several passages of the Judgment that bear stressing, particularly because the CJEU is backtracking from a much more economically oriented assessment of State aid that was (at least) suggested in Commission v EDF (C-124/10 P).
The case involved the existence of State aid in the privatisation of HYPO Bank Burgenland AG, where the relevant Austrian authorities decided to sell the bank to GRAWE despite the fact that the price it offered (EUR 100.3 million) was significantly lower than the price offered by a competing Austro-Ukrainian consortium (EUR 155 million). As the CJEU explains:
The decision was based, in particular, on a [...] recommendation by HSBC [which] essentially states that, although on the basis of the proposed purchase price the decision should be made in favour of the Consortium, it was recommended that BB be sold to GRAWE, in view of the other selection criteria, namely the reliability of the purchase price payment, the continued operation of BB while avoiding the use of Ausfallhaftung [ie the Austrian performance guarantee system for public credit institutions], capital increases and transaction security (C-214/12 P at para 9).
Not surprisngly, the Consortium challenged the decision claiming that the Republic of Austria had infringed State aid rules during the privatisation of BB and stressing that, amongst other irregularities, the tender procedure had been unfair, untransparent and discriminatory towards it–which resulted in the sale of BB not to the highest bidder, namely the Consortium, but to GRAWE.
Angela Merkel told Barack Obama that “spying on friends doesn’t work” after Der Spiegel alleged that her phone had been tapped by US intelligence agencies. It was reported that Merkel was convinced that the research was plausible and substantial enough to demand clarification from the White House, and the German foreign minister has called the US ambassador to a personal meeting to discuss the allegations. Le Monde also reported that NSA internal memos showed evidence that the US had spied on French diplomats in America and at the UN.
The scandal is threatening to overshadow this week’s European Council summit. The agenda focuses on efforts to consolidate Europe’s economic recovery, digital economy, innovation and services, jobs, and migration from Africa and the Middle East following the Lampedusa shipwreck tragedy. Earlier in the week, the European Parliament moved to secure data privacy and curb transfers with the US.
Member states agreed that negotiations with Turkey about EU accession would resume on 5 November. The discussions were originally scheduled for June, but were postponed after the violent police response to anti-government protests in Istanbul and other Turkish cities. Turkish accession has been a slow process – the country was awarded candidate status in 1999, but progress has been stalled by Member State objections, particularly from Cyprus. Turkey’s human rights record is also a regular sticking point. Continue reading
The seminal decision in Zambrano relied upon Article 20 TFEU as a source of residence rights independent of secondary legislation. The CJEU has so far not been willing to extend its application, and Alopka was another failed attempt to rely upon Article 20 TFEU.
Alopka concerned a Togolese national with French children (born in Luxembourg) and a dispute regarding a refusal to grant Ms Alopka a right of residence and an order for her to leave Luxembourg. Ms Alopka and her children were reliant on the State although she had been offered a job, which her lack of residence and work permits prevented her from commencing.
The Advocate General’s Opinion
Advocate General Mengozzi differentiated the case from Zambrano as the Union citizen children here did not hold the nationality of the Member State of residence, and therefore fell within the scope of Article 3(1) of Directive 2004/38. Unlike in Chen, Ms Alopka did not possess sufficient resources for herself and her children so as not to rely on Luxembourg’s social security system. AG Mengozzi considered that ‘sufficient resources’ for the purpose of Article 7(1)(b) of the Directive were capable of being satisfied by the definite prospect of future resources which would stem from the offer of a job of unlimited duration. He suggested that the referring court should, in principle, examine the job offer with a view to determining whether the Union citizen children would have sufficient resources under the Directive should Ms Alopka commence work.
The Advocate General did not consider that the Charter of Fundamental Rights could result in the conditions of residence under the Directive being relaxed or disregarded either in order to protect a child’s best interests (Article 24) or due to respect for family life (Articles 7 and 33 of the Charter), as this would mean disregarding the limits to Article 21 TFEU.
Following Iida, where the CJEU interpreted the right derived by a national of a non-Member State who is a non-dependent direct relative in the ascending line of a Union citizen child as falling outside the scope of Directive 2004/38 and being based solely on Article 21 TFEU, the Advocate General suggested that if the referring court were to find that Ms Alopka’s children satisfied the conditions laid down in Article 7(1)(b), then their mother could derive a right of residence based on Article 21 TFEU, rather than from the Directive. Continue reading
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
The UK Supreme Court on Wednesday delivered judgment in two conjoined cases that considered the legality of prisoner disenfranchisement. The Court considered both the compatibility of disenfranchisement with Convention rights, and also whether that disenfranchisement breached a right to vote granted to the appellants under European Union law. In a unanimous judgment the Supreme Court dismissed the appeals, declining either to issue a declaration of incompatibility or to recognise a right to vote conferred upon the appellants by EU law.
Prisoners in the United Kingdom are ineligible to vote by virtue of section 3(1) of the Representation of the People Act 1983 (‘RPA 1983’), which states that ‘a convicted person during the time that he is detained in a penal institution in pursuance of his sentence or unlawfully at large when he would otherwise be so detained is legally incapable of voting at any parliamentary or local government election’. This disenfranchisement is extended to apply to European Parliamentary elections by virtue of section 8(2) of the European Parliamentary Elections Act 2002. Continue reading
Prof. Kenneth A. Armstrong
On 2nd October, the European Commission published its anticipated Communication on Strengthening the Social Dimension of the Economic and Monetary Union. Yet barely had Commissioner Andor finished his press conference to launch the Communication than EP President Schulz intimated that the proposal was not ambitious enough. Observers of the EU will be familiar with the tendency of the Commission to refer to EU social policy as a ‘dimension’ of something else and with the criticism that its initiatives lack ambition. The ‘renewed’ social policy agenda of 2008 and more recently, the belated Europe 2020 ‘flagship initiative’ of the European Platform Against Poverty, were all greeted in more or less muted terms. In part, the rather underwhelming feeling about the Communication is a continuation of a disenchantment with the capacity of the European Union to develop a stronger social identity. But it is also a product of concerns with where EU social governance fits in the new governance architecture for economic and fiscal policy coordination given the political energy which has flowed into reforms to that architecture. Continue reading