Europe’s justice deficit?

Gráinne de Búrca

The ‘justice question’ is becoming increasingly important in the EU.  With the lives of so many in the European periphery dramatically affected by the policies of austerity, widely perceived to be EU-imposed; with the Court of Justice appearing to stand for its own authority and EU autonomy at any cost; with migrants attempting to reach fortress Europe and drowning en masse as the EU cuts back its rescue services; and with economic inequalities in the Member States reaching new heights, could it be that there is a justice deficit in Europe, exacerbated by the European Union?

The volume ‘Europe’s Justice Deficit?’ co-edited by Dimitry Kochenov, Andrew Williams and Gráinne de Búrca explores this question. The volume is premised on the basis that it is  appropriate to talk about justice in the context of the EU legal and political system; and that questions of justice and injustice in the EU context have not yet (with some notable exceptions) been the subject of much analysis and discussion either by academics or by political and institutional actors.

The first assumption builds on the idea that the scope of justice applicable to the EU should be considered broadly rather than narrowly:  justice should not be associated only with the State. The standards to be applied to particular organizations or polities should reflect the nature of their goals and the extent of the impact their decisions have on the lives of their constituents or those outside their borders. The EU and its institutions have assumed considerable power and influence within and beyond its Member States. Its daily actions substantially affect the interests of individuals, corporations and states, and it possesses significant capacity to address injustice both within its boundaries as well as externally.

The editors and contributors to this book suggest that it is time to think critically about the existence and nature of a perceived justice deficit in Europe, its possible implications for Europe’s future, and to open a discussion about the ways in which such a deficit might be addressed. The book is intended as a first step in this direction.

Events: Europe’s Justice Deficit: Debate and Book Launch and a Conference on the EU and the Rule of Law

The following events may be of interest to EUtopia readers:

A debate between Justice Giuliano Amato, Constitutional Court of Italy (Former Prime Minister of Italy) and Professor Christian Joerges (Hertie School of Government)

Is the European Union a just political and legal order? Does the EU undermine the pursuit of justice by its Member States? Have scholars and policy-makers paid sufficient attention to questions of justice in the EU context?

This debate marks the launch of Europe’s Justice Deficit (Hart Publishing, Oxford, 2015), co-edited by Dimitry Kochenov, Gráinne de Búrca and Andrew Williams. The three editors and numerous contributing authors to the volume will join the conversation following the debate.

June 4, 2015, London School of Economics and Political Science; 3–6pm, room 32L.G.03 (on the South side of the Lincoln’s Inn Fields), followed by a reception.

RSVP to Sarah Lee.

Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and Reality

18th of June, London (Ashurst LLP).

The conference is co-organised by Laurent Pech, Jean Monnet Chair of EU Public Law Professor at Middlesex University and the Bingham Centre for the Rule of Law.

The conference aims to bring officials, practitioners and academics together to reflect on the recent mechanisms put forward by the European Commission and the Council of the EU to more effectively uphold and safeguard the rule of law within the EU. Alternative proposals for new rule of law instruments originating from other institutions, organisations and academia will also be explored.

Further information about the programme and registration can be found here.

Spain v Parliament & Council (C-146/13) – a giant step towards (dis)integration of the European patent system

Aurora Plomer

The green light for the introduction of a European unitary patent and a centralized patent court (UPC) was finally given by the CJEU in Spain v Parliament and Council (Case-146-3). This marks the end of longstanding but frustrated  efforts by the European Union to introduce a uniform patent system in Europe. Like its forerunners, the aim of the latest initiative in the form of the EU ‘patent package’,  is to create the legal conditions for a more secure, less complex  and less costly system for industry and investors to foster scientific and technological advances in the Union.  But whilst driven by the European Union,   the ‘patent package’   is a   mix of EU Regulations and an international Treaty  signed by twenty five out of the existing twenty eight Member States. The  ‘unitary patent’  or European patent with uniform effect (EPUE) across the twenty five signatories, has been created by means of Regulation (EU) No 1257/2012 of the European Parliament and of the Council of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection (OJ 2012 L 361, p. 1).  By contrast,  the centralized  ‘unified patent court’ (UPC),  with exclusive jurisdiction to enforce and revoke the EPUE,  is the product of an international treaty (the Agreement on a Unified Patent Court, signed at Brussels on 19 February 2013 (OJ 2013 C 175, p. 1.)  The  legal architecture of the patent package  is therefore complex  and raises important constitutional questions regarding the legal basis of the patent package under EU law, the delegation of powers to the European Patent Organization and the principles of autonomy and uniform application of EU law. These questions were raised by Spain in an application for annulment of the legal instruments creating unitary patent protection. The Grand Chamber’s decision of 5 May 2015, rejecting Spain’s application,  has removed the last legal objection to the implementation of the ‘patent package’.  Spain raised seven pleas, all rejected by the court, in a laconic judgment which leaves many questions open. Some of the most salient issues left open by the judgment are discussed below.

By way of background to the Court’s ruling, it is important to note that patents have historically been territorial in nature so their enforcement and validity is determined by national laws (Article 3 TRIPS).  Since the adoption of the European Patent Convention (EPC) in 1973, applicants have been able to obtain a European-wide patent granted by the European Patent Office (EPO) covering any designated Member State of the European Patent Convention (currently thirty eight). The EPC preserves the principle of territoriality, so the legal effect of a European Patent granted by the EPO is the same as if the patent had been granted by the national patent office of a Member State. The grant of a European Patent thus results in a ‘bundle’ of national patents whose validity and revocation post-grant stands to be determined under the national laws of each designated Member State. A large scale study of  9,000 patent suits from seven of the largest countries in the European Union during 2000-2010 shows that judicial outcomes of revocation and infringement proceedings post-grant diverge radically across the different countries and types of patented technologies in Europe, making for a complex, uncertain and costly legal environment.  In this light,  the creation of a centralized judicial system  with exclusive jurisdiction on enforcement  of the unitary patent (UPC) has undoubtedly, in theory, many attractions from an applicant’s perspective.  Whether the legal creature created by the EU will meet applicants expectations is less clear.

Under the patent package,  applications for a unitary patent will be processed and administered by the EPO (Article 9 of the Regulation) under the rules and procedures of the EPC (Article 2(a) of the Regulation). Once granted, the European patent with uniform effect (EPUE) shall have unitary effect amongst the participating Member States (Article 2(b)). Of the seven pleas raised by Spain and dismissed by the Court, three stand out.

Spain argued that the contested regulation should be annulled as contrary to the rule of law  in Article 2 TEU because the administrative procedure for the grant of the unitary patent has been delegated to  the EPO (under Article 142 of the EPC)  but the decisions of the EPO boards are not subject to any form of judicial review to ensure the correct and uniform application of EU law and the protection of fundamental rights. The Court’s dismissal of Spain’s argument simply reiterates AG Bot’s technical answer (18th November 2014) that the contested regulation in no way delimits the condition for the grant of European patents which are exclusively governed by the EPC and not EU law. Yet, the Court’s reasoning, whilst formally correct,  represents the EPO’s intervention as an ‘accessory’ administrative act of registering a European patent granted under EPC rules as a European Patent with Unitary Effect.   In so doing, the answer evades the critical point raised by Spain that the decisions of the  EPO boards,  at the grant stage of the European patent and its ‘accessory’ registration as a EPUE – are not subject to judicial scrutiny under EU law or indeed any other form of judicial scrutiny.  Neither is the point of purely academic interest as underscored by the case  Virgin Atlantic Airway Ltd v Zodiac Seats UK Ltd [2013] UKSC 46. As the result of an administrative error by the  EPO examiners, the applicant was exposed to a claim worth £49 million  in infringement proceedings in the UK. The UK Court held that the error could not be rectified at the post-grant stage unless the EPO corrected the error. The applicant’s request to the EPO to correct the error was originally refused prompting further appeals at the EPO and in the UK courts highlighting the shortcomings of the EPO tribunal system (the case has been extensively discussed in IP blogs; for example IP Copy). By contrast, in legal proceedings in national courts or administrative bodies where EU law is engaged, an applicant in similar circumstances could invoke Article 41 of the EU Charter. Not so with the EPUE and the EPO boards.  The recent dismissal of one of the EPO officials has further fuelled concerns about  the independence and fairness of the EPO tribunals, prompting an unprecedented intervention by Sir Robin Jacob (see letter and EPO response). Also, for a discussion of parallel proceedings in German Courts Dr. Stjerna’s article on the topic is available in PDF here. Continue reading

Call for Applications – Future Directions in EU Labour Law

It may be of interest to readers that Early Career Scholars in EU labour law and social policy are invited to apply for a space on the British Academy-funded project on Future Directions in EU Labour Law, with a launch workshop organised on July 3 at Magdalen College, Oxford. The project will bring together early career academics and senior policy makers from across the Union to collaborate throughout 2015 to shape new ideas and policy proposals.

For further information, and details of how to apply, please visit the project website.


Spring EU law events

We’ll be back after the break, but in the meanwhile the following events might be of interest to readers:

Opinion 2/13 on accession by the European Union to the ECHR: Is it convincing? Is there a way forward? Are there wider constitutional implications?

UKAEL Seminar, 23 April 2015, 18.30 – 20.00

Council Room, Strand Campus, King’s College London

£25 current UKAEL members / £40 general public

Featuring Professor Sir Alan Dashwood QC, Dr Tobias Lock, Professor Michael Dougan and Professor Philippa Watson. You can book places here.

The Academy of European Law summer courses at the European University Institute, Florence

The Academy of European Law summer courses in Human Rights Law and European Union law, given by leading authorities from the worlds of practice and academia, provide high-level programmes for researchers and legal practitioners.

This year’s Human Rights Law Course will be held on 15 – 26 June. It comprises a General Course on ‘The Future of Human Rights Fact-finding’ by Philip Alston (New York University Law School) and a series of specialized courses on the topic of ‘The Futures of Human Rights’ by leading scholars.

The Law of the European Union Course will be held on 29 June – 10 July. It features a General Course on ‘What’s Left of the Law of Integration?’ by Julio Baquero Cruz (Member of the Legal Service of the European Commission) and a series of specialized courses on the topic of  ‘Harmonization in a Changing Legal Context’ by leading scholars and practitioners in the Law of the European Union.

The two-week courses are held at the European University Institute in Florence. Applications close on 8 April. For further information see the Academy’s website at

Event: BIICL Annual Grotius Lecture 2015

On Thursday 26 March 2015 Eleanor Sharpston QC, Advocate General at the CJEU, will deliver the 2015 Annual Grotius Lecture on the subject ‘Squaring the Circle? Fighting Terrorism whilst Respecting Fundamental Rights’. This event looks to be of great interest to barristers, solicitors, judges, arbitrators, government officials, intergovernmental officials, academics, students and all with an interest in European law. More details are available here.

Should Damages in Public Procurement Hinge on Disappointed Bidders’ Commercial Interests? A Comment on Energy Solutions EU Ltd v Nuclear Decommissioning Authority

ASGDr Albert Sanchez Graells, School of Law, University of Leicester

In its recent Judgment of 23 January 2015 in Energy Solutions EU Ltd v Nuclear Decommissioning Authority [2015] EWHC 73 (TCC), the High Court ruled on a preliminary issue in a public procurement dispute and held that the review court has no discretion (not) to grant damages for losses resulting from a breach of the public procurement rules. In my view, the Energy Solutions v NDA Judgment should be criticised at least for two reasons: firstly, because it misinterprets the EU rules on public procurement remedies and their link with the general principle of State liability for breaches of EU law; and secondly, because it creates an analytical framework based on the commercial decisions of disappointed bidders that would result in excessive (strategic) claims for damages. Moreover, the Energy Solutions v NDA Judgment sheds light on an important shortcoming of the system of public procurement remedies that is perpetuated under the recently adopted Public Contracts Regulations 2015 (SI 2015/102). This comment addresses these issues in turn.


The dispute arises after Energy Solutions (as part of a bidding consortium, but that is not relevant for our purposes) was not chosen as the winning bidder in a tender for a nuclear waste management contract with the Nuclear Decommissioning Authority (NDA). After expressing its disagreement with the award decision and seeking additional information in the ensuing debriefing process, Energy Solutions eventually challenged the tender procedure within the 30-day limit applicable under reg.47D(2) of the applicable Public Contracts Regulations 2006 (SI 2006/5, as amended, primarily by SI2009/2992). By the time the challenge was effected, NDA had already entered into a contract with the winning bidder. Energy Solutions sought compensation for the damages it alleged to have suffered as a result of the improper conduct of the tender procedure.

NDA tried to bar the damages action by arguing that a failure to challenge the award decision within the 10-day standstill period provided for under reg.32(3) Public Contracts Regulations 2006 (which could have prevented it from entering into the contract) broke the causal link between any breach of the applicable procurement rules and the ensuing damages (which, If any, would then derive from the tardiness of the challenge). NDA basically claimed that having foregone the possibility to prevent the award of the contract to another tenderer by activating the suspension foreseen in reg. 47G Public Contracts Regulations 2006, Energy Solutions had also lost the possibility to seek damages compensation. In support of that position, NDA submitted that, under reg.47J(2)(c) Public Contracts Regulations 2006, the review court retained discretion (not) to award damages resulting from a breach of public procurement rules in circumstances such as those in the case (ie the lost opportunity of litigating within the standstill period).

The High Court ruled against NDA on both points. Edwards-Stuart J found no basis for the

submission that any award of damages is dependent on the level of gravity of the breach, or any other such factor, and thus dependent on an exercise of judicial “discretion” or judgment, or whether, absent any failure to mitigate its loss, having proved a breach of the [public procurement rules] a claimant is entitled to anything other than damages that should be assessed by reference to ordinary principles. It may well be that the claimant’s conduct will have been such that the court will be very reluctant to make any assumptions in its favour in relation to damages, but that is simply an aspect of the usual approach of the court to the assessment of damages (para 86).

As mentioned above, this finding is open to criticism, both for its inconsistency with EU law and because it creates an analytical framework that may result in excessive claims for damages. Each of these issues is addressed in turn. The problem derived from the diverging duration of the standstill period and the time limit for the challenge of award decisions is discussed last, as it also affects the brand new Public Contracts Regulations 2015. Continue reading

Sanneh and Others – access to welfare for Zambrano carers


Dr Iyiola Solanke

If citizenship is the fundamental status for EU citizens, what is its substance for child citizens who are too young to enjoy the rights set out in Articles 21-23 TEU to work, travel, vote or petition the EP? What does the principle in EU law of ‘genuine enjoyment of the substance of citizenship’ mean if you are a child? And what are the implications for your parent or parents? These are central questions for a specific group of children now growing up across the EU – those who themselves hold EU citizenship but their parents do not. As stated in the Zambrano case,  the parents of such ‘Zambrano Minors’ derive a right of residence in the EU so that the child is not deprived of the genuine substance of Union citizenship. Although the Court of Justice has subsequently considered when this genuine enjoyment is impinged (Macarthy, Dereci, O & O) it has not made any remarks on the substance of citizenship rights for the children. It may be necessary for it to do so to prevent these children from being consigned to lives of poverty by national interpretation of its principle.

The Court of Appeal has delivered a decision concerning access by the parents of Zambrano Minors to social assistance. The parents challenged the Regulations adopted by the Coalition Government to incorporate the Zambrano principle into national law. Three Regulations were designed to specifically exclude these parents from rights to social assistance that they would otherwise have as lawfully resident persons. In line with its policy to make Britain hostile to immigrants, the Government decided that these parents should be in the same position as those who do not have a lawful right to reside. The ‘Amendment Regulations’ therefore exclude all ‘Zambrano Parents – those in work and those out of work – from income-related benefits including income support, jobseekers allowance, employment allowance, pension credit, housing benefit, council tax benefit, child benefit and child tax credit. The Home Office justifies this policy as a measure to prevent and deter ‘benefit tourism’ but the parents argued that this policy was a faulty application of the Zambrano principle and discriminatory under EU law. It was argued that a proper application of the principle called for them to be in the same position as other EU nationals.

The Justices agreed with the Home Office. Drawing upon the ‘effective citizenship principle’, they held that

  1. Rights derived from an EU citizen [3] are not EU rights [95]. Thus although ‘their status is derived from the EU citizenship rights of the child as interpreted by the CJEU’ ‘EU law has no competence in the level of social assistance to be paid to the carer’. This is ‘exclusively governed by national law’ [27];
  2. ‘Zambrano carers’ derive their right to reside from Article 20 TFEU and therefore fall outside the EU cross-border social benefits legislative scheme (the ‘EU CBSBL scheme’) set out in the Citizenship Directive, the Long Term residence Directive and the Family reunion Directive [42];
  3. ‘Genuine enjoyment’ does not ‘require the State to guarantee any particular quality of life’ [32 & 171] – a ‘Zambrano carer’ is protected from compulsion to leave but this does not provide as a corollary a right for parent and child to live free from want and poverty. Zambrano carers are not to be left ‘destitute’ but member states remain free to determine access to benefits where individual situations fall outside of the scope of EU Directives [83];
  4. The proportionality principle is irrelevant because the question is beyond the scope of EU law;
  5. The EU principle of non-discrimination in EU law and the ECHR is inapplicable.

Continue reading

Vacancy: Judge at the General Court of the European Union

This week a vacancy was announced at the General Court which readers of this blog may be interested in. A selection exercise is to be run to identify the next UK representative of the General Court of the European Union on behalf of the Foreign and Commonwealth Office. The intent to apply deadline is Monday 2 February; more information is available via the link.

Upcoming events for EU lawyers

european-union-flags-at-t-0021Annual European Law Conference, organised by the Centre of European Law
Friday 13 March 2015, Royal College of Surgeons, London

Speakers at this prestigious event include Advocate General Julianne Kokott from the European Court of Justice. Details of the programme and booking information are available here.

Mackenzie Stuart Lecture 2015: Anthony Gardner, US Ambassador to the EU
Thursday 29th January 2015, University of Cambridge

The topic for this years’ Mackenzie Stuart Lecture is Facing Legal Challenges in U.S. – EU Relations. For more information and booking please visit the website.

Round table discussion on Benefits and EU law

The City Law School is hosting a debate on Monday 26th January organized under the aegis of the Jean Monnet Chair in European Law. More information (including the speakers’ biographies) is available here.

If your organisation is hosting an event that you think our readers would be interested in, please get in touch.