Scotland, independence and the EU: the Sturgeon response

Aidan O’Neill QC

In the wake of yesterday’s Statement to the Scottish Parliament by Scotland’s Deputy First Minister, Nicola Sturgeon MSP, responding to the Barroso intervention which suggested that an independent Scotland would automatically leave the EU and would have to apply for admission as a new Member State, a number of legal questions arise.

The first issue is whether, in the period before Scotland formally leaves the British Union, the EU and the Scottish government can lawfully enter into any negotiations regarding the terms upon which an independent Scotland might be recognised as a Member State of the European Union.    The answer to this legal question depends ultimately on whether the Court of Justice of the European Union (“CJEU”) would consider Scotland after a positive vote in favour of independence but before it left the British Union, to already be a “European State” for the purposes of Article 49 of the Treaty on European Union (“TEU”).   To predict how the CJEU might determine that question requires some understanding of that court’s approach to textual interpretation, particularly Treaty provisions.  Continue reading

Scotland, independence and the EU: the Barroso intervention

Aidan O’Neill QC

The President of the European Commission, José Manuel Barroso, has responded to an invitation from the House of Lords Economic Affairs Committee for the European Commission to contribute to the committee’s inquiry into “The Economic Implications for the United Kingdom of Scottish Independence”.    Surprisingly perhaps, his response does not, however, deal with any economic issues should the 1707 Treaty of Union be dissolved and Scotland become an independent State, but rather with legal ones. Mr. Barroso’s first degree is in law, and he undertook postgraduate studies in economics and in international relations. It is to be expected that his views will be legally informed and clearly reasoned. The relevant paragraphs of his letter to the House of Lords on the issue states as follows:

(1)  “The EU is founded on the Treaties which apply only to the Member States who have agreed and ratified them.

(2)  If part of the territory of a Member State would cease to be part of that state because it were to become a new independent state, the Treaties would no longer apply to that territory.

(3)  In other words, a new independent state would, by the fact of its independence, become a third country with respect to the EU and the Treaties would no longer apply on its territory.

(4)  Under Article 49 of the Treaty on European Union, any European state which respects the principles set out in Article 2 of the Treaty on European Union may apply to become a member of the EU.

(5)  If the application is accepted by the Council acting unanimously, an agreement is then negotiated between the applicant state and the Member States on the conditions of admission and the adjustments to the Treaties which such admission entails.

(6)  This agreement is subject to ratification by all Member States and the applicant state.” Continue reading

EU Law for UK Lawyers: Review

We don’t generally use the blog to promote the editors, but this rather nice review of EU Law for UK Lawyers by Aidan O’Neill QC appeared in the Journal of the Law Society of Scotland and we thought we would share it. The book is available at all good legal bookshops and online.

EU Law for UK Lawyers

Aidan O’Neill QC

ISBN: 978184113046X
PRICE: £75

O’Neill opens by stating: “The European Union is based on a conviction, confirmed in and by World War II, that the experiment of the nation state had failed.”

In a legal world where specialism is seen as an end in itself, it is refreshing to have an author consider one supposed area of specialised law and demonstrate its relevance, influence and direct impact on individuals’ rights and obligations across all areas of practice: civil, commercial, criminal, employment, competition, planning, intellectual property, taxation, public procurement, health and safety, and more.

The author takes each discipline as a standalone chapter, but taken as a whole, demonstrates the full and daily impact of EU law. He does so with authority, lucidly describing the treaty base before moving to consider secondary EU legal instruments such as directives, concluding with implementation in the UK.

O’Neill anchors his belief that EU law needs to be read “in a manner which is informed by fundamental rights” by referencing each area of practice to the relevant provision of the Charter of Fundamental Rights. This is a compelling text and at this price is worthy of being in all practices.

David J Dickson, solicitor advocate

EU Justice and Home Affairs Law

Charter compatibility as interpretative aid and/or a condition of legal validity?

Aidan O’Neill QC

As I have noted in previous posts, since the coming into force of the Lisbon Treaty provisions according the Charter of Fundamental Rights of the European Union (“CFR”)  with “the same legal value as the Treaties” (Article 6 TEU), the CJEU now, as a matter of course, refers to provisions of the Charter in its judgments. There have already been over 300 references to the Charter in the decisions of the CJEU (including those of General Court and the Civil Service Tribunal).

One developing issue in the court’s more recent Charter jurisprudence is the manner in which the Charter is being used as an interpretative aid to other provisions of EU law.

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How the CJEU uses the Charter of Fundamental Rights

Aidan O’Neill QC

In the second of two blog posts, Aidan O’Neill QC considers the growing body of case law regarding the CJEU’s use of the Charter of Fundamental Rights.

No standing for Consumer Associations to challenge merger clearance decisions by the Commission

In Case T‑224/10 Association belge des consommateurs test-achats ASBLv Commission supported by Électricité de France (EDF) 12 October [2011] ECR II-nyr the General Court yet again rejected a challenge to its restrictive standing rules, this time brought by a consumer association who sought to challenge on behalf of consumers a clearance decision of the Commission allowing a merger between two undertakings to take place.  The Court rejected the consumer association’s argument that the Treaty and Charter provisions (Article 38 CFR), which require consumer-protection considerations to be taken into account in defining and implementing other EU policies and activities and for those EU policies to ensure a high level of consumer protection, meant that it should be recognised to have sufficient interest in a merger on behalf of consumers affected by it. Instead the Court stuck to its narrow definition of standing in the usual terms:

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How the CJEU uses the Charter of Fundamental Rights

Aidan O’Neill QC

In the first of two blog posts, Aidan O’Neill QC considers the growing body of case law regarding the CJEU’s use of the Charter of Fundamental Rights.


Since the coming into force of the Lisbon Treaty provisions according the Charter of Fundamental Rights of the European Union (“CFR”)  with “the same legal value as the Treaties” (Article 6 TEU), the CJEU now, as a matter of course, refers to provisions of the Charter in its judgments.  A recent search of the CURIA database reveals that the Charter of Fundamental Rights has been referred to in Judgments of the Court of Justice and of the General Court in over 250 cases.  This does not take into account the times when the Charter has been referred to and relied upon in Opinions of the Advocates General or in decisions of the EU’s Civil Service Employment Tribunal.

It is clear therefore that any understanding of the intent and effect of EU law has now to be done against a background of an understanding of the terms of the EU Charter of Fundamental Rights, as interpreted by the CJEU.

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A Quarrel in a Faraway Country?: Scotland, Independence and the EU

Aidan O’Neill QC

Arabella Thorp and Gavin Thompson, researchers in the International Affairs and Defence Section and the Economic Policy and Statistics Section of the House of Commons Library Research have jointly authored – for the benefit of UK Parliamentarians – a short paper entitled Scotland, Independence and the EU. The authors consider the possible legal consequences for the EU and the UK of Scottish independence and state:

“This is a major question in the independence debate, and one to which there is no clear answer. There is no precedent for a devolved part of an EU Member State becoming independent and having to determine its membership of the EU as a separate entity, and the question has given rise to widely different views.”

They note that there are at least three different possibilities under international law:

(i)              Scotland is to be regarded as a wholly new State, with the remaining Union of England Wales and Northern Ireland (EWNI) being treated in international law as a (territorially decreased) continuation of the UK. The authors cite the precedents of the 1947 partition of India and the creation of Pakistan, and of the 1962 translation of Algeria from a series of départements integrated into metropolitan France to an independent State.

(ii)            Scotland and EWNI are each to be regarded as successor States to the divided UK.   The authors refer in this context to the de-merger of the short-lived United Arab Republic (1958-1961) back into its original constituent States of Syria and Egypt

(iii)          neither Scotland or EWNI are to be regarded as successor States to the dissolved UK.   The authors here allude to the birth, in 1993, of two wholly new States, Slovakia and the Czech Republic, from the territory of the former Czechoslovakia.

On the first scenario (which Thorp and Thompson term “continuation and secession”) EWNI as the “continuing UK” would retain the UK’s pre-secession treaty obligations and its membership of international organisations, including the EU and NATO, the Council of Europe, the UN and the IMF.  Scotland would start with a blank slate in terms of treaty rights and obligations, and would have to apply to be admitted in its own right as a new member of all and any international organisations.

On the second scenario (which they call “separation”) Scotland and EWNI would each succeed to the UK’s existing international commitments, and would each automatically accede to the international organisations of which the UK was a member, but now as two States rather than as one.

On the third scenario (which the authors describe as “dissolution”) neither Scotland and EWNI would succeed to any of the UK’s international obligations or memberships. Both States, newly independent of each other, would have to sign anew any treaties they wished to be bound by, and enter into negotiations with any international organisations they wished to be members of.

Of course, as the precedents of the break-up of the former USSR and the break-down of the former Yugoslavia show, the reality is likely to be more complex and one which may change over time. In international politics, just as much as international law, context is everything. Thus, some States and international organisations may choose to recognise EWNI as the “continuing UK”, or as the sole successor State to the UK.  Others might prefer to hold both EWNI and Scotland to the UK’s prior obligations and memberships.  And yet others could seek to take advantage of what they would characterise as the “dissolution” of the UK to escape the international obligations formerly owed to it, and/or to declare the UK’s previous membership of international organisations to be void.  This is, in a sense, where international law runs out and international Realpolitik takes over.  Everything depends on the particular terms of constitutions of international organisations, the extent of international recognition and the degree to which an international consensus is reached as to the status to be accorded to an independent Scotland and/or to a continuing UK shorn of its northern territories.

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Publish and be Sued: But Where?

Aidan O’Neill QC

If defamatory material has been published on the Internet where can the defamed individual bring an action, and what law applies? These are the questions posed of the CJEU by the German Federal Court of Justice (the Bundesgerichtshof) and by the Tribunal de Grande Instance (Paris) in two cases – respectively eDate Advertising GmbH v. X, C-509/09 and Martinez v. Mirror Group Newspapers Limited, C-161/10  – which were heard and decided on together by the Grand Chamber of the Luxembourg Court on 25 October 2010.

The eDate Advertising case was brought in Germany against an Austrian domiciled company by a convicted murderer in respect of a cached website news report which named the murderer and his brother (who had been convicted along with him of the same crime), briefly described the crime of which they had been convicted, and noted that they had both lodged appeals against their convictions with the German Federal Constitutional Court (the Bundesverfassungsgericht). The matter at issue was whether or not the German courts had jurisdiction to hear and determine the brother’s application for an order restraining the Austrian company (in accord with German law) from giving his full name in its report.

The Martinez case was brought in France by a French actor and his father against a UK company, complaining that the web-publication by a British newspaper, the Sunday Mirror, of an article in English, with accompanying photographs, headlined “Kylie Minogue is back with Olivier Martinez” breached their privacy rights as guaranteed them under French law.

The issues of EU law for the CJEU to determine in each case involved the interpretation of provisions of the Brussels I Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and of Directive 2000/31/EC on the “free movement of information society services”.

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EU Law, Human Dignity and the Human Embryo: The Decision of the CJEU Grand Chamber in Brüstle v Greenpeace eV (C‑34/10)

Aidan O’Neill QC

The decision

In Oliver Brüstle v Greenpeace e.V (Case C‑34/10) the Grand Chamber was faced with the question as to whether EU law permitted the patenting of a process allowing for the production, from stem cells extracted from human embryos, of an almost unlimited quantity of isolated and purified precursor cells having neural or glial properties. The claim was made in the patent application that these neural precursor cells had a direct clinical application for individuals suffering from a variety of neurological diseases, such as Parkinson’s disease. These immature precursor cells were, by definition, still capable of developing and so might be transplanted into the nervous system of sufferers with the hope of there regenerating and repairing neurological damage sustained by the patient.

The problem from the perspective of EU law is that Article 6 of Directive 98/44/EC on the legal protection of biotechnological inventions which, so far as relevant states as follows:

Article 6

1. Inventions shall be considered unpatentable where their commercial exploitation would be contrary to ordre public or morality; however, exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation.

2. On the basis of paragraph 1, the following, in particular, shall be considered unpatentable:… (c)  uses of human embryos for industrial or commercial purposes.”

A legal challenge to Dr. Brüstle’s patent was brought in Germany by Greenpeace who argued that the patent involved the use of human embryos for industrial or commercial purposes.  Deciding that the issue required the guidance of the CJEU, the German Federal Court of Justice (the) referred the following knotty questions to Luxembourg:

“1. What is meant by the term “human embryos” in Article 6(2)(c) [of Directive 98/44/EC]?

(a) Does it include all stages of the development of human life, beginning with the fertilisation of the ovum, or must further requirements, such as the attainment of a certain stage of development, be satisfied?

(b)  Are the following organisms also included:

–  unfertilised human ova into which a cell nucleus from a mature human cell has been transplanted;

– unfertilised human ova whose division and further development have been stimulated by parthenogenesis?

(c) Are stem cells obtained from human embryos at the blastocyst stage also included?

2. What is meant by the expression “uses of human embryos for industrial or commercial purposes”? Does it include any commercial exploitation within the meaning of Article 6(1) of [of Directive 98/44/EC], especially use for the purposes of scientific research?

3. Is technical teaching to be considered unpatentable pursuant to Article 6(2)(c) of the Directive even if the use of human embryos does not form part of the technical teaching claimed with the patent, but is a necessary precondition for the application of that teaching:

- because the patent concerns a product whose production necessitates the prior destruction of human embryos,

- or because the patent concerns a process for which such a product is needed as base material?”

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The EU as a Marxian Project, or is it the economy, stupid ?

Aidan O’Neill QC

The Zollverein, or German customs union, was a scheme promoted by Prussia in the wake of the Napoleonic adventure, aimed at facilitating the greater economic integration of the patchwork or mosaic of sovereign kingdoms, States, principalities, duchies, independent City-States and archbishoprics which together had made up the Holy Roman Empire of the German nation. Begun in 1818 initially on the basis of territories directly controlled by the Hohenzollerns, Prussia’s ruling dynasty, it expanded over the next 50 years to encompass the vast bulk of the German-speaking territories of Mitteleuropa, with the exception of Austria-Hungary. By 1871 this German Economic and Monetary Union had become a full political union, with the territories within the Zollverein (other than the Grand Duchy of Luxembourg) merging to form the German Reich.

In the aftermath of the devastation wreaked within Europe by World War II (or the ‘Second European Civil War’ as the enthusiastically communautaire would have it) it was proposed that there be established – at least, among the democratic-capitalist successor States of post-War Europe – a new 20th-century customs union or Zollverein. And it is this European customs union or Zollverein that remains the nucleus of what is now the European Union project. Moreover, it was within the context of creating and sustaining this European customs union that EU law was developed to ensure the protection of the four freedoms – of workers, goods, services and capital – throughout the new customs-free area serving also as a Cold War bulwark against the spread of communism in post-War Europe.

From one (perhaps paradoxical) perspective on what some might consider to be the ultimate capitalist venture, it might be said that the European Union project is based on a classic Marxian (Karl’s, not Groucho’s) analysis of human relations and society, in that it presupposes that economics will ultimately determine politics. Thus if one successfully creates a fully economically integrated cross-border customs union in Europe, national politics will eventually wither away, to be replaced by a new supra-national European polity. Where the single internal market leads, the people(s) will follow.

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