Appointments to the Luxembourg Courts – Part 2

Christopher Brown

The Foreign and Commonwealth Office has recently commenced the selection process for appointing the UK’s next judge at the Court of Justice.  He or she will succeed Sir Konrad Schiemann, who retires next summer.  The process consists of an open competition: the FCO’s website states that the successful candidate will be appointed on merit and in accordance with the Equality Act 2010.  Coincidentally, a parallel process for the appointment of the UK’s next judge at the European Court of Human Rights (ECtHR) is also underway; the deadline passed just a few days ago.

This reminded me that in a post in October I mentioned that Lord Mance of the UK Supreme Court was about to give the UKAEL Annual Lecture on “The Composition of the European Court of Justice”.  The text of that lecture has recently been made available.  It makes for interesting reading.  He charts the evolution of appointments to international courts and tribunals, in particular the Luxembourg and Strasbourg Courts, highlighting that until recently nominees to the Court of Justice were simply endorsed by the Governments of the Member States without any real discussion.  The one Luxembourg court which since its inception in 2005 has had an element of competition is the Civil Service Tribunal; at present, it is in splendid isolation on that front, although there may soon by a hybrid structure for the General Court, as noted in my earlier post.

Among the pertinent points Lord Mance makes are the following:

  • Tenure of judges remains six years renewable; no amendments to this rule were made by the Treaty of Lisbon.  It is therefore unavoidable that some judges may (or may appear to) feel under stress as to whether they will be reappointed.  That risk is diminished by the fact that deliberations are in secret and result in single judgments; but “the practice of unanimous judgments may sometimes be regretted, for the obscurity of committee style compromises to which it may lead”; there is also a strange contrast with the ECtHR, which permits minority judgments – a practice “which prevails satisfactorily”.

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“Repatriating powers” from Brussels – an uphill struggle?

Christopher Brown

There has been much talk in domestic political circles recently, much of it from Conservative backbenchers and sympathetic commentators, about the need to “repatriate” powers from Brussels. What they seem to be talking about is removing certain law-making powers from the EU institutions or repealing particular laws which they take particular objection to, such as the so-called Working Time Directive. Some see such measures as impacting on competitiveness and adding further layers of red tape; others have more ideologically-driven objections.

Putting the merits of these calls to one side, such talk is curious from the perspective of EU law. First of all, if the UK wished to see the law-making powers of the EU institutions reduced, that would require a Treaty amendment. And that, of course, would require the agreement of all 27 Member States. Given that many Member States are likely to be supportive of the current labour law position, it is unrealistic to think that there will be any general narrowing of EU competence in this respect. So the question is whether the UK should be placed in a special position – and here, too, it is unlikely that the UK will get its way, no matter how much horse-trading the UK is willing to engage in.  Whilst it appears that there will need to be a Treaty amendment to help deal with the Eurozone crisis, many Member States would be intensely uncomfortable with the idea of allowing the UK to roll back on its current Treaty commitments: if the UK could do it, others would likely wish to do likewise, discarding the bits of EU law which they least liked.  And there is the separate question of how radical the Eurozone-related Treaty amendment would be in any event: would the UK have the chutzpah to demand a re-opening of old issues in return for its support for the bailout measures, which are arguably in its interests as much as other Member States’?  There is surely a good argument that engaging in political opportunism here would be deleterious to the UK’s longer term negotiating position in Europe.

So if the limitation of competences is unrealistic, how about amending or limiting the impact of the WTD itself?  Well, there is little chance of the WTD itself being repealed, and, as any EU lawyer knows, directives are applicable across the board – there is no option to seek an opt-out from it.  So this looks like a blind alley, too.

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Broadcasting of Premier League football and territorial exclusivity: what exactly is the impact of EU law?

Christopher Brown

The recent judgment of the Court of Justice of the European Union (CJEU) in FAPL v QC Leisure has generated significant comment in the media and elsewhere: few judgments will generate such fevered anticipation and analysis in 2011 as this one.  It was hailed as a victory for Karen Murphy, the pub landlady who bought a decoder card enabling her to show Greek broadcasts of FA Premier League matches in her pub rather than Sky’s and who was subsequently convicted of offences stemming from infringements of domestic copyright legislation.  Whether it is as simple as that, however, remains to be seen.

In particular, as a result of the Court’s judgment there is a distinction to be drawn between private subscribers and those such as Ms Murphy who purchase a decoder card in order to show matches to the wider public.  It is still unclear whether publicans are allowed to show Premier League games using a broadcast from another EU country: the Court held that the FAPL does own copyright in the anthem and logos used during broadcasts, and arguably can restrict their “communication to the public”, as the Copyright Directive puts it.  This important issue, along with the other IP issues raised by the case, is dealt with in the accompanying post  by Dr. Stuart Baran.

The rest of this piece focuses on the free movement and competition law issues raised by the judgment.  Whilst the Court has displayed (once again) its firm pro-single market tendencies, looking unfavourably on the rigid partitioning of markets along national lines, the judgment is just as notable for what it does not say: in particular, the relatively narrow basis for its judgment contrasts with the approach proposed by the Advocate General (AG) which, had it been followed, would have been more worrying for owners of media content generally.

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Appointments to the Court of Justice and General Court – important developments

Christopher Brown

Lord Mance is giving the UKAEL Annual lecture on the “Composition of the Court of Justice” tonight. It ought to shed some light on the murky world of appointments to the Luxembourg courts, where judges are appointed by the Member States without necessarily having gone through any sort of competition beforehand (though this is not, thankfully, the case here in the UK).  Lord Mance sits on the panel set up under the Lisbon Treaty to scrutinise proposed appointments and give its opinion on the candidates’ suitability for office. The establishment of the panel is a welcome development, although many will say it is no substitute for an open competition.

In this connection, there have been some interesting developments in Brussels and Luxembourg. Back in March of this year, the Court of Justice of the European Union (CJEU) presented a proposal to amend in various respects the Court’s Statute. The most interesting proposal was to expand the size of the General Court (GC) from 27 judges to 39. The CJEU is rightly concerned about the length of time it currently takes to process cases – often upwards of 3 years – which risks compromising the right to effective judicial protection (enshrined in Article 47 of the Charter of Fundamental Rights). The backlog has been of concern to practitioners for some time. There are a number of reasons for it, one of which is the increased litigation which has come the GC’s way following the 2 rounds of accession to the EU in the last decade. Urgent action is certainly called for – hence the sensible suggestion to increase the GC’s size.

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EUtopia law – the official launch!

Christopher Brown

Last night saw the official launch of the EUtopia law blog. It coincided with the launch of Aidan’s new book, EU Law for UK Lawyers, which I would naturally commend to anyone interested in the role EU law has to play in our domestic legal systems. Both Aidan and Professor Takis Tridimas (Professor of Banking Law, QMUL, and Associate Member of Matrix Chambers) gave talks under the broad rubric of What Future for Europe? The evening was generously chaired by Sir Patrick Elias. Aidan’s paper and Takis’s slides can be found below.

‘The unbearable lightness of being…European’ Aidan O’Neill QC

The EU and the right to judicial protection. Some Reflections. Professor Takis Tridimas

Separately, we are delighted to announce that EUtopia law will shortly be joining the Guardian Legal Network.  Our thanks to the Guardian for the invitation.

Forthcoming EU law events

Christopher Brown

From time to time we will draw to readers’ attention to lectures, seminars, conferences and other events concerned with EU law which promise to be interesting and insightful.  Many of these will be UK-based events, but we will also point out events elsewhere.

Here are a few events, in chronological order, which have caught our eye recently:

1. European Convergence?  The European Union’s Participation in the European Convention on Human Rights

In view of the recent publication of a draft agreement on the accession of the EU to the ECHR, this conference, organised by the British Institute for International and Comparative Law, ought to be very topical.  It will take place at the Society of Edinburgh on Friday 14 October.  It will be chaired by Sir David Edward, formerly the British judge at the Court of Justice, and features a range of eminent speakers including the Deputy President of the UK Supreme Court, Lord Hope. 

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Proportionality and intensity of judicial review under EU law: clear as mud?

Christopher Brown

On 17 June 2011 the Court of Appeal gave judgment in an interesting case concerning the legality of a measure prohibiting the use of cigarette vending machines, commonly seen in pubs and bars: R (Sinclair Collis and Another) v Secretary of State for Health [2011] EWCA Civ 437.  It raised the now frequently encountered doctrine of proportionality under EU law. It was common ground that the measure, contained in secondary legislation, was caught by Article 34 TFEU (ex Article 28 EC) on the free movement of goods – most if not all machines are imported from continental Europe – and that the Government’s pleaded justification, namely that the measure pursued the objective of protecting public health, was prima facie a good one (see Article 36 TFEU).  The debate concerned the issue of whether the ban was proportionate.

For those who have not read the judgment, it may come as a surprise to hear that it is some 76 pages long and contains long reasoned judgments from all 3 members of the Court. Why so? The simple answer is that they all approached the matter differently. The majority – the Master of the Rolls (MR) and Arden LJ – came to the same conclusion (just about) but by different means, whilst Laws LJ issued a long dissenting judgment.

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Addressing market distortions created by failure to implement EU law – what can a Member State do?

Christopher Brown

On 2 September, the Environment, Food and Rural Affairs Select Committee published a report into the implementation of the Welfare of Laying Hens Directive. What is so interesting about that, you may ask. The answer is that it discusses, albeit briefly, an important issue in EU law: what happens when one Member State (here, the UK) implements a directive in relation to a particular product on time but certain other Member States do not, with the effect that some products of that type imported into the UK are not compliant with the directive? Can the UK take unilateral action against those products, banning their import until the Member State of provenance takes the necessary action? Or is it tough luck, with the compliant Member State having to rely on the Commission to commence infraction proceedings against the offending Member State(s)?

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