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Home Archive for category "European Union"

Excessive Multilingualism in EU Trade Agreements

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The legal protection of multilingualism is an important principle and an indispensable guarantee for the functioning of the institutions of the European Union (EU) as well as for their relationships with EU citizens. This is not only evidenced by Article 22 of the Charter of Fundamental Rights, which obligates the Union to respect linguistic diversity. Beyond that, legally protecting multilingualism is, as the European Parliament stated, “not a matter of communication only, but also a question of democratic legitimacy towards citizens and respect for the cultural diversity of the Member States. It affects the way in which EU legislation is drafted and interpreted”.

Multilingualism is also well established in the EU Treaties themselves, concluded between the Member States in 24 equally authentic languages (Article 55 TEU), which can be interpreted authoritatively by the Court of Justice of the European Union (CJEU) whenever necessary.

The practice of the European Union is quite similar with regard to treaties concluded with non-Member States. In particular, several free trade agreements (FTAs) concluded or negotiated with such states have been drawn up in no less than 23 or 24 equally authentic languages. Read the rest of this entry…

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United in Mixity? The Future of the EU Common Commercial Policy in light of the CJEU’s recent case law

Published on February 2, 2018        Author:  and
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The post-Lisbon Common Commercial Policy in the field of foreign investment policy

The Lisbon Treaty for the first time expressly attributed exclusive competence to the EU in the area of foreign investment by adding foreign direct investment (FDI) to the scope of the Common Commercial Policy (CCP). The European Commission took not long to put these newly-won competences into use by designing its new European international investment policy. This new investment policy revealed the Commission’s broad interpretation of the competences conferred by the Lisbon Treaty. According to the Commission, the EU’s new common international investment policy should address both direct investment – i.e. investment made “with a view to establishing or maintaining lasting economic links” – and indirect investment, namely all those transactions involving debt or equity securities that do not establish a lasting economic link. Moreover, the common investment policy, as envisaged by the Commission, should cover both the pre-establishment and post-establishment phase.

The EU-Singapore FTA (EUSFTA) was the first trade agreement to rely on the EU’s competence in the field of common commercial policy as expanded post-Lisbon. This agreement embraces a wide range of fields, including trade in goods and services, government procurement, intellectual property rights, and investment liberalization and protection. All too predictably, the composite content of the agreement and, particularly, the inclusion of a chapter specifically dealing with investment protection and investment dispute settlement soon prompted the question of whether the EU’s new exclusive competence could be interpreted as encompassing both direct and indirect investment as well as investor-State dispute settlement mechanism (ISDS). Needless to say, the answer to this question has important practical implications. If the above policy fields and all other matters contained in the FTA were to fall within the scope of exclusive competence of the EU, then such agreements can be concluded as “EU-only” agreements. If these competences are shared, the agreement can be concluded either by the EU alone or as a mixed agreement, namely a treaty to which both the Member States and the Union are parties. Commentators usually distinguish this type of mixity (facultative mixity) from compulsory mixity, which applies when the agreement in question covers both matters falling within the exclusive competence of the European Union and matters falling within the exclusive competence of the Member States.

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Torture in Libya and Questions of EU Member State Complicity

Published on January 11, 2018        Author: 
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Amnesty International has reported that ‘tens of thousands’ of refugees and migrants are being subject to torture and other human rights abuses at the hands of Libyan state officials and non-state actors operating in, and out of, Libya (the full report can be accessed here). The publication of the report has led to allegations that the European Union (EU) is complicit in torture. One finding of the report is that ‘EU member states are and have been well aware of the widespread human rights violations and abuses suffered by refugees and migrants in Libya’ (p. 56). Amnesty International has claimed that EU states ‘are complicit’ in torture. Whether the complicity spoken of can trigger the responsibility of these states under international law is implied, but far from clear.

There are many tangents to questions of ‘European complicity’ in the torture of Libyan refugees and migrants. For example, issues regarding the obligation of non-refoulement (p. 53 of report), or the extraterritorial application of human rights obligations (pp. 54-56) (for insights on these particular matters see Gauci and Jackson respectively). The following post will briefly analyse the applicable secondary rules relating to how EU states could be held responsible for complicity in torture under general international law in light of the facts contained in the Amnesty report. Read the rest of this entry…

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New EJIL: Live! Interview with Merris Amos on her Article “The Value of the European Court of Human Rights to the United Kingdom”

Published on December 7, 2017        Author: 
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In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Professor Merris Amos of Queen Mary University of London, whose article “The Value of the European Court of Human Rights to the United Kingdom” appears as the first piece in the “Focus” section on Human Rights and the ECHR in issue 3 of volume 28 of the Journal.

Professor Amos takes up the challenge of articulating the value that the ECtHR adds to the objective of protecting human rights. Moving the focus from legitimacy, Professor Amos presents three different levels where the ECtHR adds value: individual, global and national. This serves as a framework for the discussion on the rise of negative sentiment towards the Council of Europe in the United Kingdom and introduces—as well as debating—the three levels of value added to the United Kingdom by the ECtHR. This conversation accompanies and expands on the article, including conjectures about the future of the European Convention on Human Rights in the United Kingdom.

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Those Who Live in Glass Houses….

Published on November 8, 2017        Author: 
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The European Commission launched an infringement procedure against Poland over measures affecting the judiciary a day after the publication in the Polish Official Journal of the Law on the Ordinary Courts Organization on 28 July 2017. Though the infringement procedure is formally distinct from the ongoing ‘Rule of Law Dialogue’ and the recommendations issued just a few days before commencement of such procedure, it comes under the latter’s penumbra; both form part and parcel of the Commission Press Release (IP-17-2205). If the concern was ‘The Rule of Law,’ at least in some respects there is more bang than buck. The President of Poland blocked the most controversial parts of the new judicial regime in Poland, so that the infringement procedure was left with just two violations.    

The first concerns a different retirement age for male and female judges. It is not clear if this distinction in the Polish law is by design or inertia but the infringement seems clear: what is sauce for Sabena (RIP) cabin attendant geese should be sauce for judicial ganders. But important as any form of gender discrimination is, this item in the Polish legislation does not directly concern the more troublesome aspects of political control over the judiciary and its independence. Should Poland not correct this anomaly, it should be an easy case for the Court.

The second item in the infringement procedure is far more serious. In the Letter of Formal Notice (the first stage in infringement procedures) the Commission raises concerns ‘…that by giving the Minister of Justice the discretionary power to prolong the mandate of judges who have reached retirement age, as well as dismiss and appoint Court Presidents, the independence of the Polish Courts will be undermined’ (id.), allegedly contravening a combination of Article 19(1) of the TEU and Article 47 of the EU Charter of Fundamental Rights – a legal basis which is creative but not specious.

If indeed the prolongation of the mandate of a judge reaching retirement age rests in the hands of a Minister, the government of which he or she is part and acts and/or legislation issuing from which might be subject to judicial scrutiny by said judge, it may well consciously or otherwise impact, for example, his or her conduct prior to retirement or, no less importantly, give the appearance of lack of independence. I think this is indeed a serious matter impinging on the independence and appearance of independence of the judiciary. It is one thing to have scrutiny and approval of judges by democratic bodies at the moment of appointment. But once appointed, the independence of the judge from political actors must be as absolute as possible, and this dependency described in the letter of intent clearly compromises such.

But there is an irony in this complaint; some might even think a ticking time bomb. At least on two occasions proposals were put to various Intergovernmental Conferences to amend the Treaties so that the appointment of Judges to the Court of Justice of the European Union should be for a fixed period of time – say nine years – as is undoubtedly the Best Practice in Europe among higher courts where appointments are not until the age of retirement. Ominously in my view, the proposals were rejected. So that now we live under a regime where the prolongation of Members of the Court(s) (Judges and Advocates General) rests in the hands of national politicians whose decisions and legislation may come before such judges. Read the rest of this entry…

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The European Arrest Warrant against Puigdemont: A feeling of déjà vu?

Published on November 3, 2017        Author: 
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On 2 November 2017, the Spanish State Prosecutor asked Carmen Lamela, a Spanish judge, to issue a European Arrest Warrant against Carles Puigdemont and four of his former ministers following the vote of secessionist Catalan MPs to declare independence. They face potential charges of sedition, rebellion and misuse of public funds. Carles Puigdemont, who arrived in Brussels a few days before the news of the warrant was made public, called in a Belgian lawyer to defend his case. The Spanish authorities may not be thrilled by his choice.

The Basque precedent

In 1993, Spain issued an extradition warrant against two Basque secessionists who fled to Belgium, Moreno Ramajo and Garcia Arrantz. They were accused of participating in an unlawful association and an illegal armed band. The Court of Appeal of Brussels issued an Advisory Opinion according to which, the warrant was founded on political crimes and therefore, the extradition request should not receive a favourable response. The Belgian Ministry of Justice nevertheless ruled in favour of the extradition. In the meantime, Moreno Ramajo and Garcia Arrantz lodged an asylum application in Belgium, which was received admissible for further consideration. The extradition procedure was put on hold until a final decision to reject their asylum applications was made in 1994 on the grounds that despite the fact that cases of abusive behaviours of Spanish authorities towards Basque secessionists existed, these were isolated cases. Therefore, the argument was that there was no reason to believe that the Spanish justice system would fail to provide them with a fair trial. Thus, the extradition request was pursued and accepted. Following this decision, the couple submitted a procedure of extreme urgency before the Belgian Council of State in order to stop their extradition. This was successful and their extradition did not proceed(E. Bribosia and A. Weyembergh, ‘Asile et extradition: vers un espace judiciaire européen?’ (1997)  at 73-77).

What happened after that? Read the rest of this entry…

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Is N.D. and N.T. v. Spain the new Hirsi?

Published on October 17, 2017        Author: 
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On 3 October the Third Chamber of the European Court of Human Rights published its judgment N.D. and N.T. v. Spain, which concerns Spain’s pushback policy in Melilla. It found a violation of Article 4 of Protocol 4 (prohibition of collective expulsions of aliens) and of Article 13 (right to an effective remedy) taken together with Article 4 of Protocol 4. This post focuses on the issues of jurisdiction and the prohibition of collective expulsions addressed in the judgment, as well as its policy implications. 

Facts

The facts of the case are straightforward: on 13 August 2014 a group of Sub-Saharan migrants, including the applicants, tried to enter Spain via the Melilla border crossing which consists of three consecutive barriers. They managed to climb to the top of the third barrier. When they climbed down with the help of the Spanish forces, they were immediately apprehended by members of the Spanish civil guard and returned to Morocco in the company of 75 to 80 other migrants who had attempted to enter Melilla on the same date. Their identities were not checked and they did not have an opportunity to explain their personal circumstances or to receive assistance from lawyers, interpreters or medical personnel.

Jurisdiction

Spain argued that the events occurred outside its jurisdiction because the applicants had not succeeded in getting past the barriers at the Melilla border crossing and therefore had not entered Spanish territory. The Court first recalled its general principles on jurisdiction (paras 49-51), referring in particular to Hirsi Jamaa and Others v. Italy, and specifying that when the State, through its agents, exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation to secure the rights and freedoms that are relevant to the situation of that individual (para 51). Applying these principles to the facts of the case, the Court first observes that:

‘la ligne frontalière entre le Royaume du Maroc et les villes de Ceuta et de Melilla a été délimitée par les traités internationaux auxquels les Royaumes d’Espagne et du Maroc sont parties et qu’elle ne peut pas être modifiée à l’initiative de l’un de ces États pour les besoins d’une situation de fait concrète’ (para 53).

Yet in the next paragraph the Court explains that it is unnecessary to establish whether the border crossing between Morocco and Spain is located on Spanish territory because:

dès lors qu’il y a contrôle sur autrui, il s’agit dans ces cas d’un contrôle de jure exercé par l’État en question sur les individus concernés (Hirsi Jamaa, précité, § 77), c’est-à-dire d’un contrôle effectif des autorités de cet État, que celles-ci soient à l’intérieur du territoire de l’État ou sur ses frontières terrestres. De l’avis de la Cour, à partir du moment où les requérants étaient descendus des clôtures frontalières, ils se trouvaient sous le contrôle continu et exclusif, au moins de facto, des autorités espagnoles.

Read the rest of this entry…

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Offshore Processing and Complicity in Current EU Migration Policies (Part 2)

Published on October 11, 2017        Author:  and
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In the first part of our blog post we reconstructed a complex web of migration policies that indicate a shift towards offshore processing of asylum claims in Niger and possibly Chad. In this second part, we seek to answer an obvious yet difficult legal question, namely who bears responsibility in scenarios of extraterritorial complicity such as this one? As described in part one, the new plan could not be implemented without the close cooperation of various actors: European Union (EU) institutions and Member States, third countries (Niger and/or Chad) and UN organisations (IOM and UNHCR).

Our discussion focuses on issues of responsibility and jurisdiction arising when bringing a case to the European Court of Human Rights (ECtHR) against any of the Member States involved in the setting up and implementation of the offshoring mechanism. Read the rest of this entry…

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Offshore Processing and Complicity in Current EU Migration Policies (Part 1)

Published on October 10, 2017        Author:  and
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It has certainly been a busy summer in terms of developments in European Union (EU) migration policies. From an intensification of cooperation between Italy and the Libyan Coast Guard to intercept and ‘pull back’ migrants at sea; to a controversial Code of Conduct for non-governmental organisations involved in migrants’ rescue operations at sea; and the further mobilisation of funds for the EU-Africa Trust Fund, things have been all but calm on the Southern European front.

Together with images of a right-wing Defend Europe ship sailing the Mediterranean to track the activities of humanitarian NGOs, the summer has also left behind renewed plans for offshore processing centres to identify persons in need of international protection outside of the EU. On 27 September 2017, the European Commission presented its new plans for a ‘stronger, more effective and fairer EU migration and asylum policy’, aimed at ‘enhancing legal pathways for persons in need of international protection’. Whilst press releases emphasise the resettlement aspect of the plan, a closer analysis of the official documents and related policies issued throughout the summer, reveals a slightly different picture.

In this first blog post we reconstruct a complex web of EU migration policies that, in our view, indicate a shift towards extraterritorial protection, and more specifically the introduction of a multi-stakeholder mechanism for the offshore processing of asylum claims in the Sahel. Read the rest of this entry…

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Is Ukraine a “Stranger” to the EU? OPAL Case

Published on August 28, 2017        Author: 
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In their recent contribution to the Global Trust Working Paper Series, Professor Eyal Benvenisti and Dr. Sivan Shlomo Agon raise one conspicuous, though rarely asked, question within a broader topic of state sovereignty in a globalised world. They wonder how sovereign decision-making powers can be restrained in the face of interests of “strangers”, i.e. third countries, as well as natural and legal persons, to which the effects of national policies “radiate” without allowing them to hold the decision-makers politically accountable. The authors make the first proposition that:

“international courts can and in fact do play a role in promoting the duties of states towards strangers affected by their policies, thereby alleviating some of the democratic and accountability deficits associated with globalization” (p.2).

Their second proposition is that international courts have developed ways to account for the “interests of affected others from within and outside” their host systems. Both propositions are then tested against the ample practice of the WTO dispute settlement system.

The article echoes well in the universe of “global administrative law” (GAL), i.e. a normative paradigm promoted by Professor Benvenisti which introduces practices of accountability (transparency, good process, reasoned decision-making, and basic legality) in what would otherwise be a non-democratic process of global administration. (For early conceptualizations of GAL, see the EJIL’s symposium issue).

The article is also provocative as it resonates far beyond the ambit of the WTO law. The present note offers to look for the advanced propositions in a group of energy-related cases currently pending before the Court of Justice of the EU (CJEU).

Admittedly, international energy law is rarely scanned for general international law trends and patterns. This may be due to the highly technical complexity of the underlying field of study, combined with the traditional view of energy as a nation state prerogative (recall General Assembly resolution 1803 (XVII) of 14 December 1962 “Permanent sovereignty over natural resources”). Yet, the intensity of present-day energy cooperation, spurred by critical socio-economic and even geopolitical needs, has effectively isolated exclusively national areas of regulation (e.g., access to upstream energy resources) and produced a layer of new, inherently international rules of community building. Read the rest of this entry…

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