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Home Archive for category "European Union"

To Forget, But Not Forgive: Why the CJEU’s Latest Ruling on Google and the ‘Right to Be Forgotten’ is Not at All a Win for US Tech Giants

Published on November 29, 2019        Author: 

 

Google has recently triumphed in the fight against a worldwide application of the European “right to be forgotten” following the European Court of Justice’s ruling that Google does not have to take down search results revealing sensitive personal information of EU citizens worldwide, rejecting demands by the French Data Protection Authority. The long anticipated judgment by Europe’s top Court in Google v CNIL, delivered on 24th September 2019, was a test of the ‘right to be forgotten’, which allows EU citizens to request, among other things, the removal of search engine results that reveal their personal information. This right is now explicitly recognised in Article 17 of the influential EU’s General Data Protection Regulation (GDPR).

The ruling has been welcomed by US tech giants as an iconic curb of what they see as a ‘European overreach’- extension of its laws beyond borders.  However, not many have noticed that the Court intentionally left a glaring loophole – an opportunity for EU countries to force worldwide de-listing if they deem so fit. In other words, EU countries could still compel Google to de-list beyond Europe, and this decision comes as no surprise in light of the broader context of EU’s pushback against US tech giants.

In the wake of Edward Snowden’s 2013 mass-surveillance revelations about US spying on ordinary citizens and world leaders alike, Europe’s top Court demonstrated leadership by taking a hard line stance on the enforcement of data privacy law, even against other EU bodies. Although many have perceived the latest judgment as a restraint on the Court’s expansive interpretation of EU law, the CJEU  has in fact continued its hard line data privacy crusade with this judgment, which has significant implications for data privacy law, US tech companies, and Internet users. Read the rest of this entry…

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Why Lagarde’s ECB Appointment is (Almost Certainly) Unlawful

Published on July 30, 2019        Author: 

On 2 July, after three days of infighting and political horse-trading, the European Council reached an agreement on appointments to the EU’s ‘top jobs’. To say that these have been controversial would be an understatement, not least because of the process leading to the appointments. The Council’s decision was reached behind closed doors. There was no public scrutiny of the appointees or their agenda for the Union. The European Parliament was all but ignored, as the Council defied the ‘Spitzenkandidaten’ process to appease the leaders of the Visegrad Group. Even the very liberal and pro-EU Guardian conceded that this isn’t an obvious advertisement for the project.

A lot has already been written on the controversies surrounding the four appointees, including the ongoing probe into von der Leyen’s awarding of contracts at the German’s defence ministry and the various corruption allegations against Josep Borrell, the Council’s pick for the role of High Representative for Foreign Affairs. However, Christine Lagarde – chosen to head the European Central Bank – has been largely immune from those controversies. In this post, I argue that insufficient attention has been paid to the fact that Lagarde was actually convicted of a criminal offence for her role in a major financial fraud case and that this raises serious questions regarding the legality of her appointment. Following a brief summary of Lagarde’s role in the Tapie Affair, I examine the rules governing the appointment of the ECB President under the EU Treaties. Other sources of law may be envisaged, such as general principles of EU or global administrative law. But these are beyond the purview of this post and, as will become apparent, my view is that there is sufficient ground under the EU treaties to argue that Lagarde’s criminal conviction renders her appointment invalid and thus liable to judicial review and annulment. Read the rest of this entry…

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Brexit, the Northern Irish Backstop, and Fundamental Change of Circumstances

Published on March 18, 2019        Author: 

If, dear readers, you have any doubts that the parliamentary politics of Brexit have emerged from the fever dream of some demented game theorist, I would just ask you to take a very quick look at the events of last week. In their second meaningful vote on Theresa May’s Brexit deal, British MPs voted it down by 391 votes to 242, a majority of 149. This was an improvement of sorts on the first meaningful vote, which May lost by a majority of 230. MPs also voted to reject a no-deal Brexit and to instruct the government to ask the other EU states for an extension to the Article 50 withdrawal period. At the same time, by a majority of only 2 votes they defeated the Benn amendment, which would have allowed Parliament to express its preferences as to the outcome of the Brexit process in a series of indicative votes, and thus overcome the current impasse.

This week Theresa May seems poised to take her deal to the Commons for a third meaningful vote, most likely on Tuesday or Wednesday, before the EU Council meets on Thursday. She has worked furiously over the past few days to lobby the Northern Irish DUP and the hard-core Brexiteers within her party to vote for her deal, or risk either a very long extension to Article 50 or the UK remaining in the EU after all. This fear is of course the main incentive to bring the various pro-Brexit factions within Parliament and the Tory party to support May’s deal, and it is growing in power as the Article 50 deadline approaches. But because some of these factions have effectively painted themselves into a corner over the supposed downsides of May’s deal, they need something more than fear itself to justify a change of mind to their electorate. They need, well, a fundamental change of circumstances, like re-revised legal advice from the UK Attorney-General, Geoffrey Cox QC. And they may well eventually find that in the customary rule on fundamental change of circumstances, rebus sic stantibus, codified in Article 62 of the Vienna Convention on the Law of Treaties.

Now, if even after two full years into this whole MCFoHP someone told me that Brexit could ultimately depend on Art. 62 VCLT, I would have been perplexed, to put it politely. This is, for all its Roman pedigree, a rule that has never successfully been applied in real life, I would have said. Its requirements are almost impossibly strict. How could something as important as Brexit depend on an international law doctrine of such relative obscurity that even international law textbooks standing at more than a thousand pages devote it less than two? To paraphrase the late Ian Brownlie’s pithy assessment of jus cogens, the rule on fundamental change of circumstance is a car that has never left the garage.

But – but – over the past week the garage doors have creaked open, with a whiff of something tart and pungent. The stillness of things has become disturbed.

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Brexit Means Brexit: Does It so When It Comes to EU Citizenship?

Published on March 15, 2019        Author: 

Following a dramatic referendum, the United Kingdom triggered Art. 50 of the TEU in March 2017 officially commencing its withdrawal from the EU. At first glance, one of the many consequences of the move is the loss of EU citizenship for all British citizens as they will no longer be ‘holding the nationality of a Member State’ (TFEU, Art. 20(1)). This means losing all the perks that go with an EU passport, among them the freedom of movement, residence, and employment across the Union (id., Art. 20(2)).

A broader question of fairness and justice arises when ca. sixteen million people who have not voted in favour of leaving the bloc and have not committed any fraud or deceit are going to be stripped of their EU citizenship, and all of the privileges associated therewith. Not surprisingly, there have been some speculations on whether (and how) EU citizenship can be preserved by the Brits.

EU Citizenship

In its contemporary form, EU citizenship was established by the TEU back in 1992 providing that an EU citizen is ‘[e]very national of a Member State’ (Art. 9). The drafters of the Treaties could easily avoid using the term ‘citizenship’ and simply assign all the rights to nationals of the Member States but did not do that (William Thomas Worster, Brexit and the International Law Prohibitions on the Loss of EU Citizenship 15 International Organizations Law Review 341, 348 (2018)). However, the true roots of EU citizenship can be found in the Treaty of Paris signed in 1951. The Treaty virtually denounced any restrictions in the employment of professionals ‘in the coal and steel industries’ (Art. 69). Read the rest of this entry…

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Negotiating Brexit in the Shadow of the Law of Treaties

Published on March 12, 2019        Author: 

It is an extraordinary day in British politics today, with the Prime Minister’s ‘enhanced’ Brexit deal to be voted on in Parliament later this evening. The outcome of today’s vote, and the votes that may follow later in the week, is of course anyone’s guess (although the WA will likely be voted down). I have now read through the Attorney-General’s new legal advice on the revised deal and have been following the debate in the House of Commons, and was struck by how remarkably the various issues being debated turned around the customary law of treaties, which operates by default, in the background, unless the UK and EU agree differently. Here are just some – readers are of course invited to discuss any relevant matter in the comments:

(1) What is the legal nature of the Joint Instrument relating to the Withdrawal Agreement, and what are its legal effects? Is it an agreement in the sense of Art. 31(2)(a) VCLT, which defines the ‘context’ of the treaty? Is it something even stronger, an ‘authentic interpretation’ of the WA? Is is also a separate treaty, even though it is not called such, because it is a written agreement between a state and an IO governed by international law, which sets out further obligations that were not in the WA? (The latter is the position of the UK government).

(2) Note in that regard the superb example of constructive ambiguity of the final paragraph of the Instrument, which allows the EU to say, on one hand, that the WA was not reopened or changed as the Instrument simply interprets the WA, and for the UK to argue that meaningful legally binding changes were made to the deal:

Note that this instrument provides, in the sense of Article 31 of the Vienna Convention on the Law of Treaties, a clear and unambiguous statement by both parties to the Withdrawal Agreement of what they agreed in a number of provisions of the Withdrawal Agreement, including the Protocol on Ireland/Northern Ireland. Therefore, it constitutes a document of reference that will have to be made use of if any issue arises in the implementation of the Withdrawal Agreement. To this effect, it has legal force and a binding character.

(3) Similarly, what is the legal nature and effects of the UK’s Unilateral Declaration? Is it simply an interpretative declaration by the UK, which is of itself incapable of having any direct legal effects, being simply a statement of the UK’s position? Or is it something more, especially because the EU has not objected to it?

(4) There seems to be consensus that the customary rules on denunciation and suspension of treaty obligations have been displaced by the express dedicated provisions of the WA. This seems to apply also for termination or suspension due to material breach. The WA does not allow the UK to exit the backstop unilaterally; it can only suspend obligations arising from it if the EU is shown to be acting in bad faith and this is determined by the arbitral tribunal established by the WA.

(5) However, the UK’s position is that it CAN unilaterally terminate the WA or the backstop Protocol in case of fundamental change of circumstance/rebus sic stantibus. The Attorney General was explicit on the point repeatedly in the Commons. Never has more been at stake, it seems, regarding the interpretation of the rule in Art. 62 VCLT.

We’ll obviously have to wait and see how this will play out, but again it is clear that Brexit is being shaped critically by the background operation of the law of treaties. It is also remarkable how much importance has been given to questions of form, i.e. how crucial it is for many MPs whether a particular obligation is political or legally binding. Readers may also be interested in the Attorney’s new advice; the Attorney’s prior advice on the WA; an opinion by David Anderson QC, Jason Coppel QC, and Sean Aughey; and an opinion by Philippe Sands QC and David Edward QC.

 

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A Frontstop Approach to the Backstop Conundrum

Published on January 29, 2019        Author: 

The EU, understandably, wants to preserve the integrity of its customs and regulatory territory. The UK and Ireland wish to preserve, post Brexit, the integrity of the Good Friday agreement which implies an open border between the Union and a non-Member State. Herein is born the famous “Backstop” conundrum – the solution ‘de jour’ being the UK remaining in a Customs Union with the EU. 

Like many Europeans I find the thought of the Union without the UK distressing and a no-deal exit even more so. But one should not therefore obfuscate the terms of the ongoing debate. 

A Customs Union, we all know, comes with a price – notably the inability of the UK to conclude independent trade agreements – a price not all Brexiteers are willing to accept, at least not as a permanent arrangement or at least not as something forced upon them deus ex machina. It is also unlikely that the Union would allow the UK to have more than a consultative voice in future EU trade agreements which, of course, would bind such a Customs Union. Another unpalatable dish.  

But all this, we are told, will disappear when Final Status negotiations between the EU and the UK will conclude.  

The notion that final status talks will bring an end to a Customs Union Backstop  obscures one very uncomfortable catch 22 truth. The need for the Backstop will disappear if, and only if, the final status talks result in the UK remaining, one way or another, de jure or de facto,  in an EU Customs Union applying the Common External Tariff!

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A Second Brexit Referendum – What Makes You Think They Will Have You Back?

Published on November 26, 2018        Author: 

The call for a second Brexit Referendum is still alive, some say more than ever. It is probably unlikely and, even if it were to take place, there is no certainty that the Remain camp would win. But it is somehow based on the assumption that if such a referendum were held, and the Remainers would win (probably a narrow victory) and that if, as a result, the UK Parliament were to change its mind and elect to remain, that on the basis of this unilateral decision of the UK the status quo ante would be restored and British membership of the Union would continue unabated.

This is very unlikely to be the case.

First there is the legal issue regarding such a unilateral withdrawal of the Article 50 notice.

As is well known, a Preliminary Reference from Scotland will be decided this month in an expedited procedure and before a plenary forum of the ECJ, trying to clarify the legal parameters of a British change of mind whether through a referendum or otherwise.

The Reference definitely has some elements of an Affaire Bidon but I predict the ECJ will not opt for inadmissibility in this case. On the merits it is likely that it will  reject the two ‘bookend’ arguments and instead go for the centre. It is most unlikely that it will hold that once Article 50 notice has been served the process is irreversible and that the only way back, even before the deadline for formal exit arrived, is an Article 49 admission procedure. It is, in my view, equally or even more unlikely that it would hold that the UK could unilaterally withdraw its notice and that, with no more, its Membership would continue unabated. The UK drives everyone crazy for close to three years and then, oops, just as the Clock Strikes One, the Mouse is to run down as if nothing happened?

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UNCITRAL and ISDS Reforms: Moving to Reform Options … the Politics

Published on November 8, 2018        Author: 

In the last blog, I provided an update on the UNCITRAL process, including the consensus decision from Vienna last week to move forward to consider possible reforms of investor-state arbitration. This decision is very significant. But to get a sense of how this decision was reached and where the process might be heading, I thought it would be helpful to provide my sense of the politics of the process as well as some projections about how it might move forward.

As stated previously, I am a member of the Australian delegation but I am included in that delegation in my independent academic capacity, so nothing in my writings or talks should be taken to reflect Australia’s views. My academic views are exactly that: mine and academic. Nevertheless, I hope that these views are informed. These blogs are based on official interventions during the UNCITRAL plenary sessions as well as discussions with a diverse range of actors from the process.

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UNCITRAL and ISDS Reforms: Moving to Reform Options … the Process

Published on November 7, 2018        Author: 

Last week has been described as a watershed moment for ISDS reform. During a meeting in Vienna, states decided by consensus on the desirability of developing reforms in UNCITRAL with respect to investor-state arbitration. States now have an opportunity to make proposals for a work plan about what reforms to consider and how to go about considering them. To the extent that the tide has turned on traditional investor-state arbitration, it is now up to states to tell us where they want to sail.

As you might imagine, reaching a decision like this involved quite a process, along with a lot of politics. In this blog, I set out the process in terms of what was decided in Vienna, what was not decided, and what the next steps will be for moving forward in 2019. In the next blog, I will provide some context to this development, giving some insights into the politics of the process as well as some projections about how this process might develop.

This reform process will be long and its ultimate outcome remains unknowable. But the momentum for and direction of reforms are becoming increasingly clear. The calls for systemic reform are rising, though different states may mean different things by “systemic.”

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The Spectre of Trexit: Proposal to Reintroduce the Death Penalty in Turkey

Published on October 10, 2018        Author: 

On 1 October 2018, just ten days before the European and World Day against the Death Penalty, the only elected member of parliament of the BBP – a Turkish ultra nationalist party – submitted a draft legislation proposal to Parliament asking for the reintroduction of the death penalty in Turkey. The proposal reintroduces the death penalty for the murder of children and women through sexual means and for killings carried out as part of individual or organised acts of terrorism.

In its justification for the proposal, Burhan Ekinci, the MP in question, highlights the need to restore justice for victims of these hideous crimes, and the need to enhance the trust of the Turkish public in the fairness of the Turkish criminal justice system.  In his proposal, Ekinci argues there is no death penalty in Turkey because of ‘international agreements’ (in quotation marks) and what he labels ‘domestic dynamics’. Ekinci also expresses his disgust for the dishonesty of so-called humanism which, he claims, puts the rights of perpetrators above those of the victims of the most serious crimes. 

This proposal, of course, may not find support in the Turkish Parliament and fade away. Evidence, however, shows that the proposal should not be taken lightly. If it does succeed, it can be Turkey’s Trexit, ending Turkey’s long standing relationship with European institutions.

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