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Home International Tribunals Archive for category "European Court of Justice"

Those Who Live in Glass Houses….

Published on November 8, 2017        Author: 

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 Polisario case: Do EU fundamental rights matter for EU trade policies?

Published on February 3, 2017        Author: 

On 10 December 2015, the General Court of the European Union (GC) rendered a judgment in the Council v. Front Polisario case that was revolutionary in many regards: not only did a national liberalization movement successfully challenge an EU trade agreement, the Court also considered the EU Charter of Fundamental Rights (CFR) applicable to non-EU citizens on a non EU-territory and in the context of trade policies (see previously, Geraldo Vidigal in EJILTalk).

A month ago and a year later, the European Court of Justice (ECJ) quashed the decision of the GC and denied legal standing for the Front Polisario. However, the door for a role of EU fundamental rights as a benchmark for EU trade policies is not yet closed. To the contrary, the ECJ’s conclusions brought to the fore an ugly truth that shows that the extraterritorial effects of EU trade policies are in urgent need of closer scrutiny.

Read the rest of this entry…

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Trade Agreements, EU Law, and Occupied Territories (2): The General Court Judgment in Frente Polisario v Council and the Protection of Fundamental Rights Abroad

Published on December 11, 2015        Author: 

This is a follow-up to my July post on Action for Annulment Frente Polisario v Council (Case T-512/12), a case before the General Court of the European Union (GC) in which Frente Polisario – the National Liberation Movement for Western Sahara – seeks the Annulment of the EU Council decision adopting the 2010 EU-Morocco Agreement on agricultural, processed agricultural and fisheries products. The GC delivered its judgment yesterday, both recognizing the standing of Frente Polisario and granting the (partial) annulment of the decision, with implications for EU-Morocco relations and for EU external relations law more broadly.

(1) Standing of Frente Polisario under Article 263 TFEU

As regards standing, the most striking aspect of the judgment is that the Court accepted the Frente’s entitlement to plead as a ‘moral person’, with the ‘necessary autonomy’ to challenge a decision of the EU legislator (paras. 50-53), without reference to the sui generis character of Frente Polisario or to the unique situation of Western Sahara. This would seem to open the door for other ‘autonomous entities’, even those with no claim to international legal personality, to challenge EU decisions under Article 263 TFEU.

By the same token, the Court fell short of recognizing the Frente’s legal personality under international law. Read the rest of this entry…

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The Ballad of Google Spain

Published on September 7, 2015        Author: 

This poem was submitted for our Last Page, but given its wit and topicality I thought it should go on our First Page, namely in this Editorial. Kudos to Paul Bernal.

There was a case, called ‘Google Spain’
That caused us all no end of pain
Do we have a right to be forgotten?
Are Google’s profits a touch ill-gotten?

From over the pond came shouts of ‘Free Speech!’
So loud and so shrill they were almost a screech
From the ECJ came a bit of a gloat
‘We’ve got that Google by the throat!’

Said Google ‘If it’s games you play’
‘We’ll do that too, all night and day’
So they blocked and blocked, and told the press
‘It’s that evil court, we’re so distressed’

’Such censorship,’ they cried and cried
Though ‘twas themselves who did the deeds
They didn’t need to block the links
They were just engaging in hijinks

And many stood beside them proudly
Shouting ‘freedom’, oh so loudly
‘Google is our free-speech hero!’
‘We’ll fight with them, let’s be clear-oh!’

Others watched and raised their eyebrows
Listening wryly to these vows
And thought ‘is Google really pure?’
‘From what we’ve seen, we’re far less sure.’

For Google blocks all kinds of sites
‘Specially for those with copyright
And, you know, this isn’t funny,
When blocking things will make them money

This isn’t just about free speech
No matter how much Google preach
What matters here is really power
Is this truly Google’s hour?

Does Google have complete control
Or do the law courts have a role?
Time will tell – but on the way
Our privacy will have to pay…

Paul Bernal

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Trade Agreements, EU Law, and Occupied Territories – A Report on Polisario v Council

Published on July 1, 2015        Author: 

Speaking of occupied territories, an interesting judgment should soon come from the General Court of the European Union (GC) in Action for Annulment Frente Polisario v Council (Case T-512/12), a case with fascinating international law aspects. I attended the hearing last week and think it warrants a report.

Frente Polisario is a national liberation movement (NLM) that claims sovereignty for Western Sahara – the area between Morocco and Mauritania that has been on the UN list of non-self-governing territories since 1963, and in 1975 was the subject of a fairly inconclusive ICJ Opinion. The Frente sees Morocco as an occupying power, and challenges the EU Council decision approving the 2010 EU-Morocco Agreement on agricultural, processed agricultural and fisheries products. Given that the 2010 Agreement is a development of the 2000 EU-Morocco Association Agreement, the decision will have significant implications for the application of the latter agreement, and may thwart negotiations of the so-called “Deep and Comprehensive Free Trade Agreement”.

These agreements are all silent on the question of what constitutes Moroccan territory. However, Frente Polisario claims, de facto Morocco has been applying the 2000 Association Agreement to Western Sahara. If applied the same way, the 2010 Agreement will facilitate the export to the EU of agricultural products grown in Sahrawi land and fish caught in Sahrawi waters. If Morocco’s control of Western Sahara is illegitimate, this would violate the right of the Sahrawi people to self-determination and to permanent sovereignty over their natural resources.

The case raises a number of interesting questions:

Standing of NLMs

Read the rest of this entry…

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The Territorial Reach of the EU’s “Right To Be Forgotten”: Think Locally, but Act Globally?

Published on August 14, 2014        Author: 

Brendan Van Alsenoy is a legal researcher at the Interdisciplinary Centre for Law & ICT (ICRI), KU Leuven – iMinds. Marieke Koekkoek is a research fellow at the Leuven Centre for Global Governance Studies (GGS), KU Leuven.

800px-Google_SignIn May of this year, the Court of Justice of the European Union (CJEU) decided that individuals can – under certain conditions – ask Google (photo credit) to stop referring to certain information about them. The CJEU’s recognition of this so-called “right to be forgotten” has kicked up quite a storm. Now that the dust is beginning to settle, it’s time to direct our attention to questions of practical implementation. One set of questions is about territorial reach. How far should the right to be forgotten extend, geographically speaking? Should Google, upon finding that an individual’s request is justified, modify its search results globally? Or should it only modify search results shown within the EU?

According to press reports, Google’s current approach is to limit its modification of results to the “European versions” of the search engine. Search results of people using google.com remain unaltered, while people using google.es or google.be may no longer be seeing the full picture. However, Google still allows its EU users to switch to the .com version, simply by clicking a button at the bottom of the page. EU users can also freely navigate to other country-specific versions of the search engine, whose search results may not be filtered in the same way. By not taking further measures to limit access to “forgotten” search results, it seems as if the search engine is needlessly provoking the wrath of European data protection authorities. So what should the search engine be doing?

Realistically speaking, only two approaches seem viable. The first option would be to “keep it local”, by filtering the search results for queries originating from EU territory – regardless of which country version of Google is being used. The second option would be to “go global”, which would involve modification of search results worldwide. (To be clear, either approach would only kick in once Google has decided to grant a specific request and would only affect results following a name search).

It is true that nothing in the CJEU ruling suggests that Google would be justified in limiting itself to specific websites, countries or regions. But, as even the Chairwoman of the Article 29 Working Party has acknowledged, the matter may not be so clear-cut. Read the rest of this entry…

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The Court of Justice of EU’s Judgment on the “Right to be Forgotten”: An International Perspective

Published on May 20, 2014        Author: 

In its judgment published on 13 May in the case C-131/12 Google Spain AEPD and Mario Costeja Gonzalez, the Court of Justice of the European Union (CJEU), Grand Chamber, recognized a “right to be forgotten” with regard to Internet search engine results. Unfortunately, the judgment has important international implications that the Court did not sufficiently consider. In this post, I will put aside the issues of EU data protection law that the judgment raises, and focus instead on its implications for the rights of individuals to use the Internet as a global communications medium. It is important to note that application of the judgment extends beyond particular search engine providers to include any “provider of content which consists in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference” (paragraph 21), which could include Internet archives, social media, news crawler services, and many other types of online services.

The plaintiff in the case complained to the Spanish Data Protection Agency (DPA) against a Spanish newspaper and Google, stating that a Google search brought up a link to the newspaper containing irrelevant information about him, and requesting that the newspaper be required to remove or alter the pages and that Google be required to remove the data from the search results. The DPA found against Google, which then appealed to the Spanish Audiencia Nacional (National High Court). The Spanish court referred the case to the CJEU. On June 25, 2013, Advocate-General Jääskinen recommended that the Court find that it had jurisdiction over Google; that in its role as a search engine provider, Google was a data processor rather than a controller; and that the EU Data Protection Directive 95/46 does not contain a right to be forgotten that could entitle the plaintiff to have his data deleted from search engine results.

In its judgment, the Court differed in several important points from the Advocate-General’s opinion, and reached the following conclusions:

–Google’s branches in the EU are subject to the national data protection law of the EU member states where they are located, since they are “inextricably linked” to the activities of the Google headquarters in the US by virtue of Google Spain selling advertising space on the search engine provided by Google Inc, even if the actual processing is carried out in the US (paragraphs 42-60).

–Search engines are “data controllers” and as such are independently responsible for the personal data they retrieve, store, and display from websites (paragraphs 21-41).

–Under the Directive, there exists a limited right to have search engines delete material from search results (i.e., a “right to be forgotten”), regardless of whether the material indexed was posted legally or whether it is accurate (paragraphs 62-99). Read the rest of this entry…

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The ECJ and (Mis)interpretation of Security Council Resolutions: The Case of Sanctions Against Iran

Published on December 23, 2013        Author: 

On 28 November 2013, the ECJ set aside the judgment of the General Court of the EU in case T‑509/10, Manufacturing Support & Procurement Kala Naft v Council, which had annulled, in so far as they concerned the applicant (an Iranian company owned by the National Iranian Oil Company), the various EU restrictive measures targeting persons and entities listed as being engaged in nuclear proliferation (including Council Decision 2010/413/CFSP). However, in my view, the ECJ was wrong in considering that the UNSC Resolution 1929 (2010) provided a basis for the challenged EU measures as the Court wrongly interpreted the SC resolution as enabling the European Council to conclude that trading in key equipment and technology for the gas and oil industry was ‘capable of being regarded as support for the nuclear activities of [Iran]’.

In its judgment, the ECJ, recalls that the effectiveness of judicial review requires that the Courts of the EU are to ensure that the decision challenged ‘is taken on a sufficiently solid factual basis’ (at para. 73), and observes that in order to assess the lawfulness of the General Court’s review of the measures, it shall examine ‘the way in which the General Court identified and interpreted the general rules of the relevant legislation’ (para. 74). The ECJ held that “there is nothing in the judgment under appeal to indicate that the General Court took into account the changes in European Union legislation after Security Council Resolution 1929 (2010) (para. 75, emphasis mine). Read the rest of this entry…

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The European Union: Rule of Law or Rule of Judges?

Published on November 11, 2013        Author: 

Jakob CornidesJakob Cornides, JurD, serves as an official in the European Commission’s Directorate General for Trade. The views expressed in this contribution are the author’s, and are in no way attributable to the institution where he is employed.

In this year’s “State of the Union Address”, delivered on 11 September 2013 at the European Parliament in Strasbourg, Commission President Barroso announced that the Commission would come forward with a communication that would contain proposals for a “general framework” to address “challenges to the rule of law in our own member states”. Just one week earlier, on 4 September, Commission Vice President Viviane Reding had given a talk at the premises of the Center for European Policy Studies (CEPS), in which she outlined what such a “rule-of-law-mechanism” might look like. While it must be supposed that, rather than an official Commission position, this talk represented nothing but Commissioner Reding’s personal views, it nevertheless could be seen as a sort of kite-flying exercise with the purpose of testing the reactions of the public to ideas for which the Commissioner wants to garner support. The Commissioner’s intention to frame the debate is further underlined by the fact that she will host a conference in Brussels on 21/22 November in Brussels, where one panel has been set up to deal with her proposal, which has been summarized in a discussion paper.

Commissioner Reding. Photo from the CEPS website

In this post I will set out the “challenges” that Commissioner Reding thinks should be addressed and then describe the remedies that she proposes before offering my own views on whether there is indeed a problem and my analysis of the proposed solutions. In my view, the Commissioner’s analysis of supposed problems is rather unconvincing, and her proposals appear more likely to create new problems than to solve existing ones. In particular, her proposals would accord excessive power of the judicial institutions of the European Union and in effect end the sovereignty of Member States.

The so called “Rule of Law” Crisis

In her CEPS speech, Mrs. Reding specifically mentioned three cases in which a “rule-of-law-crisis” in a Member State made an intervention by the Commission necessary: (1) the political mayhem surrounding the French government’s decision to repatriate  several thousand Roma originating from Romania and Bulgaria, who had neither residence nor work permits, back to their countries of origin; (2) the lively debates, in particular in the European Parliament, concerning the new constitution of Hungary in 2011; and (3) the constitutional crisis in Romania in 2012, where the newly elected Government, attempting to divest State President Traian Basescu of powers, refused to abide by a decision of the country’s Constitutional Court finding that a referendum to impeach the President had failed to attain the necessary quorum. According to Commissioner Reding, these three cases illustrate that a new “rule-of-law-mechanism” is necessary for the EU in order to prevent national governments from violating the EU’s common values. Read the rest of this entry…

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Mr. Kadi and Article 103 (A Poem)

Published on July 29, 2013        Author: 

Professor James Crawford SC FBA is Whewell Professor of International Law at the University of Cambridge

While wandering through a wadi
in the wastes of Saudi
I came across Mr KadiKadi
cracking rather hardy.

I said ‘you must feel blue
at what they’ve done to you’;
he said to me ‘that’s true,
but I’ve got the CJEU,

lacking whose authority
the P5 sorority
are now a small minority,
who’ve lost their old priority.’

And so went Mr Kadi
wandering down his wadi:
‘it’s all because of me;
I killed Article 103!’

_________________

* Editors’ note: We are delighted to publish Professor Crawford’s poem, which he first presented last week during a lecture at The Hague Academy of International Law. Previous posts about Kadi here(Kadi pictured above, credit.)

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