Decoding the Amsterdam and Karlsruhe Courts' post-LM Rulings (Part I) verfassungsblog.de/luxembourgs-unworkable-test-to-protect-the-rule-of-law-in-the-eu (original) (raw)
VerfassungsBlog, 18 April,, 2020
A key rule of law case illustrating the conversation taking place between national judges and the Court of Justice about the how-to of rule of law protection is the CJEU’s LM ruling dealing with the implementation of the European Arrest Warrant (EAW) (July 2018; for analysis, see here). In it the CJEU developed a test to balance mutual trust and individual rights, particularly the right to a fair trial. The Rechtbank Amsterdam, more specifically its international legal assistance chamber (Internationale Rechtshulpkamer), and the Karlsruhe Oberlandesgericht applied Luxembourg’s LM test with respect to Polish suspects in a series of recent (interlocutory) rulings. This national case-law is interesting both for its immediate outcome (suspension of surrenders) and its implicit message to Luxembourg: “Sorry, we tried, but your test is unworkable.”
Domestic Courts Pushing for a Workable Test to Protect the Rule of Law in the EU
2020
, the Oberlandesgericht Karlsruhe passed a decision in a surrender case that we expect to shape the future of the LM-test (Ausl 301 AR 15/19; for a first analysis, see here). Its decision can be seen not only as a result of Luxembourg's unworkable LM test but also as an acknowledgement of the effect of Poland's muzzle law on the independence of its judiciary. Shortly after, Rechtbank Amsterdam engaged with this decision, thus making it more likely that the CJEU will have to move forward and develop its test into a more meaningful one.
The Use of ECTHR Case Law by the CJEU after Lisbon: The View of the Luxembourg Insiders
SSRN Electronic Journal, 2015
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Note that this paper uses the new numbering of Treaty provisions in force since 1 December 2009, except where necessary to the understanding]. so as to provide for more comprehensive explanations of the ECJ decision-making process and law-making dynamics in the EU. Litigation, out of the radar of European legal and political scholarship? Legal scholarship dedicates a lot of attention to the Court, but it consists largely in dissecting, praising, criticizing or forecasting European jurisprudential developments, or in appraising their applications and impact, or lack thereof, in the member states. There are, of course, exceptions to these trends. Legal scholars have investigated at some length the contribution made by national courts which, by using, or refraining from using, the preliminary rulings mechanism (now Article 267 TFEU), and by resorting to a mix of compliance and defiance with European rulings, gave more or less implicit guidance to the European Court (e.g. Slaughter, Stone Sweet and Weiler 1998, Alter 2001). A smaller group of scholars looked at the part played by other actors in EU level litigation. Examining EU level litigation patterns, they found out that the ECJ's docket was monopolized by the Commission, governments, transnational corporate groups and a few interest groups (i.e. women rights and environmental groups) (Harding 1992, Harlow 1992, Cullen and Charlesworth 1999). The few empirical legal accounts of litigation impact converged in finding that the Court's case law, or at least its fundamental aspects, were 'driven' and 'framed' essentially by national courts (Weiler 1994), the Commission (Stein 1981), and the Court's Advocates General (Burrows and Greaves, 2007). Those authors who studied the ECJ's argumentative strategy (i.e. the fictional 'reconstruction' of its decision-making, rather than the decision-making process itself) developed explanations which highlighted judicial autonomy, because the Court was able to justify its rulings based on accepted legal argumentative styles (Bengoetxea 1997). However, some did stress that the Court was not completely 'insensitive' to its political environment, and that the Court was willing to limit the scope of application of Treaty provisions to protect measures or values which reflected a consensus amongst the member states ('majoritarian activist', Maduro 1999). Yet, in general, EU level litigation and its impact on EU law and policy developments, remains largely out of legal studies' radar (but see Rawlings 1993,
1995
The Netherlands do not seem to fit well within this research project. All commentators, both inside and outside the Netherlands, agree that the reception of the European Court's direct effect/supremacy doctrine has gone very smoothly in the Netherlands, without major doctrinal controversies or judicial hesitations. Comparative studies of the domestic reaction to the supremacy and direct effect doctrines do not dwell on this country, and quickly move to other, more interesting cases such as those of France, Italy, Germany or the UK. We will not challenge that view here; the constitutional setting of the Netherlands is indeed optimal if compared to those other countries. Yet, the reaction to the direct effect/supremacy doctrine has not been without some ambiguities. In the second part of the report, we will look into them, and hope to show that even in the Netherlands the reception of the European Court's doctrine has not gone without some distortions of the message from Luxembourg. The first part will deal with something else. Before looking at the reception of the direct effect/supremacy doctrines, we will look at their conception. Those doctrines did not appear out of the blue. The European Court had its own intellectual sources from which it derived the formulation of those doctrines, and those sources, apart from sparse references in the case-law of international courts, were to be found in national law. The link between the direct effect doctrine and the American doctrine of self-executing treaties is well-known, but the 'European' sources of the Court's doctrine are less completely explored. The constitutional law of the Netherlands is, arguably, one of its major sources of inspiration. The first part of the report will therefore deal with the contribution of the Dutch legal order to the emergence of the European Court's doctrine. * The relationship between the Constitution and treaty provisions was dealt with in two articles. The notion "legal provisions in force in the Kingdom" in article 65 was deemed to include the Constitution, that must therefore give way to treaty provisions. 9 This was confirmed in article 60(3): "the judge shall not review the constitutionality of Agreements". * The rules formulated in articles 65 and 66 with regard to treaties were made applicable, by virtue of the new article 67, also to decisions of international orgqnizations. This provision w•as inspired, among other things, by the recently signed Treaty on the European Coal and Steel Community.
THE USE OF ECtHR CASE LAW BY THE COURT OF JUSTICE AFTER LISBON Th e View of Luxembourg Insiders
Th is article examines how and why the Court of Justice examines and cites the case law of the ECtHR aft er the entry into force of the Charter of Fundamental Rights in 2009. Th e Court's practice will be sketched on the basis of 20 interviews with judges, référendaires and Advocates General at the Court of Justice. It will be shown that the Court of Justice has examined and cited the Strasbourg case law less frequently and extensively. Several reasons will be given for this, primarily on the basis of the observations of the interviewees as to their readiness to cite the Strasbourg case law. Th is includes a growing awareness that both courts are diff erent as well as strategic reasons related to the wish to develop an autonomous interpretation of the Charter.
This article shows how the substantive bias at the core of the present socioeconomic constitution of the European Union is directly related to the characterization of economic freedoms (crucially, the right to freedom of establishment of corporations and the free movement of capital) as the key yardstick of European constitutionality. An empirically grounded reconstruction of the way in which the European Court of Justice applies the proportionality principle shows that the Luxembourg judges (1) assign the argumentative benefit to the holders of economic freedoms, (2) construct all other constitutional goods in the semblance of economic freedoms, and (3) use asymmetric proof standards when having to justify the adequacy and necessity of economic freedoms and other constitutional goods. As a result, under the cloth of projecting the way in which national constitutional courts review the constitutionality of legislation to the supranational level, the European Court of Justice has radically altered the substance of European constitutional law. In particular, the right to private property and entrepreneurial freedom (as operationalized through the four economic freedoms and the principle of undistorted competition) have been assigned an abstract and a concrete constitutional weight that places key public policies (social policies, tax policies, regulatory policies) off the realm of what is constitutionally possible. As a result, some of the collective goods at the core of the Democratic and Social Rechtsstaat have become extremely vulnerable. Focusing on the proportionality as practice by the European Court of Justice does not only provide us with insights into the nature and substance of European law, but also contributes to the general theoretical understanding of the principle of proportionality itself, in particular to a more detailed reconstruction of the relevant steps in proportionality review.
2013
The ECJ's Notion of 'Equivalent Effect' [to custom duties] Commission of the European Economic Community v. Grand Duchy of Luxembourg and Kingdom of Belgium Commission of the European Communities v. Kingdom of Belgium Questions Notes 2. The ECJ's Notion of "Discriminatory Effect" of a Charge "Having Equivalent Effect" Commission of the European Communities v. Italian Republic Sociaal Fonds voor de Diamantarbeiders v. S.A. Ch. Brachfeld & Sons and Chougol Diamond Co. Michel Humblot v. Directeur des Services Fiscaux Commission of the European Communities v. French Republic Questions Section 2. The Prohibition of Quantitative Restrictions and All Measures Having Equivalent Effect A: Nature, Purpose and Scope of ECT Articles 28 and 29 (ex. Art. 30 and 34) Criminal proceedings against Arthur Mathot Commission of the European Communities v. Ireland Commission of the European Communities v. French Republic Questions 1. Types of Measures Having Equivalent Effect Commission Directive 70/50/EEC of 22 December 1969 Criminal Proceedings against Jean-Pierre Guimont Consorzio per la Tutela del Formaggio Gorgonzola v. Käserei Champignon Hofmeister GmbH & Co. KG and Eduard Bracharz GmbH Questions Note 2. The "Hard Cases": The ECJ Evolving Jurisprudence Établissements Delhaize frères et Compagnie Le Lion SA v. Promalvin SA and AGE Bodegas Unidas SA Procureur du Roi v. Benoît and Gustave Dassonville Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein Toarfen Borough Council v. B & Q plc Criminal Proceedings against Bernard Keck and Daniel Mithouard Criminal Proceedings against Jacques Pistre, Michèle Barthes, Yves Milhau and Didier Oberti vi CONTENTS
Blind Date Between Familiar Strangers: The German Constitutional Court Goes Luxembourg!
German Law Journal
Preliminary references by national constitutional courts are not an everyday occurrence in Union law. No surprise, therefore, that they attract considerable publicity and give rise to a significant amount of academic comment. However, the recent preliminary request of the German Federal Constitutional Court (GFCC) in Gauweiler constitutes undoubtedly the most important and historic preliminary reference made thus far by a constitutional court. This is not only because it is the very first preliminary request of this particular court, inaugurating potentially a whole new era in its institutional relationships with the Court of Justice and paving the way for other national constitutional courts to make more regular recourse to the preliminary reference procedure; but also because it relates to an issue of central importance for the process of European integration with far reaching economic and political repercussions.
FIDE XXIX Congress 2020 National Courts and the Enforcement of EU Law: UK Report
2020
The main trends here pertain to the application of EU law to the UK-EU withdrawal process. This has only been made implicit in the relevant judicial review cases. For instance, the High Court in Webster by recognising the normative effect of article 50(1) Treaty on European Union (hereinafter TEU) and by not denying that this provision may have 'direct effect', impliedly admitted that EU law plays a role in the UK's decision to withdraw. But beyond the question of whether or not article 50(1) TEU can produce direct effect (and therefore confer rights on individuals which UK courts are bound to enforce), the EU fundamental principles enshrined in article 2 TEU, such as the rule of law (as a commonly-shared principle safeguarded and enforced in the EU legal order) should also apply to the exit process by virtue of the UK's EU membership obligations. 2 A UK precedent which dealt with the above issue, however, is the judgment in Shindler which concerns the issue of the applicability of EU legal principles to the exit process and in particular to the 2016 referendum and the withdrawal arrangements. 3 In particular, the opinion of Lord Justice Elias in the Court of Appeal was unequivocal in confirming that EU law has no place in a state's decision to remain or withdraw from the EU. 4 Such an opinion borrows from the German Constitutional Court's (Bundesverfassungsgericht or BVerfG) reserved judgment regarding the ratification of the Treaty of Lisbon. As it is well-known, the BVerfG's Lisbon judgment concerned a review of the compatibility with German constitutional law of Germany's ratification of the Lisbon Treaty. In its usual fashion, 5 the BVerfG interpreted EU withdrawal in its own domestic terms by placing emphasis on the satisfaction of domestic constitutional requirements over EU ones and declaring itself to be the final arbiter of the constitutionality of a potential withdrawal over and above the external assessment of the Court of Justice of the European Union (hereafter CJEU). 6
Although the EU is not a Contracting Party to the European Convention yet, the ECHR and its Strasbourg case-law do have an impact on the EU legal order. Before the Lisbon Treaty came into effect, the Court of Justice of the EU and the drafters of the Maastricht Treaty recognized that the ECHR and the ECtHR case law had a special significance for the EU legal order and regarded them as one part of the general principle of EU law. The Lisbon Treaty entitles the EU Charter on Fundamental Rights the primary legislation from which the Court could start in its deliberation. According to Art.53(3) and the relevant Official Explanation, the Court of Justice should take the Strasbourg jurisprudence into account when it needs to define the scope and meaning of fundamental rights borrowed from the ECHR and its case-law. Although the CJEU still lacks a set of uniform rules on references to Strasbourg case-law, and even the European judges' motivations for Strasbourg case-law references are varied, this method can be regarded as a kind of solution to the jurisprudential conflicts between the two European courts. From a functional perspective, the function of the Strasbourg case-law reference can be divided into four categories: authoritative guidance, legitimate guidance, reference " by analogy " , and decorative reference. In particular, the function of legitimate guidance can even be re-divided into three sub-functions: guidance, conformation to legitimacy, and warning the member states against the undermining of the Strasbourg jurisprudence as well as a comparative analysis of similarity and difference between EU law and ECHR.
For decades, the relationship between the German Bundesverfassungsgericht and the European Court of Justice has captured the imagination of European lawyers. Many European lawyers are fascinated by a potential clash between Karlsruhe and Luxembourg, and have spent hours reflecting on a conflict, which has so far been limited to shadow boxing. The underlying reason for the absence of open conflict may be the practice of indirect judicial dialogue, with both courts cautiously observing each other and their respective case law. Arguably, the very idea of constitutional dialogue entered the European debate when the German constitutional court rejected the unconditional supremacy of EU law in the Solange cases. With a view to the human rights dispute, its Maastricht judgment famously stated: ‘the [German] Court exercises its jurisdiction … in a “relationship of co-operation” with the European Court.’ The human rights saga is not the only one dimension of the judicial conversation. Like a good football match, interaction between the German and the European court has gone through different phases. In the early minutes of the game, the German court was on the attack. Its Solange cases effectively forced the ECJ to develop unwritten human rights standards at the European level. At the time, most observers agreed that the German court was the dominant player (Section II). The success of this undertaking motivated Karlsruhe to repeat its strategy. In its Maastricht judgment the German court put pressure on Luxembourg to take the delimitation of competences seriously. Again, it wanted to force its vision of European constitutionalism upon the ECJ. This time, however, it had a limited impact only. The last 15 years have been like the middle-phase of a football match: the two courts have cautiously observed each other in midfield (Section III). In its Lisbon judgment Karlsruhe changed its tactics. Instead of projecting the German understanding of human rights or competences upon the ECJ, the Bundesverfassungsgericht adopted a defensive strategy. It accepted the interpretative autonomy of Union law and retreated to the domestic arena (the penalty box in our football metaphor). Its constitutional identity benchmark established national sovereignty as the last line of defence. Behind that line the ultimate trophy of European federal statehood waited to be conquered. The game would be over; the German court would abandon its claim of ultimate authority (Section IV). But this may not happen in our lifetime. As you know, the Germans are, at least in football, have a good defence. Arguably, the constitutional identity standard may contribute to a new constitutional balance between national and European legal orders (Section V).