European Central Bank’s room for manoeuvre provisionally confirmed

Posted by ACELG on 19/01/15
Tags: , , , , ,  

Last week saw a confirmation of the powers of the European Central Bank (ECB) to address the crisis with the delivery of the (non-binding) Opinion in a case before the Court of Justice of the European Union (CJEU, or European Court).

By René Smits

The Advocate General (AG) confirmed the wide discretion, which the ECB has when taking unconventional monetary policy measures. At the same time, the AG suggested the Court that the ECB be required, when implementing such measures, to be fully transparent in the reasons behind them (motivation requirement) and to respect the proportionality principle (the measures are to remain well within the limits of the necessary to obtain the stated goal). He warned that the ECB’s involvement in economic policy setting and monitoring should end in respect of Member States whose bonds the ECB would buy under such unconventional measures: an end to the troika (troixit). The AG addressed the relationship between the CJEU and the highest court of the largest Member State, which had referred the question to be decided by the European Court. The AG opinion should be seen against the background of a battle for supremacy of the law (Union versus State law), and a battle for the public’s mind in Germany on the need of unconventional measures, as well as their role in preserving the euro and the composition of the currency union. The Opinion will support the ECB in deciding on further unconventional monetary policy measures, and underlines the primacy of EU law.


Reaction to Leonard Besselink’s ACELG Blog

Posted by ACELG on 06/01/15
Tags: , , ,  

Thanks to Leonard Besselink for giving a fast, sensible and innovative approach to get the Union out of the quagmire created by the Court’s Opinion 2/13. He proposes an amending Protocol to the TEU, which will basically amend Article 6(2) of that Treaty by announcing that this accession will happen “notwithstanding” the Opinion of the Court, effectively setting it aside. However, that solution might be too radical for many in the EU Institutions and even the Member States.

By Pieter Jan Kuijper

How could one accommodate most, perhaps all, of the problems of the Court, without returning to the negotiating table, where the EU will once again meet some very unwilling negotiation partners? Of these certainly Russia by now will have become totally intractable. There is simply not much hope that it will agree to anything of the kind. Moreover, it would be the second time that the Union returns before its own Members and other Member States of the Council of Europe to ask them to help solve its problems (which, once again, are largely the problems of the Court). This is simply not a situation in which any negotiator should want to be put. The Union would be in an incredibly feeble position.


Acceding to the ECHR notwithstanding the Court of Justice Opinion 2/13

Posted by ACELG on 24/12/14
Tags: ,  

The Court’s Opinion may have shattered expectations. Who had thought that the revised accession agreement that was renegotiated by the EU and its Member States with the State Parties to the ECHR, after an initial rejection in the Council by the UK and France, would be dodged by the Court? After all, on all the points that the Court and its President had made known to the negotiators, namely the guaranteed ‘prior involvement’, the Court seemed to have been granted a privileged position, that has not been granted to any other court of any of the parties to the ECHR. Was the Court’s membership of the Council Committee in charge of supervising the negotiations on this and other points in vain?

By Leonard Besselink

It is too early to give an in-depth assessment of the position taken by the Court on various points. We do now know that we have to take the President seriously when he announced in the plenary debate at the closing session of the FIDE Conference 2014 powerfully:

“The Court is not a human rights court: it is the Supreme Court of the Union.”

It took this in a more literal way than could be expected, and gave a resounding: NJET.

What’s to do now?  Tobias Lock has suggested that ‘[i]t is clear that the drafters of the DAA will have to return to the negotiating table’. I respectfully disagree.


A general regulation of administrative procedure for the European Union?

Posted by ACELG on 17/12/14
Tags: ,  

Since the entry into force of the Treaty of Lisbon the passionate desire of the European Ombudsman and European Parliament is to create a regulation for administrative procedures for all European institutions. Unfortunately the legal basis for such a proposal is far from solid.

By Pieter van der Ploeg

Currently, rules on administrative procedures for EU institutions are scattered throughout a variety of sources of EU law. In primary law article 41 of the Charter of Fundamental Rights of the European Union establishes everyone’s right to fair and impartial administration. At the level of secondary law, administrative procedures are regulated per policy area in a variety of binding and nonbinding instruments. The prime example is Regulation 1/2003, which contains the Commission’s procedures on competition law. Last, the European Court of Justice has established several principles of good administration in its case law. So far the court has recognized the principle of non-discrimination, the principle of proportionality, the right to a hearing before an adverse decision is taken by a public authority, and several other principles.


Ten Years of Decentralized EU Competition Law Enforcement – Success or Failure?

Posted by ACELG on 10/12/14
Tags: , , ,  

Notes from the Fourth ACELG Annual Conference (November 14, 2014)

This year’s ACELG conference was dedicated to assessing one of the last decade’s most significant developments in EU competition law, namely the decentralization of its enforcement system. The conference offered unique benchmarks for evaluating the success of this reform by examining its various institutional and constitutional outcomes and their implications on the EU’s and its Member States’ legal orders.

By Or Brook

Ten years ago, Regulation 1/2003 decentralized the enforcement of EU competition law. The Regulation abolished the Commission’s previous monopoly on applying many of the EU competition rules and aimed to share the enforcement activities and responsibilities with the Member States’ national competition authorities (‘NCAs’) and national courts.

The shift from a supranational to a transnational and multiple-layered EU enforcement setting raised significant challenges relating to the new multi-level governance and the national actors’ administrative capacities. Nevertheless, Regulation 1/2003 contains very little guidance in this regard, and allows the Member States to choose the institutional embedding and accountability of their NCAs and national courts.

Against this background, the Fourth Annual ACELG conference offered unique perspectives for evaluating the new enforcement system’s success: while previous assessments primarily compared Regulation 1/2003’s outcomes to the Commission’s goals for decentralization (namely, enhancing the Commission’s possibility to set its enforcement priorities, ensuring effective supervision, and ensuring a uniform and coherent application of the competition rules), the conference offered three alternative institutional and constitutional benchmarks to guide the assessment, as described below.


Will the Juncker Commission initiate unified Eurozone external representation?

As the response to the Eurozone sovereign debt crisis has shown, when push comes to shove, EU Member States are willing to accept a further transfer of powers to the European level. However, they are – understandably – not so keen on reforms that diminish their international stature. The long overdue consolidation of the Eurozone’s external representation, identified as one of the building blocks of a ‘genuine’ Economic and Monetary Union (EMU), was perpetually delayed under the Barroso Commission. EU Member States, it appears, are still not ready to accept this particular curtailment of their powers. This raises the question whether the new Juncker Commission will be able to seal the deal fifteen years after the Eurozone came into existence.

By Chris Koedooder

A ‘genuine EMU’ calls for unified external representation, says the Commission…

The consolidation of the Eurozone’s external representation is a comparatively minor step on the road towards a ‘genuine EMU’; nonetheless, it carries great symbolical significance. Presently, various EU Member States represent the Union in international financial institutions. A seat at the table in top-level international negotiations brings status, so naturally Member States are reluctant to give up their privileged positions (which often reflect post-WWII power relations rather than our current international economic order). For quite a while now, the Commission has hinted that at some point in the near future it will finally try to break the political impasse which has existed on the issue since 1998, when an initial Commission proposal was not followed up by the Council.

When the sovereign debt crisis was at its peak, Commission President Barroso argued on multiple occasions that a strengthening and consolidation of the Eurozone’s external representation should be pursued. Barroso appeared confident that the Eurozone Member States could be persuaded to give up their seats in the International Monetary Fund (IMF). He even announced that the Commission would present “before the end of 2013” a proposal “to establish a unified position to achieve an observer status of the [Eurozone] in the IMF executive board, and subsequently for a single seat”. As will be explained below, the latter is currently not legally possible.


The EU says NO to ‘benefit tourists’: how fundamental is the status of Union citizenship?

On 11 November, the Court ruled in Dano that Member States can deny social assistance to EU citizens who do not work and are not looking for a job in the receiving state. That decision was applauded by both Germany and the UK. According to Cameron, the Court’s decision was “simple common sense”. But was it really?

By Annette Schrauwen

“Can the status of EU citizenship be relied upon against the economic difficulties of modern life?” This question marks the beginning of an advisory Opinion in a case before the European Court of Justice (the Court) involving German pensioners claiming a compensatory supplement in Austria, that was decided last year. [C-140/12, Brey] That decision did not receive as much media coverage as the decision in the Dano case did.

In this latter case, Elisabetta Dano, a Romanian living with her sister in Germany since 2010, is portrayed as the social benefit tourist par excellence. She has never worked in Germany and apparently was not looking for work. She applied for a social benefit and the German authorities refused her application. She challenged the refusal on grounds of EU law, notably free movement of persons and non-discrimination on the basis of nationality. Upon questions from the national judge, the CJEU ruled that Member States can exclude EU citizens in the position of Elisabetta Dano from access to the specific social benefits that Ms Dano had requested.


Making the same mistake all over again: Juncker’s reshuffling of public health portfolios

Posted by ACELG on 25/09/14
Tags: , ,  

What did we learn from the BSE crisis? Remember how the European Commission was criticised for letting market concerns take precedence over public health protection? With the ongoing reshuffling of the Commission portfolios by President-elect Juncker, some major units for EU public health protection, such as ‘Health Technology and Cosmetics’, ‘Medicinal Products – Authorisations, European Medicines Agency’, and ‘Medical Products – Quality, Safety and Efficacy’, move from DG SANCO (Health) to DG Enterprise and Industry. The changes to the portfolios come without further explanation and after the deadline for the Parliament to ask written questions has passed. At the same time, the message sent to EU citizens seems to be that in the EU, public health is a means for economic interests rather than an end in and of itself.

By Anniek de Ruijter

In the years following the BSE-crisis increasingly public health portfolios were moved to the health commissioner and became the responsibility of DG SANCO. Important and major aspects of the European internal market such as the safety for pharmaceuticals, medical products and health technology were all moved to DG SANCO. With respect to pharmaceuticals, an important reason for putting DG SANCO in charge was that DG Enterprise failed to manage the 2009 H1N1 crisis with respect to the coordination and availability of vaccines. Thus it was recognized that public health specialists needed to work in tandem in such extremely difficult and multifaceted crises. This mirrors the situation in Member States, where one may find it difficult to find ministerial departments on economic and financial affairs in charge of the approval and safety of medicinal products.


Secession within the Union: Scotland said NO, but the quest for a legal framework continues

Posted by ACELG on 19/09/14

By Catherine Brölmann and Thomas Vandamme

By a narrow margin, the 300-year-old union between Scotland and the rest of the United Kingdom survived the referendum held on 18 September 2014. British – and Scottish – membership in the EU has been one of the prominent factors in the political debate, which has addressed issues like the effect of a reduced UK on the balance of power within the EU and the consequences of Scottish independence for the imminent ‘Brexit’ referendum. Yet the legal framework for secession within the Union, which these political narratives presuppose, is all but clear. In this blog we explore some important legal and political aspects of the scenario of secession within the Union.

The question of the legal framework remains highly salient even given the victory of the No Campaign. Scottish independence may have been averted for now, but other regions in Europe with strong cultural and linguistic identities have similar aspirations. There is, of course, Catalonia where a referendum on independence (although ex ante declared illegal by the Spanish Constitutional Court) is scheduled for 9 November 2014. Meanwhile, in the Belgian region of Flanders, a persistently vital pro-independence movement experiences one electoral success after another, rendering the country increasingly difficult to govern. Political developments such as these remind us that secession of federated states, countries, or regions from EU Member States is a real possibility.


Ten Years of Decentralized EU Competition Law Enforcement: Success or Failure?

Amsterdam, 14 November 2014

This year marks the tenth anniversary of the new enforcement system of EU competition law, which was introduced by Regulation 1/2003. Ten years of functioning of the Regulation calls for reflection and evaluation.

The Amsterdam Centre for European Law and Governance (ACELG) has the pleasure of inviting you to its Fourth Annual Conference: ‘Ten Years of Decentralized EU Competition Law Enforcement. Success or Failure?’, which will take place on 14 November 2014.

The goal of this conference is to take stock of the various constitutional (legal and institutional) developments that followed the entering into force of Regulation 1/2003. It brings together academics and practitioners to discuss the constitutional implications of these developments in the EU’s and the Member States’ legal orders and to evaluate the first ten years of the Regulation’s functioning.

More detailed information and the programme as well as a registration form can be found here. Attendance is free of charge, but subject to registration.


Provides insights on European Law from an academic perspective. Discusses the latest developments in the context of the surrounding legal and political systems as well as wider structures of (global) governance more.