Category: Article

Conundrum on European Citizen’s Right to Non-Discrimination, Union Citizenship and Right to Reside

* Sarthak Gupta

The Grand Chamber [GC] of the Court of Justice of the European Union (CJEU) in CG v The Department for Communities in Northern Ireland, pronounced a significant ruling on Union citizenship and equal treatment. The judgement deliberates on two issues, protection under European Union [EU] Law of an EU citizen who was conferred pre-settled status under United Kingdom [UK] law during the transition period, and whether the case is indicative of an expanding body of case law concerning EU citizens’ equal access to social assistance whilst residing in a host Member State.

The author in this article addresses the court’s rationale which exemplifies the CJEU’s conservative perception of the right to equal treatment of economically inactive EU citizens, which has been prevalent before Dano v Jobcenter Leipzig.  The author further addresses that CJEU’s resorting to the Charter of Fundamental Rights [herein after CFREU] to address the crevices in the diminishing right to equal treatment of economically inactive EU citizens, in an unanticipated and unfathomable approach.

The ‘Case’

The case concerns the young mother of two small children, ‘CG’, a European national, with dual Dutch-Croatian nationality, who came to Northern Ireland (UK) in 2018 to live with her partner, children’s father who holds Netherlands nationality. She has been residing in a women’s shelter and cares exclusively for her children since separating from her husband due to domestic violence accusations. She has never carried out any economic activity in her lifetime in the UK due to domestic violence and recent pregnancies. Therefore, she has no acquaintances to support her livelihood and her children.  The UK Home Office gave her pre-settled status [PSS] in June 2020, implementing the Settlement Scheme, which was introduced in consideration of the UK’s obligations within Part 2 of the Withdrawal Agreement on citizens’ rights, and is included in Appendix EU of the UK Immigration Rules. This status authorizes EU citizens to continue to stay in the UK for another five years after the transition period ends.

Thereafter, she applied for a social assistance benefit known as Universal Credit, to the Department for Communities in Northern Ireland [DCNI]. The DCNI dismissed her application on the premise that she doesn’t meet the residential requisites. The DCNI contended that only individuals with a right to reside in the UK, as defined under Regulation 9(2) of the Universal Credit Regulations 2016, are perceived to have their habitual residence in the UK and are thus qualified to assert Universal Credit. The applicants who are Nationals of Member States, such as CG, who have a right of residence under the EU Settlement Scheme are excluded from the list of prospective Universal Credit recipients under Regulation 9(3)(d)(i) of the  Universal Credit Regulations, 2016.

CJEU’s rationale

The question before the CJEU was, whether Article 18 of the Treaty on the Functioning of the European Union [TFEU] (the right to non-discrimination on the pretext of nationality and citizenship of Union) precludes the Member States from withholding equal accessibility to social assistance to Union citizens who have a right of residence under domestic legislation?

Jurisdiction

The CJEU on establishing its jurisdiction referred to Article 19(3)(b) TEU and Article 267 TFEU [Para 1 of the Article] that the Court has jurisdiction to give a preliminary ruling on the interpretation of EU law or the validity and interpretation of acts of the EU institutions. The Court held that the case’s concern falls in the realm of ratione temporis of EU law, according to Articles 126 and 127 of the Agreement on the withdrawal of the UK and the court has jurisdiction to issue a preliminary ruling on the referring court’s request, within the virtue of Article 86(2) of that agreement. However, the Court held that it lacks jurisdiction to rule on the first concern, which considers the interoperability of Regulations 9(3)(d)(i) of the 2016 Universal Credit Regulations with the UK’s obligations under the European Communities Act 1972 because that issue does not engage the understanding of EU law or the veracity of an act of the EU institutions within the connotation of the European Communities Act 1972.

from: https://ec.europa.eu/eurostat/web/products-eurostat-news/-/ddn-20210315-1

Right to reside and non-discrimination

The CJEU then proceeded on to the subject of whether EU citizens can be unilaterally prohibited from social assistance and so regarded diversely from nationals. The Court observed that in all circumstances arising within the ambit ratione materiae of EU law, every Union citizen can depend on the prohibition of discrimination based on nationality enshrined in Article 18 TFEU. These instances also include incorporating the exercise of Article 20(2) TFEU para (a) and Article 21 TFEU’s right to move and reside within the boundaries of the Member States. The Court reiterated its long-held approach that Article 18 TFEU is a comprehensive right to non-discrimination that cannot be invoked in instances where a more specific expression of the same right also applies established in Dano and Jobcenter Krefeld cases. The Court further referred to Nalini Chenchooliah v Minister for Justice and Equality and held that EU citizens who move to or reside in Member State apart from their national, as articulated in Article 3(1) and Article 24(1) of  Directive (2004/38/EC), such individuals have the same right to equal consideration as nationals of the host Member State.

The Court taking the CG’s circumstances observed that it would fall in the realm of Article 24 of the Directive and Article 18 of TFEU won’t be applicable in the case. The Court held that the financial position of each individual ought to be determined, without taking consideration of claiming social benefits for examining whether the individual meets the requirement of having adequate resources [Article 7(1)(b) of the Directive]. Subsequently, as illustrated in the given scenario, CG doesn’t hold adequate resources, and it is plausible that she would become an unjustifiable responsibility on the UK’s social assistance structure. Therefore, the principle of non-discrimination enshrined in Article 24(1) of the Directive (2004/38/EC). In this instance, the order for reference directive cannot be relied forward upon.

Furthermore, even if the CG has the right to reside [temporarily] under national legislation, such right won’t be recognized as she doesn’t have any constitutional right under EU legislation [on the ground of Directive within the ambit of Article 24(1) of Directive]. The Court further held that the fact that national provisions regarding the right to reside of Union citizens which are more positive than those outlined in the Directive are unperturbed, does not imply that such regulations must be assimilated into the framework formulated by that directive, and it concludes, in specific, that it is up to each Member State to determine, as observed in Tomasz Ziolkowski and Barbara Szeja and Others v Land Berlin.

In the determination of the Charter’s spectrum in Article 51(1), the Charter’s provisions are only directed to the Member States when they are enforcing EU legislation. The Court in Terveys- ja sosiaalialan neuvottelujärjestö (TSN) v Hyvinvointialan liitto held that, according to Article 51(2), the Charter does not broaden the extent of EU law further than the European Union’s authorities, nor does it provide the European Union with any additional powers or responsibilities, nor does it amend the powers and tasks specified in the Treaties.

In this instance, the order for reference indicates that the UK authorities accorded CG a right of residency even though she lacked adequate resources. In regards to the right of residence, those authorities used more favourable norms. Those authorities acknowledged the right of a national of a Member State to reside freely on its territory, which is guaranteed to EU citizens under Article 21(1) TFEU, without giving reliance on the criteria and constraints imposed by the Directive.

This signifies that a Member State’s authorities can only withhold Union citizens, such as CG and her children social assistance after considering that such a rejection would not represent an “actual and substantial risk of infringement of their fundamental rights.” Furthermore, the Court stresses the following three fundamental rights, Article 1 CFREU compels the host Member State to ensure that the Union citizen can live in dignity. Under Article 7 CFREU, the state must also defend citizens’ right to privacy and family life, along with taking the highest concerns of children into account under Article 24 CFREU. The court concludes that when a citizen lacks the financial resources to meet his or her own and his or her children’s necessities and is isolated, those authorities should ensure that, even if social assistance is rejected, that person can nevertheless live with his or her children in a dignified way. Those authorities may consider all means of support given by national legislation, from which the citizen in question and her children are legally entitled to benefit, during that assessment.

CJEU’s labyrinthine rationale

The Court’s rationale in the CG case is far mysterious, at one place, the court held that EU citizens who have been accorded the right to reside under domestic legislation are duly recognized within the preview of the Charter. Subsequently, the court’s rationale on the right to equal treatment is conditionally both stringent and unreasonable. A rigorous understanding of the Directive [primarily Article 7(1)(b)] states, the applicant does not have the right to reside in the EU. However, under domestic legislation, she does have the right to reside. This is consonant with the Directive, which is a mechanism for minimum synchronization and permits the Member States to place more favourable standards under Article 37 of the Directive. The Court has previously in María Martínez Sala v Freistaat Bayern ruled that even though a Union citizen has a right of residence in a host country exclusively under domestic legislation, he/she/they may proceed to exercise the fundamental EU right to non-discrimination.

‘Article 8(2) of the Treaty attaches to the status of citizen of the Union the rights and duties laid down by the Treaty, including the right, laid down in Article 6 of the Treaty, not to suffer discrimination on grounds of nationality within the scope of application ratione materiae of the Treaty.’ [Para 62; Martínez Sala]

The Court’s rationale in the CG’s case took a divergent approach and held, a union citizen who has only been provided with the right to reside under domestic legislation may not exercise the fundamental right to equal treatment under Article 18 TFEU. She may rather depend exclusively on the auxiliary right to non-discrimination [Article 24; Directive]. Nevertheless, since the EU citizen is not granted citizenship and is not a resident under the Directive, the citizen cannot exercise her right to non-discrimination under the same Directive. Thereafter, the Court concludes that a Union citizen with a recognized right to reside would not have the right to equal treatment in the jurisdiction of the host Member State. This narrow rationale of the court draws a delineation between EU citizens who have a fundamental right to reside under EU law and those who have a lawful right under domestic legislation.

Notwithstanding the Court’s errors to uphold the right to equal treatment, CG is not denied all EU constitutional protection. The Court holds that the UK must continue to adhere to the Charter. CG cannot be denied access to social assistance when doing so would violate her EU Charter rights. Significantly, the Court over-looks Article 21(2) CFREU, which also guarantees for the right to non-discrimination on the account of nationality, but instead emphasizes Articles 1, 7, and 24 CFREU, which must be protected by national authorities.

In CG’s case, the protections enshrined under the Charter are accorded because she has a legal right to reside under domestic legislation. As held in Dano, an applicant who lacks sufficient resources and has not been awarded a more preferential residency right under national legislation will be denied access to the Charter.

Article 51(1) of the Charter states that the provisions of the Charter are addressed ‘to the Member States only when they are implementing Union law’. [Para 67, Dano]

Therefore, the Charter does not provide Union citizens with a broader spectrum of protection, but rather is exclusively accessible to the limited group of Union citizens who have been granted the right to reside under domestic law. The Court’s apparent concern was to preserve the individuals in this case, CG and her two children, and to assure that they can proceed to live concludes in Northern Ireland in a dignified manner. Unfortunately, by adopting a very restricted approach, the Court seriously restricted the impact of this judgment on the protection of the greater population of Union citizens and continues to undermine the fundamental right to equal treatment conferred by Article 18 TFEU.

 

* Sarthak Gupta is an undergraduate B.A; L.L.B [Hons] law student at the Institute of Law, Nirma University, India. His scholastic interest follows Constitutional Law, Human Rights & Gender Studies, and International Law.

 

THE CRIPPLING STATE OF COLLECTIVE BARGAINING IN IRELAND

POTENTIAL BREACH OF EUROPEAN AND INTERNATIONAL LAW

*Akshay Sharma and **Nivrati Gupta

The present state of collective bargaining in Ireland has hit record low. While collective bargaining is regarded as the mechanism of sharing prosperity and maintaining the balance of power between individuals interacting in a market, Ireland stands out as the only western-European EU member that does not have binding collective-bargaining legislation thus, leading to a low coverage of collective bargaining. On May 31st, Forsa Trade Union of Ireland published a report titled “Collective Benefit – Harnessing the power of representation for economic and social progress”, which stated that collective bargaining coverage in Ireland is at 33.5 percent, the second-lowest among the 14 countries in EU membership since before 2004. This blog post explores the international laws of collective bargaining that are applicable to Ireland and further, the reasons that can be attributed for their potential breach.

ILO convention and its applicability to Ireland

Ireland ratified the Right to Organize and Collective Bargaining Convention, 1949 (No. 98) in 1955. It is subject to constant supervision by the ILO on its compliance with this convention. As of now, it appears that Ireland is in breach of Article 4 of this convention that aims at encouraging voluntary negotiation between employers or employers’ organizations and workers’ organization through national policies, rules and regulations. There is one more convention called Collective Bargaining Convention, 1981 (No. 154) which defines collective bargaining and makes it mandatory for the Member States to take measures to improve the representation of the workers union. However, this convention is not ratified by Ireland.

However, it should be observed that Ireland has ratified Convention 87 on Freedom of Association, the ILO Committee on Freedom of Association (which is empowered to make binding determinations on the requirements of ILO conventions under its purview) has held that the right to bargain freely with the employer is an essential element of freedom of association.

Without this indispensable element of bargaining freely, the whole aim of forming an association might get defeated. Even though Ireland is obligated to comply with convention 87, the present situation is in stark contrast with the bare minimum expectations of the instrument. Presently, Ireland is performing below the EU average in respect of industrial democracy and associational governance which brings Ireland near the bottom on worker representation and participation in economic decision-making.

There are two more recommendations of ILO (recommendation NO. 91and No. 163) that aims at forming policies and implementing them for instituting principles, operations and practices of collective bargaining. However, they are only recommendations and there is no mandate to implement them. The right to bargain collectively cannot be brought to its realization if the laws of a country leave it entirely up to employers whether or not to recognize and negotiate with workers’ trade unions.

The laws of the European Union

Ireland is subjected to the European Convention on Human Rights that recognizes freedom of association under Article 11. The right of collective action was recognized by the European Court of Human Rights as one of the elements of trade union rights laid down by Article 11 of the ECHR. Further, collective bargaining as an essential element of Article 11 is observed in the landmark judgments of the European Court of Human Rights like Demir and Baykara v Turkey. The court observed that though, indulging in collective bargaining might not be a statutory mandate for an employer in Ireland, but if a generally applicable practice in the field of collective bargaining is shared throughout Europe, such practice regarding collective bargaining may be binding on contracting and even non-contracting states that do not follow those practices.

Ireland ratified the European Social Charter in 1964 and the Revised European Social Charter in the year 2000, accepting 92 of the 98 paragraphs of the Revised Charter. Article 6 of the European Social Charter mentions the right to bargain collectively, Ireland has duly accepted and ratified all the four provisions of Article 6 of the Revised European Social Charter. In the landmark case of ICTU v. Ireland, the European Committee of Social Rights clarified the relationship between the values of unrestricted trade and competition and those of freedom of association and collective bargaining. the European Committee of Social Rights held that Article 6(2) of the European Social Charter on the right to collective bargaining applies to self-employed persons, restrictions based on competition law or commercial law are not legitimate and/or are not necessary for a democratic society and also violated the European Social Charter.

The ECSR further pointed out that the restrictions on trade practices cannot go parallel to a democratic society. Unrestricted trade and fair competition are highly regarded principles that benefit consumers in several different ways. This should not, however, prevent specific groups of self-employed people in specific jobs from exercising their collective bargaining rights.

To establish a free and democratic society, it is important to have the opinion of every individual getting voiced in the society. Without principles of representations, we cannot make sure that the policies, rules, and regulations that are expected to hold the fabric of society together have taken into consideration every opinion of every individual.

Article 28 of the EU Charter of Fundamental Rights which is based on Article 6 of the European Social Charter grants the right of collective bargaining and action to workers, employers or their respective organizations. However, its compliance is not evident in Ireland. The main reason that can be attributed to this unrealized breach is that there is no obligation on the part of the employer to engage in a bargaining process with the employees. This weakens the industrial relations machinery and thus, there is no incentive for workers to involve in a negotiating process.

from: https://www.eurofound.europa.eu/topic/collective-bargaining

Reasons for low coverage of collective bargaining in Ireland

The report attributes this relatively low rate to the effects of the financial crisis, a series of court decisions striking down certain industrial relations laws as unconstitutional, and the voluntarist tradition of industrial relations in Ireland. The report contends that there are not any legal obligations on the government to engage itself in any kind of collective bargaining. The whole process is based on the will of the parties.

In the recent case Náisiúnta Leictreach Contraitheoi rÉireann v Labour Court, the High court made two imperative observations. First that the specific SEO for the electrical contracting industry was ultra vires the Industrial Relations (Amendment) Act 2015 because of procedural flaws in its adoption and secondly that this2015 Act was unconstitutional, again as an impermissible delegation of legislative power. A ‘sectoral employment order’ (SEO) aims to set out minimum pay rates as well as pension and sick pay schemes for a specific economic sector. The court concerning how an SEO is issued observed that the delegation of legislative power cannot be provided to any branch other than legislative. The labour court is entitled to decide if there are fair and sufficient grounds upon which the minister can issue an SEO and based on that the court makes recommendations to the minister to issue the order. This decision exposed some contradictions of the Industrial Relations (Amendment) Act 2015and the process of issuing SEO. The first one is that the power to decide if sufficient and fairgrounds for issuing SEO rests with labour court and not minister, which is a trespass of power of the legislation by the different branch of government (judiciary). The second contradiction is that collective bargaining in Ireland is of a voluntarist nature and thus, an order cannot mandate an organization or company to do something. This decision though in an appeal is subject to criticism but whatever the means was for issuing an order, it somehow guaranteed the fulfilment of fair demands of the workers.

Furthermore, even the constitution of Ireland does not recognize the right to collective bargaining and the courts have repeatedly declined to recognize a constitutional obligation on employers to recognize or bargain with trade unions. The Supreme Court went so far as to suggest in Ryanair v Labour Court that employers may even enjoy a constitutional ‘right to operate a non-unionized company. Without any overarching framework or protection, there might be a possibility that the policies and legislation specific to the cause of worker’s representation may not function properly and this is what is happening in Ireland right now.

Without any mandating legislation, the principle of collective bargaining is nothing but a toothless tiger. The whole purpose of establishing a trade union is to negotiate with the employer for the bare minimum standards of work and living. But with the sheer disregard of international law and no efforts to improve the situation, the government is giving green light to the corporate entities to give a cold shoulder to the demands of workers.

Conclusion

There are all-inclusive international labour laws and laws of the European Union that aim towards the cause of collective bargaining, but looking at the present state of Ireland with regards to collective bargaining, it appears that there might be a potential breach of the above-mentioned instruments and consequently international laws. The Minister for Enterprise, Trade and Employment Leo Varadkarhas has set up a high-level working group (expected to provide a report by July 2021) that is devoted to finding out issues, implications, legal and constitutional impediments, and review collective bargaining and industrial relations in Ireland. Further, the group will provide recommendations for expanding the coverage of the same. Ireland needs to take measures like strict implementation of EU laws and enacting mandating legislation on collective bargaining. Steps should be taken not only for preventing Ireland from any potential breach and consequential penal actions, but also because at the end of the day, it is the workers whose fair demands of wage parity, workplace democracy, and stable life are getting curtailed.

 

*Akshay Sharma: Akshay Sharma is a penultimate year LLB Honours student of a 5-year integrated law degree program at Institute of Law Nirma University with a keen interest in Public International Law. In the future, Akshay plans to pursue his Masters in the same.

**Nivrati Gupta: Nivrati Gupta is a penultimate year B.Com LLB Honours student of a 5 year integrated law graduate course at Institute of Law, Nirma University, India.

The European Super League: Opening the Floodgates of Competition Law

By *Eduardo Gracias Baptista and  **Shanay Das Guru

 

Recent days have seen the meteoric rise and fall of the European Super League (ESL). This new league would have consisted of 15 founding clubs and 5 other clubs; the former consisting of ‘big clubs’ which could not be relegated and the latter in clubs who performed well over the past years on a rotational basis. Following the announcement, the proposal was met with severe backlash and most founding clubs withdrew from the competition, marking the ESL’s swift collapse.

Notwithstanding, it is still worth analysing whether it would have been in line with EU competition law. The possible sanctions that would have followed also raise some interesting points. The discussion that follows is based on the ESL, as structured and described in its press release. This analysis shall seek to contribute to the debate on the desirability and lawfulness of future similar leagues and shed some light on the often uncertain and murky waters of EU competition law.

source: sportbible.com
  • The Relevant Market

According to a 2003 Commission decision, football clubs are considered undertakings, as defined in Klaus Höfner and Fritz Elser v Macrotron GmbH, and are thus capable of affecting competition in the internal market through their interactions, within the meaning of Article 101(1) TFEU. The analysis on the possible interference of competition, however, must be preceded by the definition of the relevant market, within which the ESL and other leagues could be in competition.

The relevant market is composed of the products which the consumers (football fans) regard as interchangeable. In other words, demand substitutability, concerning the various national and international competitions and the accompanying revenue, plays a key role; if a price increase would cause fans to switch from one competition to another, then this means that they compete in the same market.

  1. The national and European markets

Firstly, there are markets which arise from the various national leagues of the Member States. Tied with national identity, consumers have a proclivity to prefer games which involve a club from their country. Taken as an example, if the prices of the TV broadcasts of the clubs of a country increased, consumers would not switch to foreign clubs. The existence of the ESL would not affect these national markets because, as stated in their press release, the ‘traditional domestic match calendar which remains at the heart of the club game’ would be preserved; this is because the ESL would consist of midweek fixtures in conjunction with the games of the domestic leagues. This harmonious coexistence is further confirmed by the envisioned ‘solidarity’ payments which would be handed out to national associations.

Secondly, consumers often also watch European football, primarily in the form of the Europa League (EL) and the Champions League (CL). These constitute European markets, not only due to the fact that the schedules do not overlap as much as possible with the national leagues, but also because of the very nature of European football. These leagues were created to meet the need of determining who is the definite and genuine champion of Europe. While loyalty to one’s club can be strong and absolute in the European leagues, it is often observed that the elimination of one’s own club prompts a fan to realign their support to a different club, often of the same nationality. National leagues, on the other hand, are not only a means to qualify for the European spots, but also ends in themselves, to quench the thirst for domestic supremacy over one’s rivals for the much-coveted bragging rights. In this sense, there is a two-tier ‘us versus them’ mentality, firstly among clubs in the domestic leagues and then as a collective of national clubs in the European sphere.

2. The Idiosyncrasies of ‘Big Clubs’ and the new European Market

The 15 founding clubs are meant to be the most marketable, profitable, and prestigious football clubs around Europe and around the world. Their wealth of resources and superlative performance are inextricably linked; over the past 30 years throughout Spain, England, and Italy, only 9 times has the league been won by a club other than the founding clubs of the ESL. Due to the utter magnitude of these clubs, they attract consumers from every corner of the world.

Consumers watch a competition when there is a team with which they feel some sort of affinity and not because of the competition itself. This is not the case, however, for consumers who watch a competition because it is the best product available. Related to this, just as the CL is arguably not in competition with the EL, the same holds true for the ESL in relation to the other leagues. Consumers who feel a high affinity with the teams in the ‘old’ markets would continue to watch it over the ESL, just as consumers who preferred the clubs in the EL watched this competition and not the CL. In the case of consumers who would watch the ESL because of its quality, it cannot reasonably be argued that this is problematic because, following that line of thinking, the Champions League would be equally problematic as regards the EL. In other words, there is an inevitable restriction that must be accepted with the introduction of better competitions. Lastly, the fact that there are 5 spots allocated to clubs based on merit would mean that the ESL would not have a potentially troublesome closed character.

With this in mind, the authors argue that the ESL would be independent from the other markets to an extent sufficient and acceptable as to create a new European market. Therefore, it would not violate Article 101(1) TFEU.

  • The turn of the legal tide

Within the last 6 months, there have been two decisions which also discuss the paradigm of the many conflicting interests of sporting authorities. In the International Skating Union (ISU) case, the General Court observed that the ISU fulfils regulatory functions and engages in commercial activity, thereby leading to a conflict of interests that is problematic from a standpoint of competition law. ISU rules actively penalising athletes for taking part in sporting events not authorised by it were held to be in violation of competition law. If one may analogise this to UEFA, upon the announcement of the 12 ESL teams, UEFA threatened to ban participating players from its own competitions, a clear show of its regulatory power. On the other hand, UEFA has a financial interest in maintaining its leagues, having earned an estimated €3.86bn in the 2018/19 season. Although the European Super League in its latest form has been shelved for the time being, it would be interesting to imagine a world where it had gone on. Keeping the public opinion and strong opposing voices aside for a second, if one were to analyse it purely from the standpoint of EU competition law, it is quite likely that the proposed UEFA action of restricting the ESL and banning players from its own leagues would have been found to be in breach of competition rules.

In the German Wrestling League case, the Nuremberg Court of Appeals held that while sporting bodies are not absolutely barred from protecting their own economic interests, excluding athletes merely for taking part in events hosted by rival organisers is a forbidden measure under EU and German antitrust law. The Court referred to the ISU case in quoting that sports federations must not use unfair means in protecting their economic interests.

In the aforementioned cases, the respective sporting authority in question brought up the ‘legitimate objective’ argument in order to justify the ban on players, referring to the need to protect the integrity of the sport under Article 165 TFEU; however, in both cases, it was held to be disproportionate. As we speculate on the possibilities if the ESL had gone ahead as planned, it must be noted that the Commission has been cautious in its response, deferring the matter to relevant arbitration arrangements and national courts. Although long-standing scholarly opinion has been sceptical of the probability of success of such a format as the ESL, the recent shift in case law towards promoting greater autonomy for athletes and breakaway leagues suggests that ESL might have had its day in court if matters so escalated. The ESL would have a strong case against UEFA on the basis of the fact that the latter not only organises the biggest football championships but also enters into contracts to exploit those same competitions commercially, thereby placing UEFA in a compromised position with respect to its regulatory position under Article 101 TFEU. Its regulatory functions must conform to settled case law on the application of Article 102 TFEU, such as in the MOTOE case. Reasoning by analogy, UEFA would be prohibited from distorting competition by favouring competitions that it organises, such as the CL and the EL, to the detriment of other undertakings, such as ESL.

source: fifa.com
  • The ESL paradox

While competition law can be quite surgical in what is and what is not the relevant market for a certain purpose, it is noteworthy to mention that these markets not only cater to humans but are also catered by humans – footballers and countless support staff who bring the game onto our screens and into our lives. And so, while it may be confounding to understand why the ESL has been abandoned if indeed it constitutes a distinct relevant market in and of itself, the picture becomes a little clearer when one considers the immense dependence of the existing football structure on an institution such as UEFA. This may be called the ESL paradox – while it constitutes a relevant market independently due to the unique taste of its consumers, such a relevant market is operated by players who are equally dependent on other relevant markets, such as national leagues, for their careers and interests. Such an interpretation explains why the ESL had to be cancelled despite not being in as much of a legal grey area as it has been made out to be in.  This problem needs to be analysed from the other side of the competition law lens since the paradox posed by the ESL is not so much about the relevant market as it is about the dependence of the humans who run it on other relevant markets. For the time being, the backlash and associated risks of carrying on with the ESL are much greater than the estimated benefits. And so, despite not being contrary to EU competition law, the ESL must display deference to its current master, UEFA, at least as presently constituted.

 

 The ESL has for long been a mere theoretical possibility passionately discussed among football enthusiasts, however, the latest attempt has been nothing short of concrete. Although the plan has been abandoned for now, the authors contend that an examination of its compliance with competition law is necessary due to its prospective return in the future; and in this regard, conclude that it does not violate competition law by virtue of having a well-defined independent market of its own. If the ESL is to sink, it will not be by navigating the waters of competition law.

The shift in the status of its existence has been complemented by simultaneous developments in case law which present a much brighter slew of options for the European Super League. Recent decisions highlight that UEFA is more likely to be found in breach of competition law instead of a competing association such as the ESL. Despite constituting a sufficiently distinct market of its own, the ESL finds itself in a paradox marked by great dependence on existing structures. There is nothing more human than this dichotomy between the old and the new; if the ESL is to find itself in a position where its existence is not threatened by a decades-old hierarchy, it must bridge the treacherous gap between the paradigm which presently governs the world of football and the future it envisions for itself.

***

*Eduardo Gracias Baptista: Eduardo Gracias Baptista is a second year European law student at Maastricht University, also taking part in the Faculty of Law’s Honours programme. Eduardo currently holds the position of student researcher to Dr. Biermeyer in the field of Luxembourg corporate law. In the future, Eduardo plans to pursue a career related to EU law.

**Shanay Das Guru: Shanay Das Guru is a second year European law student at Maastricht University. His interests include intellectual property law, human rights, and competition law. Shanay’s legal writing invariably addresses topical problems such as ownership of data collected by COVID-19 apps. Of late, he has been working on a paper advocating for greater international regulation of vaccine distribution as part of his portfolio for the Faculty of Law’s Honours programme.

 

May I have some artificial intelligence with my human rights? About the recent European Commission’s Proposal on a Regulation for Artificial Intelligence

by Vera Lúcia Raposo*

 

On 21 April 2021, the European Commission released a proposal for a future European Union (EU) regulation on Artificial Intelligence (hereafter, the ‘Proposal). While its structure sought inspiration in the General Data Protection Regulation (GDPR), the content was built upon other relevant EU interventions, namely the EC’s White Paper on Artificial Intelligence (AI), released in February 2020. The aim is to facilitate and develop the use of Artificial Intelligence within the EU to create a truly Digital Single Market while still protecting fundamental rights, EU values, and ethical principles that are potentially threatened by AI features such as its opacity (some have called it a black box), complexity, the demand for copious amounts of data (big data, with all the attached concerns), and the possibility of automation. So far, so good. We expected nothing less from the European Commission (EC). However, the proposed regulation might fall short regarding its aim.

The definition of AI used by the Proposal is presented as being broad enough to encompass future developments of this technology. However, the fast pace of technology advancement implies that it will eventually be outdated.

The proposal is based on a risk-assessment model, under which three categories of AI emerge:

  • Unacceptable risk AI, banned in Title II of the Proposal. This category includes AI that distorts behaviours (dark patterns), explores the vulnerabilities of specific groups (micro-targeting), scores people based on their behaviours (social scoring), and proceeds to real-time biometric identification for law enforcement purposes in public spaces (facial identification);
  • High-risk AI, as referred to in Title III of the Proposal are allowed, albeit under particularly strict standards;
  • Low-risk AI, for which only transparency requisites are demanded in some cases (namely chatbots and deep fakes), as established in Title IV of the Proposal.

The identification of a serious risk is based on the potential menace to health, safety, and/or fundamental rights. Notably, not only does the label of ‘high-risk’ depend on the specific task performed, but also on its purpose. Moreover, in case AI systems are erroneously classified, the consequences are not clearly defined in the Proposal. A correction mechanism should be in place to amend any wrong classification, but the Proposal remains silent on this issue.

High-risk AI systems are products or safe components of products, whose regime has been harmonised under EU law by the legislation listed in Annex II (medical devices, toys, elevators, and many others); or stand-alone AI systems that pose special threats to fundamental rights and that are referred in Annex III. These lists shall be updated in accordance with the latest technological developments.

For high-risk AI, a two-step system of control and monitoring is built. First, the control is performed through mandatory requirements to be complied with by AI systems before entering into the market. A conformity assessment is undertaken by a third party following harmonised standards, which may lead to the issuance of the ‘CE marking of conformity’. Second, an ex-post monitoring mechanism will be put in place by market surveillance authorities which use the powers conferred to them by Regulation (EU) 2019/1020 on market surveillance. Moreover, AI providers are also obliged to report severe incidents and malfunctions.

Low-risk AI systems almost go unnoticed in the Proposal, except for the provisions on transparency. The two-step procedure is not required in this case. However, providers can voluntarily accept to do so by creating their own codes of conduct (Article 69).

source: https://euraxess.ec.europa.eu/

Such legal framework requires the set-up of specific organs at the national level (notifying authorities and notifying bodies), as well as the European level, particularly the European Artificial Intelligence Board. The latter is a supranational supervisory authority, similar to the European Data Protection Board (EDPB), created under the umbrella of the GDPR, and also to the recently proposed European Board for Digital Services established in the proposal of the Digital Services Act.

Another innovation is the EU database, in which stand-alone high-risk AI must be registered before entering into the market, to facilitate transparency and tracking. The information is supposed to be upload to the database by the provider of high-risk AI systems. Neutral entities, such as the notifying bodies, could be entrusted with this task for all AI systems. Such solution would lead to better results in terms of AI’s safety and transparency.

Accountability is another matter of concern. Indeed, compliance requirements are carried out by AI providers, i.e., the ones that develop the AI and put the AI system (or its outputs) on the EU market, even if they are not established within the EU territory. In addition to the above-mentioned tasks on control, monitoring and information update, their obligations include the implementation of risk management and quality management systems, the development of detailed technical documentation, the maintenance of automatically generated logs, and transparency obligations which require that the ones interacting with AI systems must be informed that they are.  Moreover, compliance is also expected from AI users, i.e., people or entities established in the EU using AI in a professional context, or not established in the EU but whose outputs are used in the EU, along with distributors and importers. In the event of non-compliance, the Proposal foresees maximum administrative fines of up to €20m or 4% of total worldwide annual turnover, similarly to the GDPR clauses. However, no accountability mechanisms are in place. Individuals harmed by AI systems can barely obtain redress. The 2019 report on Liability for Artificial Intelligence and other Emerging Digital Technologies and the European Parliament Resolution of 20 October 2020 on a Civil Liability Regime for Artificial Intelligence suggest that such a mechanism might be put in place, as it is also supported by Coordinated Plan on Artificial Intelligence, released together with the Proposal.

source: https://digital-strategy.ec.europa.eu/

Some highly controversial topics, such as facial recognition technologies (FRT), are expected to raise discussion amongst experts. Interestingly, the 2020 White Paper did not ban FRT, although a draft version had suggested a time limited ban on the use of FRT in public spaces. The White Paper merely recommended the use of appropriate cautions, without giving much detail on such recommendations. Instead, Article 5 of the Proposal clearly prohibits the use of some forms of FRT. It is expected that Article 5/1/d, in particular, will be contested by the ones defying this technology. The norm bans ‘real-time remote biometric identification systems in publicly accessible spaces for law enforcement purposes, allegedly one of its more threatening uses from the perspective of fundamental human rights. Considering its potential added value for crime control, the proposal provides for some exceptions: the search of crime victims, including missing children, ‘specific, substantial and imminent threat to the life or physical safety of natural persons, or of a terrorist attack’, and the detection, localisation, identification, or prosecution of a perpetrator or suspect of crimes referred to in Article 2/2. The latter includes grievous crimes, such as terrorism, tariffing of humans beings, murder, rape, but also different crimes such corruption, fraud, facilitation of unauthorised entry and residency. Moreover, the ban leaves several loopholes: it does not cover the use of FRT for law enforcement purposes that does not take place in real-time or that is not carried out in public spaces; FRT by other public entities not related to law enforcement; and FRT used by private individuals and companies. Critics might argue that still many doors are left open.

Overall, the Proposal is more human-rights-friendly than the White Paper, but eventually also more conservative, a potential downside for EU’s competitive digital capacity at a global scale.  At its core, the regulatory ideas – the categorisation of AI systems per levels of risk – are the same in the Proposal and the White Paper. However, the White Paper had a more pro-technology approach and unlike the Proposal it did not elaborate in detail the potential human rights violations. Some have even pointed out that the White Paper was more concerned with the economic outputs of a massive investiment in AI than with its consequences for human rights. Although the critic might be excessive, the White Paper did contain a stronger emphasis on technological development, as it results from the various sections dedicated to this aim (comparatively, there is proportionately more discussion on development and innovation than in the Proposal).

In contrast, the Proposal gives more space to the protection of fundamental rights (though many will argue that not enough), as expressed in multiple binding norms imposing risk assessments and safety requisites, whose violation can lead to severe economic penalties. Assuming this proposal becomes indeed the new AI Regulation, my guess is that European AI developers and manufacturers will be asked to comply with so many different requirements also coming from other norms, the GDPR, the Medical Devices Regulation, the In Vitro Diagnostic Devices Regulation, the Data Governance Act proposal, that AI in Europe will become a scientific topic, not a real industry though.

In sum, the Proposal essentially pivots around two core concepts. The first is compliance, based on a system of harmonised rules, monitoring, and good governance. Consequentially, the second is the principle of trust (‘trust’ and ‘trustwhorty’ are emphasised along the Proposal). On the one hand, developers of AI shall be able to rely on rules to carry out their businesses within the EU market by complying with a unified body of rules for all Member States. On the other hand, AI users should be able to rely on its safety.

Innovation should have been the third characteristic. The impetus to bring about innovation in AI technologies is restricted to Chapter V which, albeit introducing interesting provisions, falls short of what would be required for a truly digital single market. The most promising initiative is the creation of regulatory sandboxes to encourage innovation, though under strict (too strict?) requirements. AI investment in the EU might be hampered by such ‘innovation hole’ which could advantage other leading players. Given the outstanding Chinese technological development, including on AI, the EU might not be able to reach China in the near future (or ever). Whether the Proposal reached a fair balance between innovation and human rights, or conversely whether it will lead the EU to stagnation in the domain of AI remains to be seen.

 

*Vera Lúcia Raposo  is Associate Professor at the Faculty of Law of the University of Macau, China, and Assistant Professor at the Faculty of Law of the University of Coimbra, Portugal. Her main lines of research are health law and digital law.

Inadmissibility of the Action Against the EU Climate and Energy Framework

Some Reflections on the People’s Climate Case

by Enzo Elia*

The applicants of the case Carvalho v. Parliament and Council, also known as the people’s climate case, claim that their homes, livelihoods, traditional family occupation and culture are affected by climate change.

Climate change already has severe impacts on ecosystems, the economy, human health, and the well-being of the people around the world, including Europe. We can observe an increasing number of people claiming for more ambitious climate action from their governments and taking action to fight against climate change.

The applicants of the people’s Climate Case, supported by a broad range of NGOs, lawyers, citizens and scientists, are calling for a significant push on the EU agenda regarding its climate action and its 2030 climate target fixed by the 2018 Climate and Energy Framework.

The applicants underline that the climate protection is no longer a political or diplomatic issue rather, climate change has become a concrete problem which severely impacts their homes, livelihoods, and hinders their children’s future. Furthermore, the applicants also argue that a more ambitious EU 2030 climate target below 2 °C, or ideally 1,5 °C would also support the global community to keep within the range of the Paris Agreement’s long-term temperature goal. This would allow the objective to keep temperature rise within globally “safe limits”.

Facts of the Case

The case was filed in 2018 by 36 different applicants from five EU Member States Germany, France, Italy, Portugal, and Romania and two countries Kenya and Fiji, as well as a Swedish association representing indigenous Sámi youth before the General court.

Directly affected by rising sea levels, floods or drought – consequences of climate change – the applicants challenged the 2018 Climate and Energy Framework measures regulating greenhouse gas emissions for the years 2021 to 2030 namely the EU Emissions Trading System Directive, the Effort Sharing Regulation and the LULUCF Regulation. These EU instruments set an overall target of reducing annual greenhouse gas emissions by 40% compared to 1990 emission levels. Alleging a violation of their fundamental rights and invoking the Paris Agreement, the applicants requested the followings from the court : (i) to annul the Union’s legislative package insofar as it sets a target of 40% reduction in greenhouse gas emissions by 2030 compared to the level of the year 1990, and (ii) to order the Council and the European Parliament to adopt measures imposing a reduction of GHG at least between 50 and 60%, in lieu of monetary compensation for their alleged individual losses under Article 240(2) TFEU.

The General Court of the European Union

By order of 8 May 2019, the General Court ruled that the action was inadmissible on the basis that the applicants bringing the action failed to satisfy any of the locus standi criteria. Referring to a strict application of the Court of Justice of the European Union (CJEU) judgement Plaumann of 1963, the General Court decided that the applicants were not individually concerned by the EU Climate and Energy Framework.

The General Court stated that despite the effects of climate change may be different for one person to another, this does not mean that there exist reasons to bring an action against a measure of general application. In its view, a different approach has the effect of rendering the requirements of the Treaty on the Functioning of the European Union (TFEU) meaningless and creating locus standi for all. The General Court then ruled on the claim that the Council and the Parliament should be ordered to adopt more severe measures, which was made in the form of a claim for damages. the General Court considered that this claim sought, in reality, to obtain a result similar to the result of annulling the acts at issue and that, consequently, it also had to be declared inadmissible.

The applicants then appealed against the order of the General Court with the objective of the CJEU authorizing to rely on a possible infringement of fundamental rights to satisfy the conditions of the Plaumann judgment.

The Court of Justice of the European Union

The CJEU reiterated what the General Court held in Sabo, another climate action case. In Sabo, the General Court held that claiming that an act of the Union infringes fundamental rights is not sufficient to establish that the action brought by an individual is admissible.  This would risk violating the conditions of admissibility laid down in Article 263(4) TFEU. The CJEU recalled that the Courts of the European Union may not, without going beyond their jurisdiction, read those conditions in a way which has the effect of setting aside what is expressly laid down in the TFEU, even in the light of the fundamental right to effective judicial protection enshrined in the Charter of Fundamental Rights of the European Union.

Comment

Wouldn’t it have been better to question the relevance, today, of the criteria set out in Plaumann case law, regarding climate actions? Article 263(4) TFEU includes the notion of individual concern. One should not be obliged to read into this notion a requirement that an individual applicant seeking to challenge a general measure must be differentiated from all others affected by it in the same way as an addressee. On that reading, the greater the number of persons affected by a measure the less likely it is that judicial review under the fourth paragraph of Article 263(4) TFEU will be made available. The fact that a measure adversely affects many individuals, causing widespread rather than limited harm, provides a positive reason for accepting a direct challenge by one or more of those individuals. It should therefore be accepted that a person is to be regarded as individually concerned by an EU measure where, by reason of his particular circumstances, the measure has, or is liable to have, a substantial adverse effect on his interests.

In a nutshell, the Plaumann criteria are too restrictive and do not allow adequate access to justice for environmental and climate actions. Climate change, by its nature, affects everyone, present and future generations alike. Following the case-law of the CJEU, the mere fact that the effects of climate change are general renders the corresponding legal acts unsuitable for judicial review.

For the applicants to argue the infringement of their fundamental rights, they relied, inter alia, on the Codorníu case. In Codorníu a Spanish producer of sparkling wines sought to challenge a provision of a regulation which reserved the use of the designation crémant for wines produced in certain areas of France and Luxembourg. That provision could affect the position of all producers of sparkling wines in the EU using, or desiring to use, the designation crémant. The Court found nonetheless that Codorníu registered the graphic trademark Gran Crémant de Codorníu in Spain in 1924 and traditionally used that mark both before and after registration. By reserving the right to use the term crémant to French and Luxembourg producers, the contested provision prevents Codorníu from using its graphic trademark, and it concluded that Codorníu had therefore established the existence of a situation which from the point of view of the contested provision, differentiated it from all other traders.

Therefore, in Codorníu it was established that the applicant was harmed by a legislative act of general application by his individual interest derived from an individual trademark right he had acquired. However, the CJEU rejected the argument claiming the analogy between the people’s climate case with the Codorníu case. As noted in a comment on the Sabo case, the reasoning of the  CJEU was in essence that the Codorníu case concerned the loss of the acquired specific right to use a word within a trademark, while the people’s climate case concerned the protection of their fundamental rights, which are original and universal. Thus, in the current state of CJEU case law, the loss of a specific acquired right that is not originally possessed by its owner would find greater judicial protection than the infringement of fundamental rights granted to one or more individuals.

Given the rigidity of the Plaumann criteria, applicants are inclined to find – sometimes using a loophole as an alternative – other reasons for their claims, rather than relying directly on the violation of fundamental rights. Admissibility is therefore one problem – but not the only one – with which litigation on environmental protection and the fight against climate change must contend. The criteria imposed by Plaumann should be revised to adapt them to the needs of environmental protection. In fact, criteria designed to be applied to human beings are ill-suited to environmental protection, which would only be able to comply with them indirectly using other justifications aimed at demonstrating the presence of an individual interest.

It is also worth recalling that the European Union is bound by the Aarhus Convention. Article 9(3) of the Aarhus Convention requires that “members of the public […] may initiate administrative or judicial proceedings to challenge acts and omissions by private persons or public authorities which contravene provisions of national law relating to the environment”. As noted in another comment on the case, the Compliance Committee of the Aarhus Convention has stated in two reports published in 2011 and in 2017,that the criteria established by the Plaumann judgment were “too strict to meet the Convention’s criteria” because “persons cannot be individually affected if the decision or regulation takes effect by virtue of an legal objective legal or factual situation”.

However, beyond the question of admissibility, it could be argued, as some scholars did, that the possibility for an individual applicant to trigger a reference for a preliminary ruling under Article 267 TFEU provides full and effective judicial protection against general measures, such as measures related to environmental protection and the fight against climate change.

AG Jacobs in his opinion in Unión de Pequeños Agricultores case of 2002 criticised this assumption.

In fact, under the preliminary ruling procedure the applicant has no right to decide whether a reference is made, which measures are referred for review or what grounds of invalidity are raised and thus no right of access to the Court of Justice; on the other hand, the national court cannot itself grant the desired remedy to declare the general measure in issue invalid. Furthermore, there may be a denial of justice in cases where it is difficult or impossible for an applicant to challenge a general measure indirectly (e.g. where there are no challengeable implementing measures or where the applicant would have to break the law in order to be able to challenge ensuing sanctions. Finally, indirect challenges to general measures through references on validity under Article 267 TFEU present several procedural disadvantages in comparison to direct challenges under Article 263 TFEU before the General Court as regards for example the participation of the institutions which adopted the measure, the delays and costs involved, the award of interim measures or the possibility of third-party intervention.

Conclusion

In 2002 AG Jacobs has started calling for the Plaumann criteria to be significantly revised and this is more than acceptable. However, the CJEU has strictly applied the individual concern requirement up to now. While the preliminary ruling does not represent a complete protection against infringements resulting from measures of general application, it is also true that it can confer some protection on individuals and can therefore be an alternative to direct action at least until the CJEU is willing to change its approach on the concept of individual concern.

Beyond the question of the application of Article 267 TFEU, in a case like the people’s climate case, appeals under Articles 263 and 277 TFEU would also have failed. The Plaumann criteria would have constituted an obstacle to the application of Article 277 TFEU. Furthermore, the level of partial harmonisation of the 2018 Climate and Energy Framework would have made a possible appeal to the CJEU under Article 263 TFEU against the implementing acts of the member states inadmissible.

The CJEU’s restrictive approach now differs from those adopted by national courts regarding the locus standi of natural persons in climate actions. But the admissibility of a climate action at national level to safeguard a fundamental right is influenced by national laws, which leads to differences in protection depending on the Member State in which action is taken. A second problem is the often very high costs that claimants must bear for a nationwide action, as well as possible delays in the procedure.

Today, the European Union is one of the main global actors for the adoption of ambitious climate policies, but there is still a lot to be done in terms of access to justice for environmental and climate action.

* Enzo Elia is a teaching and research assistant, and he is carrying out a Ph.D. in EU and international climate change law at the University of Geneva. His Ph.D. research aims to understand how and to what extent the EU contributes to the development and implementation of the global climate regime through the analysis of the compositional elements of the concept of EU actorness. The analysis will lead to the redefinition of the concept of EU actorness in the field of climate change. Furthermore, ascertained that the discipline still lacks a generalizable conceptual framework, an attempt will be made to propose a new model to bring research on actorness to a systematic level.

His current areas of interest and activity include EU and international environmental and climate change law, EU and international governance, the relationship between climate change and human rights, the relationship between the global climate change regime and other global regimes, the systemic relationships between regional and international organisations, international dispute settlement, sustainable development.