Article, ECJ, EU Commission, Legal Procedure, Rule of law

The Commission fights Poland all the way over the rule of law

Giulio Preti 

 

Introduction

On January 24th, 2020 the European Commission applied to the European Court of Justice for the imposition of interim measures against the Republic of Poland.[1] This request came within the context of the proceedings for an infringement of Articles 19 (1) TEU and 267 TFEU. In essence, by creating a politically controlled disciplinary chamber for the judges of the Supreme Court, the Polish legislation allegedly fails to guarantee the rights of defense of the judges under disciplinary proceedings and limits the Supreme Court’s right to refer question for preliminary rulings. The goal of this contribution is to give a brief overview of the factual and legal background of the dispute and to analyse the principle of the rule of law within the European architecture and the justifications brought forward by the Polish government.

 

Factual background

Ever since the introduction of the controversial Law on the Supreme Court on April 3rd, 2018, the European institutions and Poland have been locked into a dispute which culminated in the European Commission triggering the procedure provided for in Article 7 TEU, which may culminate in the suspension of the voting rights of the representative of the Member State in the Council.[2] The law imposed to the judges of the Supreme Court to retire at the age of 65, unless granted an authorisation by the President of the Republic, de facto allowing the ruling party, Law and Justice (PiS), to ensure that only judges aligned with the position of the government would be allowed to keep their position. The Polish government has further escalated the dispute by modifying the law on the Organisation of the Courts by allowing the Minister of Justice to nominate the members of the disciplinary chamber for ordinary judges and for the judges of lower courts, effectively putting the entire judicial system under the direct control of the executive branch.

 

Legal background and jurisprudence of the Court

Interim measures are based on article 279 TFEU which states that: “The Court of Justice of the European Union may in any cases before it prescribe any necessary interim measures” and by articles 160-166 of the Rules of Procedure of the Court. Although not unprecedented, these measures had been “tested” by the Court for the first time only one year earlier against Poland within the controversy regarding the lodging of wood in the forest of Białowieża.[3] On the other hand, a similar case had been brought against Hungary, which had enacted a similar law. That proceeding, however, had been brought for a violation of Directive 2000/78, asserting that the judges, considered as “workers” for the purposes of the Directive, had been discriminated against due to their age.[4] Hardly a comparable approach with the one taken against Poland.

 

The rule of law in Europe

The European Commission has defined the rule of law as a system where “all public powers always act within the constraints set out by law, in accordance with the values of democracy and fundamental rights, and under the control of independent and impartial courts”.[5] The rule of law is at the center of the EU legal system: article 2 of the TEU describes it as one of the foundations of the Union, the Court has repeatedly held that: “the EU is a union based on the rule of law”.[6] However, there is disagreement on whether the rule of law is merely a legal standard to which the Member States have agreed upon, or if it is the essence or, even, the very purpose of the Union,[7] through which the institutions may seek to strengthen their own legitimisation.[8]The EU, however, has intervened rarely in the constitutional matters of Member States. In 2000, for example, the EU did not act directly against Austria for the involvement in the government of the xenophobic FPÖ, but pushed the Member States to retaliate diplomatically against Austria with little success. The subsequent approach taken by the Commission against Hungary, Romania, Greece, Italy and France,[9] on the other hand, clearly endorsed the view which sees the rule of law as the essence of the European project. The successful enforcement of the rule of law within the context of this proceeding, therefore, will likely have an impact on the role of the rule of law in the EU framework.

 

The justifications of the Polish government

On March 7th, 2018 the Polish government published a White Paper [10] seeking to explain the need for judicial reforms. The justifications brought forward relate to i) efficiency of proceedings and to fight the “peculiar bureaucratic corporate culture which has emerged in the Polish administration of justice” ii) the existence of an imbalance of powers, iii) the failure to account for the communist past of judges. Whereas the government highlights that: “subordinating the judiciary to other branches of government cannot be a solution to all the problems described” it does little to hide that one of the objectives of the law must be that of relieving of their duties the judges which have been involved in the administration of justice during the Communist period. This should actually guarantee the rule of law because: “if [justice] is to be exercised by people who were entangled in a dishonorable service to totalitarian or authoritarian systems and did not guard the law but abused it to persecute human rights and civil liberties, it negatively affects the public trust in the judiciary – and thus the rule of law itself”.

 

Conclusions

The proceedings brought forward by the Commission underline the importance attached by the European institutions to this principle. For better or worse any decision of the Court of Justice will constitute a significant precedent in the matter and will define the power of the EU to challenge internal legislation falling within the exclusive competence of Member States for the violation of general principles of EU law.

 

 

The Author

Giulio Preti is an LL.M. student at King’s College London, specialising in Competition Law.

Article, Brexit, Commentary

Exercises de style – Reflections on Brexit

Luigi Lonardo

The goliardic vein of our editors, blended with the tedium vitae that assails at least one of them in this season in which the year dies most sweetly, has produced a couple of reflections on Brexit presented in the form of Exercises in Style – written, that is, alla maniera di Joseph de Maistre.

Joseph de Maistre, 1753-1821, was a Savoyard diplomat and politician, a sturdy anti-rationalist reactionary voice of the counter-enlightenment, who wrote against the French revolution and in favour of the Monarchy as divinely sanctioned form of government.

The following is a translation – with worryingly minor amendments – of the initial pages of de Maistre’s Considerations sur la France (1797)

Reflections sur le Royaume Uni

A short essay on Brexit in the style of de Maistre.

A miracle is an effect produced by a divine cause that suspends an ordinary cause. If, in the middle of the winter, a man orders a tree, in front of thousands of witnesses, to cover itself immediately with leaves and fruits, and the tree obeys, everyone would consider it a miracle, and look at it in awe, and bow in front of the performer. Well Brexit is as awesome, in the realm of politics, as the instantaneous fructification of a tree in the month of January: and yet people, instead of admiring it, look elsewhere, or make foolish commentaries.

Men, led by their pride, see disorder when they do not understand the cause of something, or when the causal chain they tried to create is suspended, or when things do not go as they expected them to. The truth is that they are necessarily limited, since they are mortal creatures, and equally limited is their action, especially at revolutionary times such as the ones we are living.

Uncertainty is the key word of the times. This word is very meaningful if it is meant as a reminder of the prime cause that creates such a spectacle; but it is stupid if it only expresses a sense of despise for out times or our politicians, or a sterile disenchantment.

‘How come – we read everywhere – that a country famous for her political leadership, her stable and much-admired parliamentary system, her seriousness and conscientiousness has taken such a decision! How can politicians, who appear to be the ineptest of their generation, be put in charge of guiding such a momentous change! An opportunistic mayor, a clever and deceitful political class, they hold the country in their hands! The European Union is swallowed by both government and opposition! Everything is possible for the evil ones!’

Look, never is certainty more visible, never Providence is more present, than when superior action substitute itself to that of men, and acts by herself. What is most striking about Brexit, is its sheer force that seems to destroy all obstacles. It is a hurricane that swifts away as light hay everything that human force has been able to oppose to it: nobody was able to stop it. The purity of the motivations has perhaps shown the obstacle: but that is all; and this zealous force, proceedings irresistibly toward its goal, has rejected Miller, a second referendum, etc.

One ought to say that Brexit leads men more than men lead Brexit. This is correct, and even though we could say the same about all great revolutions, it has never been truer than in this context. The fools who appear to lead Brexit only enter into it as instruments; as soon as they have the presumption to dominate it, the fall ignobly. Those who wanted to deliver Brexit did so without really wanting it and without knowing what they were doing.

Excessively mediocre men such as Nigel Farage have exercised, on a guilty nation, a despicable form of despotism: and surely, they were the first to be shocked by their own success. But they were drawn to this success, unwittingly, by circumstances. And Providence has thrown them away, and wanted to put Theresa May in charge instead. Their faith in Brexit, they who are men without political intelligence, has led them to dare anything, without fear of a Remain campaign. They have kept marching forward, without looking back. And so far everything has succeeded for them, because they are the instrument of a force that knows better.

Article, EU Commission, EU Parliament, Institutions

The arm wrestling between the European Parliament and the European Commissioners-designate?

The Editors

 

So here go not one, not two, but three Commissioners.

Granted, the polemics about the title of the portfolio for the Greek Commissioner, ‘Protecting the European way of life’, did sound like a provocation, and there was no doubt that a hard scrutiny in the European Parliament would be in store.

Yet, many simply failed to predict that the Commissioners’ path would be blocked even before the hearings of prospective Commissioners would start (and they did start a couple of weeks ago, on 30 September). Laszlo, Hungarian Commissioner designated for enlargement, and Plumb the Romanian Commissioner for trasport, have instead being ‘rejected’ by the Legal Affairs Committee of the European Parliament. The Committee found they had too obvious conflicts of interests. This opportunity is given to the Committee by a rule in the annex of the rules of procedures of the European Parliament. This rule is commendable: nobody else is entrusted to check whether the Commissioners-designate (i.e., those proposed by the President of the Commission and which need to be approved, collectively, by the Parliament) can indeed represent the interests of the European Union.

In addition to the Legal Affairs Committee, each Commissioner-designate is heard by the European Parliament at a ‘confirmation hearing’. This is an occasion for the EP to  inform its decision over consenting or rejecting the new Commission as a whole. It is also an occasion to hold the President of the Commission accountable, as we will explain later.

The Hungarian and Romanian Commissioner-designate did not make it to the hearing, but the designated French Commissioner Sylvie Goulard also failed to make it into the new college of commissioners. The European Parliament, at the confirmation hearing, took issue with the answers given by Goulard on the alleged wrongdoing during her time as a MEP. It is easy to suspect that the real target of the Parliament was not Goulard herself, but the French President Macron (who hastened to say ‘it’s not my fault’…).

Where does it leave us with interinstitutional relations? The impression is that the European Parliament, who has the power to approve or disapprove the entirety of the Commission, had to build enough criticism over the single Commissioners-designate in order to have leverage on Ursula von der Leyen and her new Commission.

The trajectory has been one of growing influence of the European Parliament since the first elections held with the rules established by the Treaty on the European Union as modified in Lisbon. The rule for the nomination of the President of the Commission is not univocal: ‘Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission’ (Article 17.7 TEU).

In 2014, the European Council and the European Parliament struggled over the name of the President of the Commission. The Parliament had the upper hand on that occasion: ‘taking into account the elections of the European Parliament’ was interpreted as meaning that the Spitzenkandidat (the top candidate) chosen by the relative majority party would be the President (Jean-Claude Juncker). Then, only a Commissioner was rejected, the former prime minister of Slovenia Bratusek,

In 2019, it was instead the Member States (championed by Macron) that imposed von der Leyen as President of the Commission (instead of Manfred Weber, the Spitzenkandidat of the European People’s Party, the party with relative majority of seats in the Parliament). The result is not surprising. Remember that in January 2018 the European Parliament had already stated that it ‘will be ready to reject any candidate in the investiture procedure of the Commission President who was not appointed as a Spitzenkandidat in the run-up to the European elections’.

 

Arbitration, Article, Courts, GDPR

Tennant Energy vs. Canada: Diluting the Impact of GDPR in International Treaty Arbitration

Bhavit Baxi

The Permanent Court of Arbitration ‘PCA’ in Tennant Energy vs. Canada[1] ruled that EU General Data Protection Regulations (‘GDPR’) will not come within the material scope in investor-state arbitrations under Chapter 11 of North American Trade Agreement ‘NAFTA’, a treaty to which neither the European Union nor its Member States are the parties.

Factual Background

In June 2017, the Tennant Energy LLC instituted the arbitration proceedings against Canada which were in front of Permanent Court of Arbitration. Thereby Tennant Energy under Chapter 11 of NAFTA claimed the damages from Canada amounting to $ 116 Million relating to its investment in a wind project.

Since the beginning of the proceedings the preliminary issues of Data Protection were the prime focus of the discussions.[2] It was Argued by the Claimant that EU General Data Protection Regulation 2016/679 should be taken into account and the procedures developed to comply with it, since one of the tribunal members (Arbitrator) is based in the UK.[3] Canada, on the other hand, argued that the GDPR does not generally govern the arbitration proceedings because, among other things, the claim was made under a treaty to which neither the EU nor its Member States are a party. Therefore, the arbitration is outside of the material scope of the GDPR.[4]

Procedural order

The Arbitral Tribunal on 24 June 2019 informed both the parties via email very briefly in two paragraphs stating “Arbitration under NAFTA Chapter 11, a treaty to which neither the European Union nor its Member States are party, does not, presumptively, come within the material scope of the GDPR.”

Further Tribunal also clarified that Procedural Order would not make any reference to GDPR, however this would be ‘without prejudice to the importance of ensuring a high level of data protection’.[5]

Applicability of GDPR

The fundamental objective of GDPR is to protect natural persons with regard to the processing of their personal data. It regulates and safeguards the fundamental rights and freedom of natural persons and in particular the right to have their personal data protected.

On plain reading of Article 3 of General Data Protection Regulation 2016/679 it could be concluded that the regulation is applicable to Arbitral Tribunals seated in EU and also tribunals outside EU concerning EU data subjects.

In Tennant Energy vs. Canada it was argued[6] by Canada that since the Permanent Court of Arbitration  seats in the Netherlands, this grants certain immunities to  PCA and it should exclude PCA from the applicability of GDPR.

Article 44, Chapter V of GDPR, expressly states that it covers the transfer of data to international organizations or third countries in order to ensure that the level of protection of natural persons is guaranteed.  Moreover, a European Commission decision of ‘adequacy’ is necessary prior to the transfer of the personal data to third countries or international organizations.

Further  the guidelines issued by European Data Protection Board[7] on the territorial scope of GDPR, which more explicitly clarifies that GDPR can extend to data processing that occurs outside of the EU: “The text of Article 3(1) does not restrict the application of the GDPR to the processing of personal data of individuals who are in the Union. The EDPB, therefore, considers that any personal data processing in the context of the activities of an establishment of a controller or processor in the Union would fall under the scope of the GDPR, regardless of the location or the nationality of the data subject whose personal data are being processed. This approach is supported by Recital 14 of the GDPR which states that “the protection afforded by this Regulation should apply to natural persons, whatever their nationality or place of residence, in relation to the processing of their personal data.”  It was further submitted by the claimant[8] that one of the London-based arbitrator has confirmed in a data privacy notice that the GDPR applies to him, as he is is both a data “processor” and a data “controller”, pursuant to how the terms are defined in the GDPR. Thus, it could be prima facie concluded that by no means Canada can escape from the applicability of GDPR.

Conclusion

GDPR serves as a strongest medium to protect sensitive and privileged, personal and commercial information, in international disputes. However, the impact of GDPR in international treaty arbitrations still remains faded and it continues to be a big topic of debate in the arbitration arena. It seems that there is a great need of case law which could settle this issue.

Lastly, ICCA and the IBA have established a Joint Task Force on Data Protection in International Arbitration Proceedings. The task force is developing the guidance to facilitate arbitration professionals with regards to data protection in arbitration proceedings, which is due to be published later in the year.

 

The author

BLS-LLB (Hons.) Student at M.K.E.S College of Law, University of Mumbai, India.

 

 

[1] PCA Case No. 2018-54: Tennant Energy, LLC (U.S.A.) v. Government of Canada.

[2] Claimants Submission on confidentiality.

[3] Investor comments on the EU General Data Privacy Regulation; – Tennant Energy, LLC (U.S.A.) v. Government of Canada.

[4] Reply to Claimant’s Submissions.

[5] See 1.

[6] Tennant Energy LLC v. Government of Canada Response to the Claimant’s Submission on the European Union General Data Protection Regulation

[7] Guidelines 3/2018 on the territorial scope of the GDPR (Article 3) – Version for public consultation

[8] Questions And Investor’s Response To Tribunal GDPR Questions And Data Privacy Questions June 4, 2019

Article, Brexit, Reforms for the EU

The end of ‘Fortress Europe’? The implications of asymmetrical UK-EU intellectual property rights after Brexit

James Taylor

  1. Brexit and the future of IP rights

For some time, businesses have been awaiting clarifications about the future of the UK-EU relationship with regard to intellectual property rights. The Intellectual Property Office (IPO) has declared it will convert all EU registered trademarks into UK marks without charge to bridge the gap that will soon exist in law between UK and EU IP rights. As regards patents, it is clear that Brexit will not have a decisive effect,  since it appears they will be governed by a separate system and an independent court.[1] The most immediate question, and currently the most uncertain, concerns the ‘exhaustion’ of IP rights. If there were a deal along similar lines to the current Withdrawal Agreement signed in November 2018, equivalence of IP rights could be expected throughout the two-year transition period that such a deal would trigger. In preparation for the event of a no-deal, however, the UK Government has laid statutory instruments[2] before Parliament that state Britain’s intention to continue honouring the principle of regional IP right exhaustion within the European Economic Area (EEA) following Brexit.

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