Tag: eu law

UKAEL Annual Lecture 2013 – Sir Nigel Sheinwald on ‘Britain and Europe: A New Stage in an Old Debate’

Adrienne Yong

PhD Candidate at King’s College London

 

A year ago I wrote on the Annual Lecture Lady Justice Arden gave on proportionality. This year I had the pleasure of attending the UK Association of European Law (UKAEL)’s Annual Lecture chaired by Prof. Sir Francis Jacobs (President, soon to be succeeded by Prof. Sir Alan Dashwood) and presented by Sir Nigel Sheinwald, the previous British Ambassador to the United States and British Permanent Representative to the EU. Needless to say, his ex-civil servant status under the auspices of the Foreign and Commonwealth Office held him in good steed to be discussing the relevant pros and cons of Britain remaining a EU Member State (MS) in light of the proposed referendum by the Conservative Party (should they remain in government come 2017).

 

Sir Nigel began with the caveat that his background was not in law therefore the talk would be on Europe, as opposed to European law. For a European law researcher, this political aspect was a refreshing break from the convoluted doctrinal analysis that takes up most of a legal researcher’s time. He explained that whilst recognising the Britain-Europe discussion was not novel, the stage the discussion is reaching now is becoming more so. The EU is changing, and these changes are affecting British membership. Sir Nigel broke his argument down into first discussing British exceptionalism, the changes the EU is facing, the international reaction to the UK and his conclusions on British membership of the EU.

 

British exceptionalism

The main event that Britain found itself lucky to have escaped was the Eurocrisis. It had always been “stubbornly negative” about the EU, but the choices made in regards to opting out of the single currency seemed to bear fruit in terms of escaping the main crisis befalling the EU at present. Its strong sense of Parliamentary sovereignty as well as common law traditions in Britain were two reasons it opted out to begin with.

 

However, Britain did sign up to membership of the EU for a good reason. Sir Nigel cites Dean Acherson, ex-US Secretary of State, and his lesser known quote about the UK’s roles in both the USA and commonwealth nations. He stated that in both areas, the UK’s role was “about played out.”[1] It would seem that the EU would have been the best next course for the UK, remaining in the mainstream but negotiating special arrangements for themselves considering their relative uncertainty at the outset. Membership was thus “conditional”. Modern EU conditions should seem more acceptable to the UK now, however, one must nonetheless tread lightly given the changes it is undergoing presently.

 

Changes in the EU

As mentioned, the Eurocrisis is the most obvious change the EU has gone through, which has severely impacted many opinions in the UK as to the value of the remaining in the EU. There is a close relationship between monetary integration, democratic legitimacy and national Member State control, rendering upholding the Eurozone and single market a more difficult task. Sir Nigel toyed with the idea that perhaps now it is not credible to be excluded from the euro given the solidarity demonstrated therein. However, the Eurocrisis left a bad impression on the UK. The EU will have to do the most they can to stabilise the crisis, with efforts focused there rather than with any other issues the UK has prioritised. Being excluded from these crucial tasks and discussions will have the negative effect of widening gap between the UK and its allies.

 

He also argues that it is unclear if eurosceptics have reflected the population’s sentiments accurately, leading onto the international reaction to the UK’s apparent disdain. Clearly, given the changes the EU is undergoing, stakes are higher if Britain decides to withdraw. However, the more important issue remains that the potential is more real now of this withdrawal. Interestingly, for governments in the Eurozone, survival is most important. The risk of withdrawal of the UK is peripheral in comparison. However, there is still time before this exit is decided with both European Parliament and UK elections a way off. Sir Nigel highlights that the EU may want to consider certain reforms, with the Working Time Directive and tougher action on benefit fraud given the growth of free movement of persons among his suggestions. However, convening an Intergovernmental Conference (IGC) which would be necessary to make the changes the UK so desperately wants, cannot feasibly be done in the time before the referendum.

 

International Reaction to the UK

The most poignant reaction comes from President Obama of the USA, and his piece of advice to David Cameron as to the UK’s membership, stating that it would be a mistake for the UK to leave the EU.[2] Similarly, the Australian government wrote to William Hague, Foreign Secretary of the UK, on this very topic on February 14 also urging reconsidering leaving the EU. These strong sentiments came off the back of David Cameron’s own speech on January 23 where he asserted that the EU was to ‘secure prosperity’[3] and that there should be a maintained role for the UK. Additionally Sir Nigel emphasised that the Japanese memo to the UK reviewing the UK’s balance of competence between itself and the EU[4] also strongly discouraged leaving, for it would negatively affect the Japanese’s entry to the EU market. Germany has begun to overtake the UK in being the key location for new inward investment projects especially from Japan, thereby incentivising the UK to consider remaining in the EU for trade reasons.[5]

 

Value of British Membership to the EU

If these compelling arguments in terms of the international reaction were not enough, Sir Nigel continued on to state his position believing in the benefits of the UK remaining the EU. Though quality of membership would diminish as the euro diminishes in importance, many other areas would remain unchanged. The single currency is but one of the EU’s projects. He described it as a long and winding road. The Eurocrisis may accelerate, but otherwise development in the EU will benefit the UK. The arguments to stay in are compelling and even on a business level, institutions such as the Confederation of British Industry (CBI) agree that withdrawal would be detrimental. Exports to the EU are even larger than those of growing emergent economies.

 

Sir Nigel thus emphatically put his position across that the UK should remain in the EU, and whilst the old debate has seen certain quite significant changes, the position – both in terms of the UK’s membership and one’s opinion as to the benefits of the UK’s membership – should remain unchanged.

 

 

Call For Papers – The Thousand Faces of the Four Freedoms

KSLR European Law Blog hereby invites you to submit abstracts on the topic of  “The Thousand Faces of the Four Freedoms”

The EU internal market – the embodiment of the four fundamental freedoms of goods, services, persons and capital – has arguably been one of the EU’s most successful and indeed influential constructs. However, like most EU concepts, it is troubled by divergent interpretations. This has led to great debate by various commentators, and it is these plentiful widespread arguments to which we seek discussion for the blog. Articles and case comments on any areas related, directly or indirectly, with any one of the EU’s four freedoms are welcomed.

Please submit abstracts of no more than 250 words by 4 November 2013 to adrienne.m.yong@kcl.ac.uk and agne.limante@kcl.ac.uk. We only accept abstracts relating to EU law.

Authors of selected abstracts will be informed within two weeks. A full paper (1,500 to 2,000 words) should be submitted by 9 December 2013. The style guidelines may be found at http://kslr.org.uk/blogs/europeanlaw/about-us/. The articles resulting from selected abstracts will be posted on KSLR European Law Blog website.

The call for papers is open to submissions from students and professionals from the UK and abroad but only specific to EU law.

Please email the above addresses if you have any further questions. We look forward to hearing from you!


KSLR EU Law Blog is a blog run by the students of the King’s College London and forms a part of the KCL Student Law Review. The blog is an informal academic forum in which law students and professionals express their opinion EU law issues and are informed about recent developments in EU law. You can like us on Facebook or follow us on Twitter @EUKSLR

Case solved: CJEU releases its final interpretation of ‘regulatory act’

Dr. Agne Limante

MA candidate in EU Law at King’s College London

 

This short note is an update to our earlier post Inuit and Microban: ECJ explains notion of ‘regulatory act’.

 

Yesterday, 3 October 2013, the Court of Justice of the European Union (CJEU) released its final judgment in the Inuit case[i] – a case which concerns the standing requirements in annulment actions and which is an appeal against the earlier General Court’s interpretation.[ii]

Under Article 263(4) of the Treaty on the Functioning of the European Union (TFEU), establishing the basis for annulment actions of private applicants, any natural or legal person may “institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures”. Up until now there was still a doubt as to what a “regulatory act” might include as no further reference could be found in the Treaties, no final decision of the Court of Justice existed and appeal from the General Court was pending.

Inuit was the first case where the CJEU was called to interpret the notion of ‘regulatory act’, a novelty introduced by the Lisbon Treaty. The case concerned the European Parliament and Council Regulation No. 1007/2009 on trade in seal products, which the applicants claimed to be a regulatory act. However, the General Court (order of 6 September 2011) was of the opposite opinion. It concluded that ‘regulatory act’ for the purposes of Article 263(4) TFEU must be understood as covering all acts of general application apart from legislative acts. It dismissed the action for annulment as it was lodged against regulation adopted through the legislative procedure.

Hoping, that the Court of Justice will decide to introduce a more flexible interpretation of ‘regulatory act’, Inuit Tapiriit Kanatami and other applicants brought an appeal against the order of the General Court. However, yesterday’s decision dashed all hope. The Court of Justice decided to follow Advocate’s General Kokott opinion (delivered on 17January 2013) and to stick to interpretation of ‘regulatory act’ presented by the General Court.

The Court firstly noted that it is apparent from the third limb of the Article 263(4) TFEU that its scope is more restricted than that of the concept of ‘acts’ used in the first and second limbs of the Article 263(4) TFEU, in respect of the characterisation of the other types of measures which natural and legal persons may seek to have annulled. Thus, according to the Court, ‘regulatory act’ cannot refer to all acts of general application but relates to a more restricted category of such acts. The Court of Justice supported the position of the General Court agreeing that legislative acts, which, although they may also be of general application, are not covered by the concept of ‘regulatory acts’, and, therefore, continue to be subject to more stringent admissibility rules (applicants must prove direct and individual concern).

Thus, it can now finally be stated that the case is solved and it is clear what types of acts are ‘regulatory acts’ and might be subject to less stringent standing rules. According to the jurisprudence of the CJEU, for an act to fall under the concept of ‘regulatory act’, it shall satisfy the following requirements:

–       It shall be an act of general application (not an individual act)

–       It shall be non-legislative. Whether an act is legislative or not is determined by the procedure which led to its adoption: legislative is an act adopted through legislative procedure (ordinary or special).

Considering such case law, the ‘floodgates’ were not opened and the possibilities for private applicants to challenge legislative acts remain extremely limited. On the other hand, the doors for challenging non-legislative acts after Lisbon Treaty became more open. Well, as one would say, you cannot get it all at once…

[i] Case C-583/11 P Inuit Tapiriit Kanatami and Others v European Parliament and Council of the European Union. [2013] ECR II-0000.

[ii] Case T-18/10 Inuit Tapiriit Kanatami and Others v European Parliament and Council of the European Union [2011] ECR I-00164.

The EU Law of Evidence – Development and Challenges for National Criminal Procedure System

Teresa Bedulskaja

MA in Law, Vilnius University

 

Introduction

It has to be admitted that the modern reality forces states to cooperate and even to join various international organizations. Meanwhile, international organizations working on their tasks pass binding legal acts that affect the law of their contracting states.

For a long time criminal law remained out of the scope of international law as it was considered to be the cornerstone of state sovereignity. Nowadays, also the criminal law is widely internationalised. This is especially true about the European Union (EU): criminal law of the EU Member States is quite significantly affected by norms enacted by the EU.

One might notice that modern EU criminal law is developing in two ways. First of all, the minimum requirements for criminalisation and penalties are established by the EU institutions. This is so-called vertical harmonization as criminal law norms are directly imposed by the EU on national criminal law systems. Secondly, in accordance with the principles of mutual recognition and mutual trust, norms regulating legal cooperation are passed (horizontal harmonization).

The multi-level character of European criminal procedure is, generally speaking, not as apparent as in the field of substantive criminal law,[1] but still significantly interferes with national legal systems. Unlike the rules in the field of substantive criminal law, the legal acts enacted in the field of criminal procedure in many occasions might have direct application and do not require further implementation.[2] This article will look at mutual recognition of evidence and the following approximation of criminal procedures in the EU Member States as well as discuss the impact of such an imposed recognition on national law.

 

 1. EU competence in the area of evidence law

The current legislative competences of the Union in the field of criminal procedure are shaped by Article 82 TFEU. On the basis of this provision, directives establishing minimum rules are adopted, aiming to facilitate mutual recognition of judgments and judicial decisions, as well as police and judicial co-operation in criminal matters. The abovementioned legal acts relate inter alia to mutual admissibility of evidence between Member States.

We should also be reminded that not only the EU legal acts, which are adopted in the area of criminal procedure, deal with evidence law. Some provisions can be found in other legislation such as the Directive on trafficking in human beings.[3] The Directive lists measures which should be applicable while investigating trafficking in humans (interception, covert surveillance, including electronic monitoring).

This article will only target the legal acts dealing with evidence law directly, leaving other related legislation aside. But firstly, a short look at the principles of EU evidence law.

 

 2. Principles of evidence law in the EU

The judicial cooperation in criminal matters within the EU is based on two basic principles – mutual legal assistance and mutual recognition. Mutual legal assistance follows a forum regit actum philosophy when the evidence received due to interstate cooperation as the result of the judicial cooperation is intended to be sent back to the requesting forum state. The mutual recognition philosophy, on the other hand, requires Member States to accept foreign decisions and execute them “as if they were their own”. Therefore, execution is strictly locus regit actum.[4] The objective of mutual recognition is to remove the possibility of political involvement and to avoid a second examination as to the substantive merits of the case. It may be possible to verify that a certain authority in another Member State has taken a decision, but the merits of that decision should, in principle, be beyond review.

It should be mentioned in this context that it is not always the domestic decision of Member State that has to be recognized, i.e. in case of mutual recognition of judicial decision, a court decision would be subject to recognition, however, if the European Arrest or Evidence Warrant would be issued on the basis of above-mentioned decision, the Warrant itself has to be recognised.[5] As legal scholars point it out, mutual legal assistance still dominates while dealing with supranational evidence law with some exceptions as regarding mutual recognition of evidence warrants[6].

 

 3. EU legal acts in the area of evidence law

Due to the fact that the EU was denied competence in the field of criminal law for quite a while, the usual forms of cooperation between Member States were applied and the legal acts typically used in international law were enacted. This is why first legal documents in the field of cross-border gathering and handling of evidence, the EU Convention from 2000[7] and its Protocol from 2001[8], were based on mutual legal assistance.

The Framework decision on freezing assets and evidence[9] constituted the next important step towards improving the free movement of evidence in the EU. Its features, such as the abolition of the double criminality requirement for the list of so-called “32 offences” and limitation of grounds for refusal to accept the freezing order definitely signified progress in the international cooperation. However, some legal scholars doubted whether the list of “32 offences” did not amount to breach of constitutional provisions: it concerned the equality issues, as not all offences on this list were covered by national criminal law.[10]

It should be mentioned that the said “32 offences” might be divided into three groups: (i) offences under international law, (ii) the so-called common offences which can be found in the criminal law of all the states, and (iii) the offences, which EU requires to criminalise. Thus, it is clear, that similar criminal activity is or must be punishable under the law of all Member States of the EU. The application of this measure with regard to similar but not identical criminal activity, on the other hand, may not constitute a breach of principle of equality in itself. If the collection and freezing of evidence would take place under national law, it would not require all the features of criminal offence definition established, it only would be necessary that the act committed would be punishable under criminal law.

Still, the scope of this Framework decision was not broad enough to cover all aspects of evidence law. The purpose of the act was to prevent evidence from destruction, transformation, moving, transfer and disposal of it. It did not regulate the matters of transmission of evidence between the Member States, thus, in order to get the frozen evidence from other Member State it was necessary to apply other legal acts such as Convention on mutual legal assistance[11] or bilateral or multilateral international agreements.

Such a system did not answer the needs of prosecutorial authorities or courts, and it also negatively affected defendants’ rights, such as the right to trial within a reasonable time. The situation had to be changed. In 2003, the Commission announced that several steps would be taken with respect to transmission of evidence. The European Evidence Warrant (EEW), which made it possible obtaining the already existing evidence, was meant to be the first step. Next, the legal acts on evidence, which does not exist but is directly accessible, and evidence, which does exist but is not accessible without using scientific methods, had to be adopted. The last step was meant to be the unification act, which would apply to all features of evidence law and repeal the former provisions.[12]

The first step towards improving free movement of evidence was already completed as the Framework Decision on European Evidence Warrant[13] was adopted in December 2008. It had to be transposed into Member States’ national law by January 2011. The European Evidence Warrant enables Member State authorities to issue decisions, which require the executing Member State to obtain objects, documents or data necessary and proportionate for the purposes of criminal proceedings, which could be used in proceedings, were they to be found on the territory of the issuing Member State.

Under Article 7(a) of the Framework decision, an EEW may only be issued if the objects, documents or data sought are necessary and proportionate to the purpose of the proceedings, and if they can be obtained under the law of the issuing State in a comparable case if they were available on the territory of the issuing State, even though different procedural measures might be used. Some authors argue, that no safeguards protecting human rights exist, as no challenge may be brought on such grounds in the executing State.[14] It is probably undeniable, that application of this measure does to some extent limit the rights of the persons involved. Still, parallels can be drawn with the national rules. For example, the Lithuanian Code of Criminal Procedure[15] contains some provisions which enable the investigating officers or the court to request the corresponding officials in other state district to apply some investigative measures in order to avoid unnecessary delay or expenses.[16]  These investigative measures may not be challenged in the district court of delegation. Such system also limits the rights of persons. Of course, there is a difference between the other district of a state and the other state. However, in both situations, there exists a possibility to challenge the way the evidence is collected or the evidence itself. This can be achieved by applying to the destination state or district court, so the rights of individuals are protected. As new technologies are introduced into court process, challenging evidence and its collection becomes even more accessible.

Shortly after the adoption of the European Evidence Warrant, some Member States called for further improvement of transfer of evidence. This resulted in the Proposal for the Directive on European Investigation Order.[17] The objective of the proposed directive is to create single, efficient and flexible instrument for obtaining evidence located in another Member State in the framework of criminal proceedings.[18] The newly adopted directive should replace both the provisions of convention on mutual legal assistance and above-mentioned framework decisions. The main focus of this legal act is to cover all the investigative measures.

The newly proposed measure is harshly criticized by some legal scholars. For example, Peers points that “Although it is certainly desirable to consolidate the complex legal framework in this area, and some of the provisions of the proposed Investigation Order are unobjectionable, many of the changes proposed to the current legal framework would constitute a reduction in human rights protection and even […] an attack on the national sovereignty of Member States.”[19]

However, it is hard to agree that the proposed act constitutes such a threat. First of all, the protection of a person’s rights is ensured by granting the executing Member State discretion to apply another investigative measure which would achieve the same result as the measure provided for in the European Investigation Order by less coercive means (paragraph 10 of the preamble, art. 9).  This provision also shows that the state sovereignty is not so limited.

Secondly, although it is true that the wording of the directive contains no grounds to refuse an order on the basis of ne bis in idem, it should be borne in mind that various provisions of the Directive contain referral to the protection of fundamental rights (e.g. paragraph 17 of the preamble, paragraph 3 of art. 1). Lastly, there is a provision for refusal to recognise the order on the basic of immunity or a privilege under the law of the executing State (paragraph 1 of art. 10), which does include the possibility to take into account the principle of ne bis in idem.

 

Conclusions

As one might notice, the EU competence in the criminal procedure is shifting from traditional means of interstate cooperation towards a new legal order. This shift is clearly visible in the area of evidence law. Still, the aim to improve cooperation cannot always be achieved due to various impediments related to EU institutional structure and will of Member States. The proposed stages of harmonization of evidence law are excessive and duplicate each other. In the light of legal economy it would be more appropriate to adopt one legal act covering all the aspects of transmission of evidence, since the more legal acts implemented into national law, the more expensive it is, from the reprint of legal acts and new forms of legal documents and up to the principle of legal certainty.

 

[1] Klipp, A. European Criminal Law. An integrative approach. 2nd edition. Intersentia. 2012. p 225.

[2] Ibid

[3] Directive 2011136/EU of the European Parliament and of the Council of 5 April 2011 on preventing and com­bating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA. [2011] OJ 110111. This directive replaced Council Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking in human beings.  OJ L20311.

[4] EU cross-border gathering and use of evidence in criminal matters. Towards mutual recognition of investigative measures and free movement of evidence? IRCP-series. Volume 37.

[5] Miettinen, S.  Criminal Law and Policy in the European Union. New York: 2013 p. 177.

[6] Krzysztofiuk, G. Europejski nakaz dochodzeniowy // Prokuratura i prawo. 2012. No 2. p. 81- 106.

[7] Council Act of 29 May 2000 establishing in accordance with Article 34 of the Treaty on European Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union.  OJ C 197, 12.7.2000, p. 1–23;

[8]  Council Act of 16 October 2001 establishing, in accordance with Article 34 of the Treaty on European Union, the Protocol to the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union. OJ C 326, 21.11.2001, p. 1–1.

[9] Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence. OJ L 196, 2.8.2003, p. 45–55. 

[10] Švedas, G. Tarptautinė teisinė pagalba baudžiamosiose bylose. Baudžiamojo persekiojimo perdavimas ir kitos savitarpio teisinės pagalbos baudžiamosiose bylose formos. Vilnius, 2008, p. 140.

[11] Council Act of 29 May 2000 establishing in accordance with Article 34 of the Treaty on European Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union.  OJ C 197, 12.7.2000, p. 1–23;

[12] Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents and data for use in proceedings in criminal matters, COM (2003) 688 final, p. 10.

[13] Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters. OJ L 350, 30.12.2008, p. 72–92.

[14] Irvin, G. The European Evidence Warrant: an Introduction. ECBA Spring Conference, Potsdam, April 2007. P.  3.

[15] Lietuvos Respublikos Baudžiamojo proceso kodeksas. Valstybės Žinios, 2002. Nr. 37-1341, with further amendments.

[16] Art. 175, para 1. Separate orders.When investigative activities  have to be carried out in another place, the prosecutor or the investigating officer may undertake it or delegate to do this to the appropriate prosecutor or the investigating body. […]

[17] European Investigation Order in criminal matters. Initiative Belgium, Bulgaria, Estonia, Spain, Austria, Slovenia and Sweden. 2010/0817(COD).

[18] Proposal for a Directive of the European Parliament and the Council regarding the European Investigation Order in criminal matters. Explanatory Memorandum.

[19] Peers, S. The proposed European Investigation Order: attack on human rights and national sovereignty. © Statewatch ISSN 1756-851X. P. 1.

REVIEW: EU Law Panels at the International Graduate Legal Research Conference (IGLRC) 2013 at King’s College London, 8-9 April 2013

Christy Burzio and Adrienne Yong
PhD Candidates at King’s College London

 

It was a great privilege for the authors of this post to have been present for the seventh annual IGLRC held at King’s College London on the 8-9 April 2013. Indeed, the panels were sure to provoke a lot of great discussion chaired by Professor Alex Türk, both in the realm of the tense political, social side of the Union and in the midst of the tough economic times Europe faced and still faces. As greatly varied subjects within EU Law itself, there were two panels split accordingly, the first discussing the EU’s modern social side including issues on identity, fundamental rights and political undertones of judicial review and revocation and the second primarily focused on the financial side of the EU in austerity, agencies and supervisory authorities in banking.

 

The first panel consisted of Eleni Frantziou (University College London), Ana Júlia Maurício (Cambridge) and Erin O’Leary (Liverpool John Moores). It was interesting that whilst the topics of each presenter did vary greatly on the face of it, it would ultimately emerge that they all voiced a commonality. Some presented it as a concern, others as an issue to be acknowledged. They all came back to the same point regarding the un-reconciled status of the EU as lacking coherence in terms of its policy and direction. However, whilst pessimistic in nature on the outset, the three presenters each demonstrated a keen desire for there to perhaps be more room for constitutionalism within the EU legal order and structure. The presence of this trend was an interesting one to note and one certainly considered as being characteristic of the EU generally. The themes were presented from the point of view of fundamental rights and horizontal effect, from national final administrative acts and revocation and from a more socio-legal linguistic identity point of view.

 

The first panel began with a refreshing reference to artistic culture, entitled ‘The constitutional value of the Charter of Fundamental Rights after Lisbon: The importance of being earnest’, analogising Oscar Wilde with the constitutional value of the Charter of Fundamental Rights. After an update on the status of fundamental rights under Lisbon, the sensitive issues were tackled. The fact that there was an undermining of the Charter’s constitutional impact was lamented, which hindered the consolidation of a European identity. This was due to excessive reliance on general principles of EU Law as opposed to the Charter in governing how citizens enjoy rights. It was argued that the Court of Justice of the European Union (CJEU) had to be earnest about their direction for the Charter before it could be clearly stated exactly what their intentions were. The perspective advanced was that there needed to be a new methodology for the application of human rights following the Lisbon Treaty, placing the Charter first, then the ECHR, and following that, general principles to aid in correct interpretation. This interesting methodology instigated a lively debate considering its merits and demerits leaving great food for thought as we then delved into a more technical topic.

 

The provisions and conditions regarding revoking national final administrative acts could be described as a niche area, certainly the thoughts of this author when reading the title of the second presentation, ‘National final administrative acts contrary to EU Law: A critical analysis of the Court of Justice’s case law’. The speaker considered the political relationship between remedies and behaviour of MS in complying with EU law. Though a topic clearly outside many of the attendees’ remit of knowledge, clarity in both delivery and content aided the audience in comprehending the specific topic separated into two parts, firstly aid (state and national aid) and then in regards to the free movement of persons. The presentation and discussion both centred round the stark difference in treatment concerning the treatment of both by the CJEU. Highlighted were the exceptional cases,[1] which seemed to be at odds with the prior line of reasoning. It was commendable to the speaker that though her topic was not widely understood before the day began, she certainly shed some light on the matter by the end of it. Ultimately again, the theme emerged of the divergence rife within the Union’s constitutional decisions. Her focus on this idea contextualised her area of expertise with that of the previous in term of the delicate balance required in both because of the EU’s constitutional nature.

 

The panel rounded off with a non-lawyer’s perspective on the hypocrisy in the EU’s motto in her take that it was more akin to being ‘United in diversity: the lesser of two evils’. As highlighted, to hear a fresh non-legal perspective of an idea of predominantly considered in the legal sphere was a welcome and indeed interesting debate. From a largely linguistic point of view, the notion of the diversity of languages and its consequences for the united Union was considered. The large number of both languages and cultures in the EU contribute to the difficulty in becoming such. This was due to the inherent connection between the two and the undesirability to have a lingua franca for the Union. It perpetuated the idea that there has been a failure to achieve equality, which means there is also legal certainty compromised. It seemed that there was an inevitable sphere of linguistic uncertainty. Again, identity was a key issue given that without an agreement as to one, there would constantly be a tension in the supranational order. Whilst there was significant criticism advanced as to the lack of a clear answer for why there is such hypocrisy and tension within the Union, it only served to emphasise again that this characteristic of the EU would be here to stay, and likely the source and subject of many a debate to come.

 

The second panel was an opportunity for one of the authors to dig deeper into a relevant debate, of which topics and presentations on offer didn’t disappoint. The EU has been epitomised in recent months as an unpredictable political playground. Solidarity and austerity are seen as two conflicting schools of thought, with a line being firmly drawn between the two. The solidarity of many countries has faltered under immense economic pressure. Germany’s resistance to guarantee funds to enable further bailouts and the UK’s proposed attempts at future renegotiations and referendums have spurred a culture of countries looking from the outside at the problems facing the EU from within. The term ‘austerity’ has become taboo to many EU citizens and only the most daring of us would ever utter these words in order to raise a debate. Luckily for us, the speakers were not worried by such a fear.

 

The first speaker was Luca Lionello, (Catholic University of Milan) with a presentation entitled ‘Austerity Measures, Shift of Sovereignty and Democratisation of European Institutions’. The title was intriguing given its boldness in tackling austerity and sovereignty in the same sentence. Aren’t these terms a modern day juxtaposition? The presentation dug deeper into the reality of austerity measures and the impact they have on country independence. He tackled the recent adoption of the Euro plus pact, the Six Pack and the Treaty on Fiscal Stability, as several EU members have adopted austerity measures to respect the new rules on fiscal integration. However, the question on everyone’s lips was; are these measures legitimate and can they solve anything? Luca raised three main points to question the legitimacy of the measures (1) as fiscal policy is a core competent of national sovereignty, the development of a strong European supervision on national budgets will probably oblige members states to reform their own constitution, (2) the new economic governance is managed by intergovernmental bodies that dont directly respond to the citizens in contradiction with the EU’s democratic principle and (3) the adoption of austerity measures under the new rules on fiscal integration has caused the violation in many member states of social and labour rights. The tone of the talk was hopeful that the way to remedy these illegitimacy’s was providing European institutions with the competence and the appropriate means to guarantee social protection of the EU according to the principle of subsidiary. However, with recent economic catastrophes, like that seen in Cyprus, it seems principle of subsidiarity may take a backseat on the EU agenda while we ride through the storm.

 

With subsidiarity at the forefront of the audiences mind, we were greeted by Pieter Van Cleynenbreugel, (University of Leuven) with a presentation entitled ‘Between Delegation and Attribution: Article 114 TFEU, Integrated Administration and the Constitutional Circumvention of the Meroni-judgement on the Establishment of new EU Regulatory Agencies’. The cynical tone of the speakers’ thoughts was presented by the notion that the Meroni judgment [2] is still repeatedly invoked to curb the regulatory powers of independent EU agencies. This powerful debate has been made even more relevant by the introduction of the institutional set up and decision-making powers of the new European Supervisory Authorities (ESA’s) in financial markets regulation. A decisional tug of war is ongoing at EU level between the Meroni delegation limits with the EU treaties’ competence attribution framework. It seems the EU has been rather inventive in delegating power as the incorporation allows it to partially circumvent traditional Meroni delegation limits and to re-qualify them as novel, thus enabling and restraining instruments governing the process of agency establishment in general rather than agency delegation in particular. After a discussion on the relevant case law and highlighting Articles 114 and 291 TFEU, the line of reasoning given by the EU was adamantly and persuasively criticised by the speaker, leaving many thinking, where do we go from here?

 

It was with bated breath that the audience waited for the last speaker on the Panel. Gianni Lo Schiavo (King’s College London) presented on ‘The European Financial Supervisors: A true constitutional challenge in the aftermath of the European Crisis’. This was clearly the hot topic of the panel with many audience members having prepared questions in advance for the speaker to answer. The speaker took a novel approach to his presentation and made a clear case for the introduction of the macroeconomic layer into the European economic constitution established by the Maastricht Treaty. The issues raised by the speaker covered not only the economic crisis but the underlying constitutional crisis as well.  Whilst the new European Financial Supervisors were shown to be important improvements, Gianni spent no time getting to the harsh questions of these entities. The first problem was the shaky ground that these entities seem to have been built upon. The new European delegated governance is being shaped, but it is unclear whether their role will be enhanced as standalone bodies. Secondly, and importantly, the discussion turned to sovereignty; how do these bodies relate to national authorities and their powers, could this indicate a real ‘top down’ process of market regulation and control? The presentation ended stressing the urgency of the need for clear answers of effectiveness and shared responsibilities.

 

Both panels presented papers that prove themselves in both relevance and content. They raised significant issues, but more importantly current issues, and like with any conference by the end both authors found themselves with more questions than they started with as to the future of the EU’s plans in many aspects, on their direction in future development on fundamental rights, identity and that ever tricky balance between sovereignty and supranationality, and on economic recovery and the agencies that could aid in its implementation.

[1] C-119/05 Lucchini [2007] ECR I-6199; C-249/11 Byankov [2012] judg of 4 Dec 2012, nyr.

[2] Case C-9/56 and 10/56, Meroni v High Authority [1958] ECR I-0133