New publication: H. v. Council et al. – A Minor Expansion of the CJEU’s Jurisdiction Over the CFSP

ep_ej_2016_2_coverI just published a brief case note in the European Papers’ European Forum on case C-455/14 P H v. Council et al. [2016]. That case is the latest in a line of recent cases that help clarify and, arguably, expand the CJEU’s jurisdiction over the Common Foreign and Security Policy.

The case note is available here.

European Papers is a new (2016) open-access e-journal. And it is not only a journal, but also a forum for discussions of critical discussions of European legal issues through short, peer-reviewed pieces (“Insights” and “Highlights”). See EuropeanPapers.eu for more information about the journal and the European Forum.

The EFTA Court discusses its own legitimacy

(Originally published on the PluriCourts blog.)

EFTAcourtJuly 26, 2016, the EFTA Court released a preliminary judgment in case E-28/15 Yankuba Jabbi v. Norway [2016]. The case concerned the free movement for persons under European Economic Area (EEA) law, specifically the derived rights of third-country nationals to free movement.

The subject-matter of the case may be of less interest to PluriCourts, however, in paragraph 71 the court discusses its own legitimacy. There the EFTA Court writes (emphasis added):

Without independence in its adjudication no court could claim legitimacy. Every court must exercise its jurisdiction based upon the relevant legal sources. An essential legal source for the Court is the case law of the ECJ and the General Court. That case law must nevertheless be read in its context. Normally, this does not pose particular problems because the context is the same. However, when it comes to the legal sources in this case, the ECJ has partly ruled out the application of the Directive and instead applied the concept of Union citizenship in evolution of the free movement of persons in the EU.”

It is understandable that the EFTA Court felt the need to emphasize the importance of basing its judgments on relevant legal sources, given the difficult legal questions that arose.* Moreover, this is only a couple of sentences, and “legitimacy” is mentioned only once.

Still, I cannot remember having seen a reference to the concept of legitimacy comparable to this from the EFTA Court in any other decision of an international court or tribunal. But perhaps the readers of this blog know of more examples? If so, please add a comment or send a tweet in my direction (@StianOby).


*For those interested in an overview of the details of the Jabbi case, and the legal issues concerning the free movement of persons in the EEA, I recommend this great blog post written by Karin Fløistad – my colleague and author of a just-submitted PhD thesis on the EEA agreement in a revised EU constitutional framework for welfare services.

Jurisdiction, legislation, and creative interpretations in the Opinion of AG Wathelet in C-72/15 Rosneft

The frequent legal challenges to the European Union’s economic sanctions regimes have resulted in several judgments chiseling out key issues of EU law. Case C-72/15 Rosneft, which will be decided in the coming months, provides the European Court of Justice (ECJ) yet another opportunity to do so. In particular, the Rosneft case invites the ECJ to clarify its jurisdiction and power of judicial review over decisions taken by the Council under the Common Foreign and Security Policy (CFSP) – in the context of a reference for preliminary ruling.

The recently-released Opinion of Advocate General Wathelet in the Rosneft case was therefore eagerly awaited, and in this blog post we will examine two aspects of it. First, we will discuss his conclusion that the ECJ has jurisdiction to review the legality of CFSP decisions by way of preliminary ruling. Second, we have some remarks on his rather swift and somewhat formalistic argument for why CFSP decisions can never be regarded as “legislative acts” – regardless of how they are formulated. Continue reading

The Bosphorus presumption is still alive and kicking: the case of Avotiņš v. Latvia

Judges of the Latvian Supreme Court

Judges of the Latvian Supreme Court

Yesterday, 23 May 2016, the Grand Chamber of the European Court of Human Rights (ECtHR) delivered its judgment in the case of Avotiņš v. Latvia. This seems to be the ECtHR’s first detailed appraisal of the so-called Bosphorus presumption after the Court of Justice of the European Union (CJEU) in Opinion 2/13 rejected a draft agreement providing for the accession of the EU to the European Convention of Human Rights (ECHR). It also provides a first glimpse of how the ECtHR views the EU law principle of mutual trust, which has become particularly dear to the CJEU over the last couple of years.

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A report from the oral hearing in Case C-72/15 (Rosneft)

Snow over the CJEU as it hears the Rosneft case.

Snow over the CJEU as it hears the Rosneft case.

This week I attended the hearing at the Court of Justice of the European Union (CJEU) in case C-71/15 (Rosneft). This is one of several cases brought by the Russian energy company Rosneft against the EU sanctions regime established following the Russian military intervention in Crimea. The case has its basis in a request for preliminary ruling by the High Court of Justice (England & Wales), Queen’s Bench Division. In the reference, the High Court of Justice asks the CJEU to determine the validity of several provisions of the EU economic sanctions against Russia.

As the legal issues in play in this case are very closely connected with the precise legal nature of the sanctions challenged, it is necessary to first describe the contested parts of the EU sanctions regime in some detail. Then I will go through the submissions of the parties, and offer some preliminary analysis of the arguments presented. My focus is the same as that of the oral hearing; on the issue of the jurisdiction of the CJEU to review sanctions adopted under the EU’s Common Foreign and Security Policy (CFSP). Before we start I must also add a small disclaimer: this report is based on my own notes and recollections, and there may thus be inaccuracies, misunderstandings, or plain errors.

The contested parts of the EU sanctions regime

The contested parts of the EU sanctions regime in this case are the measures “targeting sectoral cooperation and exchanges with Russia” – which I will refer to as the sectoral measures. These sectoral measures are laid down in Council decision 2014/512/CFSP and Council regulation 2014/833/EU (links to latest consolidated versions). Essentially, these provisions prohibit EU persons, natural or legal, from engaging in contractual relations with certain Russian state-owned companies and banks, and from providing such companies and banks access to financial markets.

Sectoral measures may be contrasted with the targeted sanctions laid down in Council decision 2014/145/CFSP and Council regulation 2014/269/EU (links to latest consolidated versions). Such targeted sanctions directly affect named Russian natural and legal persons (not including Rosneft) by inter alia obliging European financial institutions to freeze their assets. With regard to the sectoral measures, on the other hand, Rosneft primarily feels the sting of them through the lack of access to European suppliers, consultants, credit institutions, etc.

This distinction between targeted and sectoral sanctions is also reflected in TFEU article 215. According to that provision the Union may in the form of a regulation adopt measures providing for ” the interruption or reduction, in part or completely, of economic and financial relations with one or more third countries” (i.e. sectoral measures) or “restrictive measures […] against natural or legal persons” (i.e. targeted sanctions). Since sectoral measures are formulated as prohibitions on EU citizens and undertakings from engaging in such activities, they only seems to affect Rosneft indirectly; it is their EU partners that are now prohibited from doing business with Rosneft. Note the use of the word seems in the previous sentence. Rosneft argues that it is also directly affected by the sectoral measures, and that they should be regarded as targeted sanctions. Still, the following summary of the hearing more or less presupposes that the sanctions are sectoral measures – which was also generally presupposed during the hearing.

A final peculiarity concerning CFSP sanctions regimes is that they are enacted through the use of two separate legal instruments. First, by a Council decision under TEU article 29. Second, and following such a decision, the sanctions are implemented within the internal market by means of a Council regulation under just-mentioned TFEU article 215. In the present case the relevant instruments are Council decision 2014/512/CFSP and Council regulation 2014/833/EU, which I will refer to in the following as “the CFSP decision” and “the regulation”, respectively. The relationship between the regulation and the CFSP decision was a key factor in relation to many of the issues discussed during the oral hearing in Rosneft.

The CFSP decision is adopted under a provision in the CFSP chapter of the TEU, namely article 29. This has certain consequences. First, legislative acts are precluded under the CFSP, see TEU article 31(1) i.f. Second, being adopted under the CFSP chapter the jurisdiction of the CJEU to review the decision is generally excluded according to TFEU article 275(1). Third, while the EU member states “shall ensure that their national policies conform to” the CFSP decision, the decision is not binding upon persons (natural or legal).

The regulation adopted under TFEU article 215 implements the CFSP decision within the internal market. That regulation is not a CFSP measure. This means that it is binding in its entirety, also on natural or legal persons, and directly applicable within the legal system of the EU member states (TFEU article 288(2)). Moreover, the general jurisdiction of the CJEU to review acts of the Union institution should therefore apply. (But see the Commission’s arguments to the contrary discussed below.)

What kind of provisions the two instruments should contain when the Union imposes sanctions is less clear. The only guidance we seem to get from the constituent treaties is that (a) legislative acts cannot be enacted in the form of CFSP decisions, and that (b) when a CFSP decision “provides for the interruption or reduction, in part or completely, of economic and financial relations with one or more third countries” the Council shall adopt “the necessary measures” in the form of a regulation under TFEU article 215. In practice, the wording of the CFSP decision and the regulation is more or less identical. This is also the case here. The provisions Rosneft is challenging are almost word-for-word identical in the CFSP decision and the regulation.

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New paper: The Reinterpretation of TFEU Article 344 in Opinion 2/13 and Its Potential Consequences

My first proper journal article was just published in the German Law Journal, volume 16 (2015) no. 1. Here is the abstract:

On 18 December 2014 the Court of Justice of the European Union (CJEU) delivered Opinion 2/13, and stunned the legal world by declaring that the Draft Agreement on the Accession of the EU to the European Convention on Human Rights was incompatible with the constituent treaties of the Union. In this contribution note I will focus on only one aspect of Opinion 2/13: the CJEU’s interpretation and application of the TFEU article 344. Specifically, I will compare the approach taken in Opinion 2/13 with that of the CJEU’s earlier case-law. I will argue that the reasoning and conclusion concerning TFEU article 344 in Opinion 2/13 is clearly at odds with this earlier case-law, notably the leading MOX Plant case. I will also demonstrate how the approach to the issue in Opinion 2/13 – if it indeed reflects lex lata – seriously affects numerous treaties that have already been concluded by the Union.

German Law Journal is an online open access journal, so you can download the full contribution by following this link.

Opinion 2/13: A bag of coal from the CJEU

CJEU - Grand Hall of JusticeJust in time for Christmas, on 18 December 2014, the Court of Justice of the European Union (CJEU) handed down its Opinion 2/13 on the Union’s planned accession to the European Convention on Human Rights (ECHR). To the surprise of most, the CJEU found the draft agreement on the accession of the Union to the ECHR incompatible with the Union’s primary (read: constitutional) law.

Not only did the CJEU find the accession agreement incompatible with the Union’s constituent treaties. Its Opinion reads like a direct and unequivocal attack on the accession agreement and, as I will come back to, it seems to be very difficult to satisfy the CJEU’s objections by way of amending the accession agreement. Instead of the expected Christmas present of a signable accession agreement, the Court brought the negotiators a bag of coal.

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