European Law Review ISSN: April EL Rev

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1 European Law Review ISSN: EL Rev Editorial And those who look only to the past or the present are certain to miss the future Articles A Proportionate Response to Proportionality in the Field of Collective Action Catherine Barnard How Can the Problems of Exclusionary Abuses under Article 102 TFEU be resolved? John Temple Lang The TWD principle post-lisbon Roland Schwensfeier Analysis and Reflections Citizenship Rights and the Federal Balance between the European Union and its Member States: Comment on Dereci Stanislas Adam and Peter Van Elsuwege Les Jeux Sont Faits? Mutual Recognition and the Specificities of Online Gambling Georgios Anagnostaras Portability of Social Benefits and Reverse Discrimination of EU Citizens vis-à-vis Turkish Nationals: Comment on Akdas Katharina Eisele and Anne Pieter van der Mei Book Reviews EL Rev Page 1 of 5

2 Editorial And those who look only to the past or the present are certain to miss the future 1 Competence; EU law; Free movement of persons; Heads of state; Hungary; International law; Politics and law; Slovakia Attention has focused in recent months on the resolution of the eurozone crisis. It has needed to be. But political problems obviously persist beyond that narrative; at the time of writing, difficult conversations are taking place with Hungary about the organisation of its judicial system. Against that backdrop, A.G. Bot has delivered his Opinion in the action initiated by Hungary against Slovakia. 2 This dispute centres on an invitation issued by a Slovakian association to the President of Hungary, László Sólyom, to participate in a ceremony inaugurating a statue of Saint Stephen of Hungary on August 21, 2009 in Komárno, Slovakia. As A.G. Bot outlines, 21 August is a sensitive date in Slovakia, since 21 August 1968 was the date on which the Warsaw Pact troops, which included Hungarian troops, invaded Czechoslovakia. 3 Following a series of exchanges between the Hungarian and Slovakian embassies, the President of Slovakia, its Prime Minister and the President of its Parliament issued a joint declaration that characterised the proposed visit as inappropriate, noting that the Hungarian President did not intend to meet Slovak dignitaries and because of the sensitivity of the date. President Sólyom decided to proceed nonetheless; en route on August 21 he was informed that the Slovak authorities would refuse him entry to the territory for security reasons, inter alia on the basis of Directive 2004/38. 4 President Sólyom acknowledged receipt of this information at the border and refrained from entering Slovakia. The dispute continued over subsequent weeks. In October 2009, the Hungarian Prime Minister complained to President Barroso, requesting that the Commission explore the instigation of infringement proceedings against Slovakia under art.258 TFEU, on the grounds that President Sólyom s right to move freely within the territory of the Member States, under art.21 TFEU and Directive 2004/38, had been restricted unlawfully. The Commission response, in December 2009, steered the dispute towards international law, observing that the Member States reserve the right to control the access of a foreign Head of State to their territory, regardless of whether that Head of State is a Union citizen. 5 Hungary decided to pursue the action itself, under art.259 TFEU. Notwithstanding the sensitive nature of the circumstances, the arguments submitted centre on classic conflict of norms principles. Hungary asserts that Directive 2004/38 applies to all EU citizens without exception, since any intended exclusions would have been expressly codified; that there are no rules under international law regulating the entry of a Head of State into the territory of another state anyway; and that, even if such rules did exist, their application could not compromise the effectiveness of EU law. Hungary argues that privileges accorded to Heads of State to facilitate the performance of their duties are supplementary to, and cannot undermine, EU rights. It also points to the (very) narrow scope that States retain when derogating from free movement rights. Slovakia, on the other hand, supported by the Commission, points to customary international law and conventions to establish that the movement of Heads of State falls within the bounds of diplomatic relations, the regulation of which remains outwith EU competence. 6 1 John F. Kennedy addressing the Assembly Hall at Paulskirche, Frankfurt, June 25, Hungary v Slovak Republic (C-364/10) pending; Opinion of A.G. Bot delivered on March 6, Opinion of A.G. Bot at [4]. 4 Directive 2004/38 of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/7. 5 Opinion of A.G. Bot at [15]. The Commission also noted that it was not in a position to determine whether the visit was being made in an official or private capacity (a point disputed in the documentation attached to the complaint) and could not, therefore, determine whether Slovakia had failed to fulfil its obligations under EU law. 6 The Conventions on which Slovakia relies are noted in fn.7 of A.G. Bot s Opinion, including the Vienna Convention of April 18, 1961 on Diplomatic Relations. EL Rev Page 2 of 5

3 Directive 2004/38 does not, therefore, need to include express exclusions on this point since the issue never comes within its remit in the first place. Slovakia also notes difficult practical problems that could arise if international law was overlaid with EU law in this context. A.G. Bot, confirming that the material visit could not be construed as a purely private trip, has agreed that movement connected to the performance of duties of a Head of State is not governed by EU law but by diplomatic relations, which remains within the purview of the Member States, in accordance with international law. 7 To find otherwise would, in his view, extend the competence of the EU beyond the appropriate boundaries of conferral established by art.5(2) TEU. He emphasises the special character of the position of Heads of State representing, personifying and committing the State at international level. 8 But he suggests that a situation of persistent paralysis in diplomatic relations between the two Member States would be covered by EU law, drawing from the obligation of attaining the Union s objectives set down in art.4(3) TEU. 9 The usefulness, or otherwise, of law in resolving political disputes has been a running theme of EU discourse in recent months. On one level, this case raises the same point. The dynamic generation of EU law requires us mostly to track its shifting boundaries outwards. Reaching a line that EU law might not actually cross is more unusual, and often more jolting for that reason. These questions about the reach of law recall to some extent the balancing act effected by the Court in the 1990s, when it was asked to assess the extent to which EU law could address questions of gender (in)equality within Member State military employment structures. 10 Reflecting on the imprint of history also driving this dispute, when should law be used to shape and nudge the relations of the future? And when should it not, allowing organic processes of politics and societal change to get there first? After the bold rhetoric of cases like Kadi, 11 in which clear priority was given to the EU s articulation of fundamental rights in cases of conflict with international norms, should we conclude that, if A.G. Bot is correct, the right to move within the territory of the Member States is not a fundamental right of the same quality? This will feel right to some and disappoint others. It certainly reminds us that not all norms are equal. Does a cautious perspective suggest that those who look only to the past or the present are certain to miss the future? Or does it reveal a more nuanced and keener eye on the future than the tools of law alone can achieve? [NNS] 7 Opinion of A.G. Bot at [52]. 8 Opinion of A.G. Bot at [54]. 9 Opinion of A.G. Bot at [59] (emphasis added). 10 E.g. Sirdar v Secretary of State for Defence (C-273/97) [1999] E.C.R. I-7403; [1999] 3 C.M.L.R. 559; Kreil v Germany (C-285/98) [2000] E.C.R. I-69; [2002] 1 C.M.L.R. 36; and Dory v Germany (C-186/01) [2003] E.C.R. I-2479; [2003] 2 C.M.L.R Kadi v Council of the European Union (C-402/05 P) [2008] E.C.R. I-6351; [2008] 3 C.M.L.R. 41. EL Rev Page 3 of 5

4 Articles A Proportionate Response to Proportionality in the Field of Collective Action Catherine Barnard The well-known decisions in Viking and Laval sent out a strong message that the economic and social dimensions of the European Union are capable of reconciliation. Yet, for better or worse, the outcome of the cases is seen by many to prioritise the economic interests over those of the social. In Commission v Germany (occupational pensions), Advocate General Trstenjak articulated a more genuine synthesis between the economic and social dimensions of the European Union, relying on the principle of proportionality. Her approach may well have been inspired by German law principles. Drawing on comparative sources, this article considers whether proportionality is the appropriate tool to balance the economic with the social in the context of collective action, and what form that proportionality review might take. This question has become more pressing with the proposed Monti II Regulation which aims to address some of the issues arising from the Viking judgment. How Can the Problems of Exclusionary Abuses under Article 102 TFEU be resolved? John Temple Lang Normal competition, if a dominant company offers better bargains than its rivals, may result in the rivals leaving the market. So any concept of exclusionary abuse needs to distinguish between foreclosure due to legitimate competition and anti-competitive foreclosure. Any effects-based approach must identify anti-competitive effects. However, the Commission s Guidance on exclusionary abuses suggests no such test. The Court of Justice accepted the Commission s test of loyalty-inducing conduct. But that is ambiguous: customers may buy exclusively from the dominant company if it offers the best value. Article 102(b) TFEU, which prohibits limiting rivals possibilities, provides the test that is needed, without discouraging pro-competitive pricing. The TWD principle post-lisbon Roland Schwensfeier In its celebrated TWD judgment in 1994, the Court of Justice established one-way exclusivity between the action for annulment and the reference on validity. Subsequent case law and academic criticism further elaborated on this issue; have they clarified its constituent facts? In 2009, the Treaty of Lisbon expanded the standing of natural and legal persons to challenge certain measures of general application; does TWD apply to such measures too? Analysis and Reflections Citizenship Rights and the Federal Balance between the European Union and its Member States: Comment on Dereci Stanislas Adam and Peter Van Elsuwege With its judgment in the Dereci case, the European Court of Justice has clarified the implications of its judgments in Ruiz Zambrano and McCarthy for the application of EU citizenship rights in purely internal situations. By introducing strict criteria which harness the new jurisdiction test that national measures may not affect the genuine enjoyment of EU citizenship rights, the Court further narrows down the potential of its innovative reasoning in Ruiz Zambrano and preserves the Member States regulatory autonomy and core responsibilities for the protection of fundamental rights outside the scope of EU law. This contribution analyses the Dereci judgment in light of the complex balance of powers between the European Union and its Member States following the entry into force of the Lisbon Treaty and the Charter of Fundamental Rights. In practical terms, the judgment brings the issue of reverse discrimination to the fore once again, including the possibility and opportunity for the EU legislator to foster equal treatment of all EU citizens in the field of family reunification. EL Rev Page 4 of 5

5 Les Jeux Sont Faits? Mutual Recognition and the Specificities of Online Gambling Georgios Anagnostaras Online and land-based gambling activities merely constitute alternative marketing channels of the same unique market of gaming services. However, the particularities of online gambling are to be taken into account when assessing the scope of the restrictions imposed by national gaming laws and their suitability to pursue the legitimate objectives of consumer protection and public order maintenance. This is in essence the core of the recent preliminary rulings in Zeturf and Dickinger, on the legality of national legislation regulating the provision of horseracing betting services and the operation of internet casino games respectively. The rulings actually complement and interpret the earlier judicial pronouncements in Kulpa and Carmen Media, reconciling them with the more sectoral approach originally adopted in Schindler. At the same time, they confirm in the most categorical terms that online gaming services are automatically excluded from the application of the mutual recognition principle irrespective of the measure of monitoring and control to which they are already subject in the Member State where their operator is established. Portability of Social Benefits and Reverse Discrimination of EU Citizens vis-à-vis Turkish Nationals: Comment on Akdas Katharina Eisele and Anne Pieter van der Mei Akdas demonstrates that Turkish nationals may enjoy a right to export special non contributory benefits that EU citizens do not enjoy. One is thus faced with a situation of reverse discrimination. This conclusion may be politically controversial but, as the ruling indicates, neither the non-discrimination clause contained in art.9 of the 1963 EEC-Turkey Association Agreement nor art.59 of the Additional Protocol of 1970 precludes this comparatively disadvantageous treatment of EU citizens. The message of the Court is plain: if the outcome of Akdas is deemed undesirable, it is up to the EEC-Turkey Association Council to repair the legal situation. Book Reviews Tables Index For further information on our products and services, please visit EL Rev Page 5 of 5