European Law Review ISSN: April EL Rev

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1 Editorial The Constitutional Weight of Adjectives European Law Review ISSN: EL Rev Articles Taxing and Spending in the Euro Zone: Legal and Political Challenges Related to the Adoption of the Financial Transaction Tax Federico Fabbrini Oscillating between Embracing and Avoiding Bosphorus: The European Court of Human Rights on Member State Responsibility for Acts of International Organisations and the Case of the European Union Cedric Ryngaert Claims for Damages in EU Procurement and Effective Protection of Individual Rights Saulius Lukas Kalėda Of TRIPS and Traps: The Interpretative Jurisdiction of the Court of Justice of the European Union over Patent Law Angelos Dimopoulos and Petroula Vantsiouri Analysis and Reflections The Court of Justice, Legal Reasoning, and the Pringle Case Law as the Continuation of Politics by Other Means Gunnar Beck Shaping the New Architecture of the EU System of Judicial Remedies: Comment on Inuit Alexander Kornezov No Privatisation in the Service of Fair Competition? Article 345 TFEU and the EU Market- State balance after Essent Pieter Van Cleynenbreugel Book Reviews EL Rev Page 1 of 5

2 Editorial The Constitutional Weight of Adjectives Constitutional law; EU law; Interpretation; Judicial decision-making; Residence Two judgments delivered by the Court of Justice in March 2014 the rulings in Siragusa 2 and O 3 are set to make significant contributions to debates about the scope of the Charter of Fundamental Rights and EU citizenship law respectively. Building on Åkerberg Fransson and Melloni, 4 the decision in Siragusa further develops the narrative on when Member States are implementing Union law for the purposes of art.51(1) of the Charter, through demonstrating a sufficient connection between contested national legislation and relevant Union law. In O, the Court sharpened the conditions under which art.21 TFEU protects a Union citizen who has exercised free movement rights and has now returned to the State of which they are a national, introducing a concept of genuine residence. The implications of both judgments will unfold through further discussion; but it is worth reflecting on two preliminary questions at this stage: where did these tests actually come from, and what constitutional weight do they (therefore) carry? Article 51(1) of the Charter states that its provisions are addressed to the Member States when they are implementing Union law. Initial guidance on the reach of Union law in this respect was developed well before the Charter had binding legal effect; in fact, even before the Charter was drafted the decision in Annibaldi, for example, mentioned national measures that intended to implement a provision of [Union] law, but it also raised the relevance of other criteria such as the objectives pursued by those measures. 5 In a separate line of case law, the notion of sufficient connection was used to delineate hypothetical situations that, for that reason, fell outwith the scope of Union law altogether. 6 These two pods of jurisprudence were knitted together in Iida, 7 with the key principles then restated in Siragusa as follows: In order to determine whether national legislation involves the implementation of EU law for the purposes of Article 51 of the Charter, some of the points to be determined are whether that legislation is intended to implement a provision of EU law; the nature of that legislation and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and also whether there are specific rules of EU law on the matter or capable of affecting it In particular, the Court has found that fundamental EU rights could not be applied in relation to national legislation because the provisions of EU law in the subject area concerned did not impose any obligation on Member States with regard to the situation at issue in the main proceedings. 8 On the latter point, the Court cited its 1996 decision in Maurin, referring to paragraphs that again addressed the overarching question of when something falls within (or outwith) the scope of Union law. 9 1 The title is taken from S. Weatherill, The Court s Case Law on the Internal Market: A Circumloquacious Statement of the Result, Rather than a Reason for Arriving at It? in M. Adams, J. Meeusen, G. Straetmans, and H. de Waele (eds.), Judging Europe s Judges: The Legitimacy of the Case Law of the European Court of Justice Examined (Oxford: Hart Publishing, 2013) 87 at 91 92, 95 and Cruciano Siragusa v Regione Sicilia (C-206/13) March 14, O. v Minister voor Immigratie (C-456/12) March 12, Åklagaren v Hans Åkerberg Fransson (C-617/10) February 26, 2013; Stefano Melloni v Ministerio Fiscal (C-399/11) February 26, Annibaldi v Sindaco del Comune di Guidonia (C-309/96) [1997] E.C.R. I-7493 at [21] [23]. 6 E.g. concerning restrictions on the free movement of persons, see Moser v Land Baden-Württemberg (180/83) [1984] E.C.R. 2539; [1984] 3 C.M.L.R. 720 at [18] and Kremzow v Austria (C-299/95) [1997] E.C.R. I-2629; [1997] 3 C.M.L.R at [16]. 7 Iida v Stadt Ulm (C-40/11) [2013] 1 C.M.L.R. 47 at [77] [79]. 8 Siragusa at [25] [26], citing Annibaldi, Iida, and Ymeraga v Ministre du Travail (C-87/12) [2013] 3 C.M.L.R. 33 at [41]. 9 Criminal Proceedings against Maurin (C-144/95) [1996] E.C.R. I-2909 at [11] [12]. EL Rev Page 2 of 5

3 By contrast, the phrase genuine residence was mentioned briefly by A.G. Mischo in two Opinions on aspects of the free movement of Turkish workers, delivered a month apart in In O, however, the Court engages genuine residence in the following way: A Union citizen who exercises his rights under Article 6(1) of Directive 2004/38 does not intend to settle in the host Member State in a way which would be such as to create or strengthen family life in that Member State. Accordingly, the refusal to confer, when that citizen returns to his Member State of origin, a derived right of residence on members of his family who are third-country nationals will not deter such a citizen from exercising his rights under Article 6. On the other hand, an obstacle may be created where the Union citizen intends to exercise his rights under Article 7(1) of Directive 2004/38. Residence in the host Member State pursuant to and in conformity with the conditions set out in Article 7(1) of that directive is, in principle, evidence of settling there and therefore of the Union citizen s genuine residence in the host Member State and goes hand in hand with creating and strengthening family life in that Member State. 11 In contrast to the reasoning in Siragusa, the way in which genuine residence is introduced and applied here is not linked to any previous case law. Both judgments articulate distinctive tests shaped by distinctive adjectives to address vital questions about the scope of Union law. National judges will have to determine when connections are sufficient or when residence is genuine in future cases. At one level, the test applied in O is more straightforward, since it relies on a specific temporal criterion already applied in the relevant EU legislation. But the pronouncement style of the judgment raises questions about why the concept of genuineness is what truly distinguishes periods of residence of different duration; leading to further questions about whether genuineness is the best adjective to capture that distinction in the first place, since it appears nowhere in the relevant provisions of the Directive 12 ; and then, perhaps, questions about what was really informing the judicial construction of the limits intended by that particular choice of adjective; and so on. It is certainly interesting to ponder whether the national legislation at issue in Åkerberg Fransson would in fact pass the test of sufficient connection to Union law; Annibaldi was cited in connection with the jurisdiction of the Court in preliminary references, but the substantive criteria introduced in that judgment were not otherwise discussed. However, the methodology applied in Siragusa carries greater constitutional weight nonetheless because, there, the Court shows its work it traces the lineage of the sufficient connection test; and it brings together diverse cases that in fact share a common goal: establishing a framework that will help national judges to identify the appropriate boundaries between Union and national law. Weatherill writes that the Court has to draw lines: it chooses to draw them in understandable places most of the time. 13 Exposition of the processes, histories, and objectives that inform those choices is what makes them, ultimately, more convincing. [NNS] 10 A.G. Mischo s Opinions in Ergat v Stadt Ulm (C-329/97) [2000] E.C.R. I-1487 at [90] and Nazli v Stadt Nurnberg (C-340/97) [2000] E.C.R. I-957 at [68]. 11 O at [52] [53] (emphasis added); Directive 2004/38 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/ Genuine is used in the Directive in two other contexts: permanent residence (recital 18), and expulsion (recital 23, art.14(4)(b), art.27(2) and art.33(2)). Another dimension concerns the choice of adjective in English, which may not correspond to the French effectif or the Dutch daadwerkelijk, a point that merits further study. 13 Weatherill, The Court s Case Law on the Internal Market in Adams, Meeusen, Straetmans and de Waele (eds.), Judging Europe s Judges (2013) p.108. EL Rev Page 3 of 5

4 Articles Taxing and Spending in the Euro Zone: Legal and Political Challenges Related to the Adoption of the Financial Transaction Tax Federico Fabbrini The article examines the recent high-level policy proposals to establish a fiscal capacity for the euro zone and discusses the relationship between taxing and spending in the Economic and Monetary Union (EMU) by analysing the need and possibility to levy taxes at the supranational level to sustain this new fiscal capacity. To this end, the article focuses on the pending legislation for the introduction of a Financial Transaction Tax (FTT) and considers the legality of resorting to enhanced cooperation to adopt a FTT among a sub-group of euro zone countries. While the use of enhanced cooperation in the area of FTT has been the object of recent challenges, the article discards these concerns and argues that the adoption of an FTT through enhanced cooperation is consistent with the constitutional function of this instrument, complies with the principles of the internal market and does not affect the rights of nonparticipating Member States so it is legal. However, the article suggests that the use of enhanced cooperation to enact an FTT meets several political challenges, precisely because of the connection between taxing and spending in the euro zone. Since only 11 Member States have agreed to levy an FTT, it appears difficult to appropriate the revenues of the FTT for the benefit of a common euro zone budget. In the end, the establishment of a fiscal capacity for the euro zone requires further institutional reforms in the architecture of the EMU aimed at ensuring a more effective and legitimate decision-making process in fiscal affairs. Oscillating between Embracing and Avoiding Bosphorus: The European Court of Human Rights on Member State Responsibility for Acts of International Organisations and the Case of the European Union Cedric Ryngaert In 2011 and 2012, the European Court of Human Rights bolstered its case law concerning contracting parties responsibility under the ECHR for acts of international organisations of which they are Member States, with the Court rendering decisions on responsibility with respect to CJEU preliminary rulings, UN sanctions, EU asylum regulations, and ICC defence witnesses. At first sight, these decisions, although partly based on the Court s Bosphorus decision (2005), appear to lack principled guidance. On closer inspection, however, what unites these cases is that the Court is generally reluctant to be drawn into second-guessing the human rights adequacy of the internal procedures of international organisations. It does so by finding no State action, by finding State discretion, or by simply accepting the organisation s internal procedures as adequate. Claims for Damages in EU Procurement and Effective Protection of Individual Rights Saulius Lukas Kalėda The case law of the EU Courts gives few examples of effective awards of damages in relation to procurement by the EU institutions. This is mainly due to the strict approach followed by the courts with regard to the condition of actual and certain damage. Unsuccessful tenderers cannot obtain compensation for the loss of income related to a public contract unless they establish that they would be entitled to the award of the contract. This approach is evolving in line with the development of the case law related to the loss of chance. In the context of interim measures, the General Court has departed from its earlier case law which denied the possibility of compensating for damage resulting from the loss of the chance to obtain a public contract. That change in reasoning has been accepted in recent cases relating to the substance of the damages claims. Since the liability of the Union and that of the Member States for breaches of EU law are governed by the same conditions, the approach taken by the EU Courts in relation to the liability of the EU institutions might serve as guidance for comparable claims resulting from breaches of national rules implementing the EU public procurement directives. Of TRIPS and Traps: The Interpretative Jurisdiction of the Court of Justice of the European Union over Patent Law Angelos Dimopoulos and Petroula Vantsiouri This article argues that, despite the setup of the newly devised European patent system, the CJEU can play a significant role in patent litigation in the European Union because of the EL Rev Page 4 of 5

5 interpretative jurisdiction that it has acquired over TRIPS in the post-lisbon era. Following the judgment in Daiichi Sankyo, it examines first the Court s jurisprudence on the direct effect and interpretation of the substantive patent provisions of the TRIPS Agreement in the pre- and post-lisbon era, explaining why EU exclusive competence under art.207 TFEU requires the CJEU to interpret the patent provisions of the TRIPS Agreement. Secondly, it looks into the implications of a CJEU interpretative jurisdiction over TRIPS on the development of uniform EU patent rules in light of the establishment of the Unified Patent Court and the EU Patent with Unitary Effect. It concludes that the CJEU can play a key role in safeguarding coherence and consistency in the application of the different regimes of patent protection in the European Union. Analysis and Reflections The Court of Justice, Legal Reasoning, and the Pringle Case Law as the Continuation of Politics by Other Means Gunnar Beck The Court of Justice commonly adopts a cumulative approach to interpretative argumentation, which fuses teleology, systemic arguments and principles with textual arguments and judicial precedents. In one sense, the Court s cumulative approach shares many features with the approach of national constitutional courts. In another, it has an inbuilt integrationist tendency, but also leaves for itself the discretion to adjust its decisions in the light of political sensitivities of the Member States so-called hard cases and the collective interests of the EU institutions. In its Pringle judgment, which confirms the legality of the European Stability Mechanism (ESM), the Court carries this cumulative approach to extremes. It fuses together, at times implausibly, literal, meta-teleological and contextual arguments to construct a justification for the legality of the ESM that sits uneasily with the no bail-out principle of the TFEU and the ESM Treaty itself, and the text of almost all the relevant Treaty provisions on economic and monetary union. Shaping the New Architecture of the EU System of Judicial Remedies: Comment on Inuit Alexander Kornezov The much-awaited judgment in the Inuit case is critical for the application of the new standing conditions for private parties in actions for annulment. The Court defined the crucial concept of regulatory act within the meaning of the third limb of art.263(4) TFEU as an act of general application other than a legislative act. The repercussions of this definition go, however, far beyond the revised locus standi rules applicable to private parties in actions for annulment. Critically, it has a direct bearing upon the right to effective judicial protection and, hence, upon the completeness of the EU system of judicial remedies. Pre-Lisbon, the latter was widely criticised for being prone to gaps. In Inuit, the Court relied upon the new art.19(1) TEU in order to demonstrate that the EU system of judicial remedies has now been rendered complete. This article will assess whether the system s post-lisbon architecture has filled the gaps concerning the judicial protection of the individual. No Privatisation in the Service of Fair Competition? Article 345 TFEU and the EU Market-State balance after Essent Pieter Van Cleynenbreugel Building upon EU law obligations to open national electricity markets for competition, the Netherlands specifically prohibited private companies from maintaining or acquiring ownership entitlements in electricity distribution networks. In Essent, the Court of Justice held that, despite art.345 TFEU proclaiming that the Treaties remain neutral regarding Member States property ownership systems, EU internal market provisions impose limits on particular ownership choices made in that respect. This comment conceptualises those limits as building blocks for an EU constitutional playing field in which Member States art.345 TFEU choices directly contribute to striking a refined balance between State and market. Book Reviews Tables Index EL Rev Page 5 of 5