European Law Review ISSN: December EL Rev

Transcription

1 European Law Review ISSN: December 2017 EL Rev Editorial Risk Sharing in the Eurozone: Not Just High Politics Articles Aligning Data Protection Rights with Competition Law Remedies? The GDPR Right to Data Portability Orla Lynskey The Autonomy of the EU (and of EU Law): Through the Kaleidoscope Marcus Klamert Precaution and Equivalence: The Critical Interplay in EU Biotech Foods Ludivine Petetin Cross-border Trainees and the Personal Scope of Labour Law: The Puzzle of National, EU and Private International Law Annika Rosin Analysis and Reflections Delvigne: A Multi-Levelled Political Citizenship Stephen Coutts James Elliott Construction: A New(ish) Approach to Judicial Review of Standardisation Arnaud Van Waeyenberge and David Restrepo Amariles Free Public Transport of Tallinn, Estonia: A Case to Justify (Reverse) Discrimination on the Basis of Residence Carri Ginter and Nele Parrest The Commission s Powers to Enforce the Law: And to Propose Changes to It Sir Philip Lowe Book Reviews EL Rev December 2017 Page 1 of 8

2 Editorial Risk Sharing in the Eurozone: Not Just High Politics Banking union; Deposit guarantee schemes; Economic and monetary union; EU law; Euromarkets; Eurozone; Financial markets; Risk; Unemployment benefits The structures of the eurozone are being discussed again at the highest level. In the aftermath of the French election, President Macron put forward bold visions for a more integrated economic and monetary union. 1 President Juncker responded in his State of the Union address, approving of the general thrust but also seeking to ensure that the Commission maintains a key role. 2 Chancellor Merkel has made encouraging noises. 3 Notions such as fiscal union, European finance minister, eurozone budget and Treasury, and European Monetary Fund are bandied around in earnest. The discussion is to be welcomed. Many of the basic ideas were already put forward years ago at the height of the crisis in the Commission blueprint for a deep and genuine economic and monetary union. 4 They have been reiterated in a number of high profile policy documents and reflection papers since. 5 What remains is putting more of them into action, and it is hoped that the political window of opportunity is at least partially open. However, it is important to maintain perspective. Arguably equally important developments for EMU are taking place at a lower level, somewhat removed from the limelight of high politics. First, the building of the European Banking Union has begun, but it is not yet complete. Two features are conspicuous in their absence. There is no fiscal backstop. While the EU has set up a mechanism for resolving troubled banks, the funds available may not be sufficient, given the size of the banking institutions. There is a need to ensure that the system has the capacity to respond even to major crises. Helpfully, the European Stability Mechanism could be brought to this role. 6 Further, there is no common deposit insurance. Banks still depend on the credibility of the scheme of their home country. This is not the case elsewhere in the world everywhere else the task has been allocated to or taken over by the federal level. 7 As a result, there is still an incentive to shift funds abroad in case of national economic trouble, potentially creating a modern equivalent of a classic bank run. The difficulty with deposit insurance has been the reluctance of countries with well-capitalised schemes to extend their guarantees to countries where banks have legacy problems. As with any system of insurance, cover cannot be extended to past events. Helpfully, the EU institutions, in particular the European Central Bank, are now taking action to clean up problems lurking in banks of countries such as Italy, 8 potentially answering the objections that Germany has been putting forward. Secondly, there is a need to develop the Capital Markets Union. 9 The financial services markets have re-fragmented as a result of the crisis. This needs to be reversed both for the 1 A. Rettman, Macron calls for powerful eurozone budget, available at [Accessed 13 November 2017]. 3 J. Brunsden and M. Khan, Merkel signals readiness to engage with Macron on EU reform, Financial Times, 29 September COM(2012) 777 final/2. 5 See e.g. The Five Presidents Report: Completing Europe's Economic and Monetary Union, available at [Accessed 13 November 2017]. 6 This is proposed e.g. in the Commission, Reflection Paper on the Deepening of the Economic and Monetary Union, p.20, available at [Accessed 13 November 2017]. 7 C. Allard et al, Lessons from the Crisis: Minimal Elements for a Fiscal Union in the Euro Area in C. Cottarelli and M. Guerguil, Designing a European Fiscal Union, 1st edn (Oxon and New York: Routledge, 2015), p ECB, ECB reinforces its NPL guidance for banks, available at /pr/date/2017/html/ssm.pr en.html [Accessed 13 November 2017]. 9 See generally N. Moloney, Capital Markets Union: Ever Closer Union for the EU Financial System? (2016) 41 E.L. Rev. 307, and on the state of play, Commission Communication on the Mid-Term Review of the Capital Markets Union Action Plan COM(2017) 292 final. EL Rev December 2017 Page 2 of 8

3 reasons of re-establishing the internal market but also to support the euro. It is true that unfettered capital flows can be destabilising. Loans to finance property speculation or consumption are often a bad idea, whether in a domestic or cross-border context. By contrast, equity investments emanating from the wealthier Member States to finance productive investments in the poorer ones offer opportunities both for catch-up growth and for risk diversification, fulfilling one of the original promises of EMU. Importantly, capital markets play a vital part in smoothing out economic trouble in countries such as the US and Germany. In fact, private risk sharing may be more important than fiscal transfers in helping out troubled states in federations. 10 Unfortunately it is here that Brexit may come to undermine what should be achieved. Before the referendum, the UK acted as a formidable advocate of capital markets integration. Now its input is missing and much of the attention is instead going towards dealing with the consequences of the British withdrawal. It is a distraction that the eurozone can ill afford. The different elements are connected. Private sector risk sharing is more likely to work and more credible if public risk sharing is also in place they are complements rather than substitutes. 11 Banking union and capital markets union support each other. 12 In other words, the eurozone reform should advance on a broad front. 13 There is no shortage of proposals. To my mind, the ones that do not simply channel money from one Member State to another but rather via the EU to individual Union citizens are the most promising. For example, a genuine European unemployment benefit scheme would involve protecting unemployed Europeans, not bailing out particular countries. 14 It could avoid some of the divisive and bitter disputes between debtor and creditor countries that we witnessed during the crisis. Over time it would end up benefiting all Member States, as their economic cycles wax and wane. Most importantly, it would answer the question where is Europe when it is needed the most? But regardless of the bigger picture, the lower profile work on the intricacies of non-performing loans and various elements of capital markets union, including matters such as reducing the costs of the IPOs of small and medium sized enterprises, eliminating preferential treatment of debt over equity for tax purposes, and harmonising insolvency regimes, 15 are just as important as bold constitutional initiatives with grand titles. [JS] 10 See Allard et al, Lessons from the Crisis in Cottarelli and Guerguil, Designing a European Fiscal Union (2015), p See Allard et al, Lessons from the Crisis in Cottarelli and Guerguil, Designing a European Fiscal Union (2015), p.239 and E. Farhi and I. Werning, Fiscal Unions, American Economic Review (forthcoming). 12 V. Constâncio, Synergies between banking union and capital markets union, available at [Accessed 13 November 2017]. 13 For a note of caution, see P. Leino and T. Saarenheimo, Sovereignty and Subordination: On the Limits of EU Economic Policy Co-ordination (2017) 42 E.L. Rev See generally M. Beblavý and K. Lenaerts, Feasibility and Added Value of a European Unemployment Benefits Scheme (CEPS, 2017) [Accessed 13 November 2017]. 15 See G. McCormack, Corporate Restructuring Law: A Second Chance for Europe? (2017) 42 E.L. Rev EL Rev December 2017 Page 3 of 8

4 Articles Aligning Data Protection Rights with Competition Law Remedies? The GDPR Right to Data Portability Orla Lynskey The General Data Protection Regulation (GDPR) introduces a right to data portability in the EU legal order. This novel right has no direct equivalent in EU Member States, or internationally. Data portability bears many of the trappings of a competition law remedy: it has the potential to reduce barriers to entry; to stimulate innovation; and, to lower switching costs for individuals. For this reason, the right to data portability is often attributed a competition-based rationale in addition to its data protection objective. Yet, as this article will demonstrate, the GDPR right to data portability can be differentiated from a competition law remedy in terms of both its scope and its objectives. These differences in terms of scope and normative logic can lead to conflicting interpretations and visions of the right to data portability. This article argues that in case of such conflict the interpretation of the GDPR right to data portability ought to be decoupled from the logic and constraints of competition law and instead viewed within its data protection context as an instrument for individual control over personal data. The Autonomy of the EU (and of EU Law): Through the Kaleidoscope Marcus Klamert Despite being invoked by the Court in landmark cases from Van Gend en Loos and Kadi to Pringle and Opinion 2/13, autonomy has remained an elusive concept in EU law. This article suggests that it is applied by the Court to make three distinct yet related claims; first about substantive and institutional independence of the EU and EU law; secondly about the systemic integrity of the EU legal order; and thirdly about the standards that need to be upheld in the EU as a constitutional legal order. As such, autonomy is shown to have different meanings and connotations besides policing the openness of EU law to other legal regimes. The ECJ s reasoning in developing autonomy is discussed against the background of its selfreferential reliance on the principles of loyalty and effectiveness, and of the theory on the nature of general principles in EU law more broadly. Precaution and Equivalence: The Critical Interplay in EU Biotech Foods Ludivine Petetin Scientific uncertainty surrounds biotech foods. To regulate such foods and to ensure consumer choice and safety, the EU has adopted a precautionary approach based on premarket authorisation and mandatory labelling. Despite these regulatory requirements, the controversial concept of substantial equivalence is still present within the existing regimes for GM and cloned foods. The concept uses a comparative analysis of conventional and biotech foods to assess their safety. If substantial equivalence is present, biotech foods are regulated in the same manner as conventional foods. The concept restricts consumer choice and calls into question the safety of such foods because it requires no specific mandatory labelling or traceability and only minimal premarket authorisation. The dynamic between substantial equivalence and the precautionary principle is problematic as the two concepts seem contradictory. This situation prevents the existence of an adequate and efficient regulatory environment for EU biotech foods regulation and undermines a comprehensive precautionary approach towards such foods and the EU food system in general. Cross-border Trainees and the Personal Scope of Labour Law: The Puzzle of National, EU and Private International Law Annika Rosin This article aims to answer the questions whether cross-border trainees fall within the personal scope of national labour laws and how the substantive law of the European Union (EU) and private international law (PIL) affect their classification as employees. It is argued that, despite the fulfilment of subordination criterion in national practice, trainees are not always regarded as employees. Their labour law status is determined on the basis of other criteria, which do not necessarily overlap with the indicia used by the European Court of Justice (ECJ) in their classification as workers. A cross-border trainee can be regarded as a worker and not as an employee and vice versa in the same arrangement. The worker EL Rev December 2017 Page 4 of 8

5 classification alone does not broaden national labour law protection to cross-border trainees. Nevertheless, the EU intervenes in the determination of the p ersonal scope of national labour laws through the PIL rules by securing the application of mandatory labour laws of the host country to cross-border trainees. Analysis and Reflections Delvigne: A Multi-Levelled Political Citizenship Stephen Coutts Delvigne is a remarkable judgment reflecting significant change but also continuity in the nature of Union citizenship. After an overview of the judgment this note explores that continuity and change. It is argued that in finding a right to vote in European Parliament elections directly linked to the status of Union citizenship, Delvigne develops the supranational and political dimensions to Union citizenship, moving beyond the ambiguity found in Eman and Sevinger and Spain v United Kingdom. In doing so it alters the nature of the European Parliament as a representative institution and makes creative use of the Charter of Fundamental Rights. However, in its treatment of the limitation of that right on the grounds of a criminal conviction, the Court underlines the enduring multi-levelled nature of Union citizenship, allowing supranational rights to be conditioned and limited by national interests and concerns. James Elliott Construction: A New(ish) Approach to Judicial Review of Standardisation Arnaud Van Waeyenberge and David Restrepo Amariles This article analyses the decision of the Court of Justice of the European Union in the James Elliot Construction case delivered on 27 October In its decision, the Court has for the first time affirmed its jurisdiction to interpret harmonised technical standards on a preliminary reference. In this contribution, we argue that the decision marks an important breakthrough in the evolution of EU law by recognizing harmonised technical standards as part of Union law. This opening offers new possibilities for litigating technical standards and assuring the centrality of the rule of law in the achievement of the internal market. The article concludes by analysing the implications of the decision in relation to the Meroni doctrine, the potential conflicts between the principle of free access to the acts of the Union and the protection of intellectual property, and the impact that greater litigation over harmonised technical standards may have on the caseload of the Court. Free Public Transport of Tallinn, Estonia: A Case to Justify (Reverse) Discrimination on the Basis of Residence Carri Ginter and Nele Parrest Since 2013 Tallinn, the capital of Estonia, has provided free public transportation to its registered residents to promote additional registrations in order to increase its tax revenue indirectly. The system is not conditional on the resident having made any contribution to the budget or actually physically being resident in Tallinn. The Court has not indicated that it would accept the right of local self-management as legitimation of indirect discrimination against moving EU citizens. Cases that have accepted the requirement of a connection between the society of the Member State and the recipient of a benefit, or public policy, public security or public health as legitimate aims for justification of different treatment do not seem to fit the context of Tallinn. Accordingly, the system is likely to be illegal under EU law. National constitutional law, however, accepts local self-management as a justification. This difference between determining what may constitute a justification under EU law and under national constitutional law may be a key factor in preventing a spillover of EU law to residence-based discrimination against own nationals. Reverse discrimination against own nationals (residents and non-residents of a particular local government) may thus, in certain circumstances, be justified. EL Rev December 2017 Page 5 of 8

6 The Commission s Powers to Enforce the Law: And to Propose Changes to It Sir Philip Lowe As in many other areas of European policy, the Commission s exclusive powers under the EU Treaty to ensure that national taxation policies respect State aid disciplines must be exercised in a way which does not infringe on the parallel rights of Member States governments under European law to determine their own fiscal policies. At the same time the Commission has an equal right under the Treaty to propose changes to EU taxation policy. The Member States, together with the European Parliament, decide on whether the Commission s proposals should be accepted and reflected in new legislation. The Commission can exercise these different powers of enforcement and legislative proposal concurrently to promote much needed policy change, but it needs to act carefully in full respect of democratic processes and individual rights. Book Reviews EL Rev December 2017 Page 6 of 8

7 Forthcoming in European Law Review Articles The Role of the European Central Bank in the Single Supervisory Mechanism: A New Paradigm for EU Governance Agnese Pizzolla The institutional design of the Single Supervisory Mechanism (SSM) has been strongly influenced by reliance on art.127(6) TFEU as legal basis for its establishment. By providing for the possibility to attribute specific supervisory tasks to the European Central Bank (ECB), art.127(6) directly affected the role of the ECB within the SSM, in particular with respect to the way in which it interacts with National Competent Authorities. When compared to the role of EU institutions in other models of governance the ECB in the European System of Central Banks and the Commission in the European Competition Network the organisational structure of the SSM appears to be characterised by a unique combination of elements of centralisation and decentralisation, which confirms the SSM as a new paradigm for EU governance. Full, Adequate and Commensurate Compensation for Damages under EU Law: A Challenge for National Courts? Katri Havu This article studies full, adequate and commensurate compensation in EU case law, especially in preliminary rulings by the European Court of Justice. These terms, meant to convey that damages liability for infringements of EU law should be sufficient, are open to interpretation and in practice gain meaning from other concepts such as recoverable damage. Aspects of the extent of reparation are obscure under EU law and relevant emphases of the functions of damages liability for example, is damages award underpinned by corrective justice or deterrence thinking are not always clear. National courts dealing with liability issues relating to breaches of EU law must combine EU and national law while evaluating what kind of liability is required. Whether the open nature of the relevant EU law is a problem is open to debate. From a broader perspective, the issue relates to balancing between harmonisation and divergence in the context of the private law effects of breaches of EU law. Requiring full or otherwise sufficient compensation should not be thought to lead to uniform liability across the Union without further clarification of central matters pertaining to, for instance, relevant damage and causal link. Digital Regulation: Designing a Supranational Legal Framework for the Platform Economy Michèle Finck This article examines digital data-driven platforms and their impact on contemporary regulatory paradigms. While these phenomena are increasingly proclaimed as paradigm altering in many respects, they remain relatively little understood, including in their regulatory dimension. Lawmakers around the globe, including the European Commission, are currently trying to make sense of these evolutions and determine how to regulate digital platforms. In its 2016 Communication on Online Platforms, the European Commission proposed various options for regulating the platform economy, including self-regulatory and co-regulatory models. The Commission s assumption that self-regulation or co-regulation can replace topdown legislative intervention in the platform economy forms the background of this article. The latter examines these three options and concludes that, given that command-and-control regulation as well as self-regulation raise significant problems in their application to the platform economy, co-regulation emerges as the most adequate option provided that certain conditions are met. EL Rev December 2017 Page 7 of 8

8 Analysis and Reflections EU Citizenship as a Constitutional Restraint on the EU s Multilevel Governance of Public Goods Ernst-Ulrich Petersmann This contribution suggests a republican interpretation of EU citizenship rights based on the following three propositions: first, the more globalisation transforms national into transnational public goods, the more democratic and republican constitutionalism require designing and implementing transnational public goods treaties as democratic law empowering citizens to invoke and enforce precise and unconditional multilevel market regulations and protection of public goods vis-à-vis multilevel governance institutions. Secondly, EU law, such as arts 2 and 9-12 TEU, requires EU institutions and Member States to protect constitutional, representative, participatory and deliberative democracy and limits all internal and external EU powers by fundamental rights and protection of public goods (res publica), EU citizens rightly challenge EU trade, investment and other treaties that privilege interest groups and undermine the constitutional contract of citizens as codified in the EU Charter of Fundamental Rights. Thirdly, just as common market and competition law inside and beyond the EU protects citizen-driven network governance and rights-based vigilance of EU citizens embedded into comprehensive protection of fundamental rights and a social market economy (art.3 TEU), EU institutions should respond to the legitimacy- and rule-of-law-crises in other areas of EU governance by re-connecting EU law with EU citizens as democratic principals of multilevel governance agents. Anti-citizen clauses in EU free trade agreements with non-european countries (like art.30.6 CETA) and discriminatory arbitration privileges for foreign investors illustrate authoritarian dis-connect of EU bureaucrats from EU citizens; they risk undermining rule of law, constitutional democracy, and the social market economy inside the EU. The Next Chapter in the Saga of Renewable Energy Support Schemes: Still a Certain Degree of Mystery after Essent Belgium II Sirja-Leena Penttinen This article analyses the latest chapter in the saga of renewable energy support schemes, namely Essent Belgium (C-492/14), which was handed down by the European Court of Justice at the end of September It assesses the judgment in the light of preceding judgments such as Ålands Vindkraft and Essent Belgium (in which the claimant was the same company as in the present case) delivered in 2014, which dealt with the conformity of renewable energy support schemes with the principle of free movement of goods. As is wellknown, the Court s case law on this topic has been as emphasised by Advocate General Bot rather confusing, to say the least. Therefore, this case note examines whether the recently delivered judgment clarifies the current state of play in any respect. The answer seems to be that it comes down to the principle of proportionality and in particular to the design of the support schemes. In addition to discussing the judgment, the article provides some reflections on the so-called Winter Package proposals on renewable energy. The Preliminaries of a Reference Graham Butler and Urška Šadl On 11 June 2015, the President of the First Chamber of the Court of Justice of the European Union (the Court) issued an order to delete Bogdan Chain v Atlanco Ltd (C-189/14) from the Registry. This comment and the reflection are thus not motivated by a judgment, but rather by the reasons why the Court, after an oral hearing held in the presence of the parties and eight intervening Member States, and after hearing the Advocate General, did not deliver one. The comment examines the legal framework, as well as the detailed procedural rules and guidelines that govern the co-operation of national courts in the preliminary reference procedure. It highlights the fact that preliminary references can only work when the preliminaries of a reference the culture of sincere co-operation and litigation, efficient communication and flexible procedural rules are in place. EL Rev December 2017 Page 8 of 8