European Law Review ISSN: October EL Rev

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1 Editorial Inter-institutional Disputes and Treaty-making European Law Review ISSN: EL Rev Articles EU International Agreements through a US Lens: Different Methods of Interpretation, Tests and the Issue of Rights Szilárd Gáspár-Szilágyi Cultural Mainstreaming: The European Union s Horizontal Cultural Diversity Agenda and its Evolution Evangelia Psychogiopoulou Reconstructing the Early Warning System on Subsidiarity: The Case for Political Judgment Marco Goldoni Diplomats at the Bar: The European External Action Service before EU Courts Mauro Gatti Analysis and Reflections Implementation of EU Law through Domestic Measures after Fransson: the Court of Justice Buys Time and Non-preclusion Troubles Loom Large Filippo Fontanelli Delimiting the Harmonisation Scope of the Unfair Commercial Practices Directive: Towards a Specific Competitive Intent Requirement? Comment on Anzeige Georgios Anagnostaras and Asteris Pliakos Private Enforcement of the EU Competition Rules: The Commission Wishes to Practise what it Preaches But Can it Do So? Comment on Otis Arianna Andreangeli Book Reviews EL Rev Page 1 of 5

2 Editorial Efficient, Fair and Fit for the Future? 1 Delay; EU law; EU legislative process; European Parliament; Treaties One of the more tangible changes introduced by the Lisbon Treaty has been the considerable strengthening of the position of the European Parliament in the Union s institutional structure. This has been acutely felt in the area of external relations where the Parliament has not shied away from flexing its newly found muscle. The episodes of the rejection of the original SWIFT Agreement and the renegotiation of the PNR Agreement between the EU and the United States, as well as the rejection of ACTA, have left no doubt as to the significance of the Parliament s status in the area. The recent judgment of the Court of Justice in European Parliament v Council 1 provides another reminder to that effect. This case was about the agreement between the EU and Mauritius on the transfer of individuals suspected of piracy at sea by EU personnel to the Mauritius authorities and the conditions that the latter ought to meet. The Agreement was concluded in the context of the anti-piracy operation Atalanta, which the Union has been carrying out off the coast of Somalia as part of its Common Security and Defence Policy. There were two main points raised by the Parliament in its action. The first was about the conclusion of the Agreement. As it was viewed by the Council to relate exclusively to the Common Foreign and Security Policy (CFSP), it was concluded, accordingly, under art.218(6) TFEU which did not provide for any input from the Parliament. However, the Parliament argued that, as the Agreement was about the transfer of suspected pirates with a view to their prosecution, it also related to judicial cooperation in criminal matters, police cooperation and development cooperation. Given that the ordinary legislative procedure applied to decisionmaking in these areas, the Parliament claimed that the Agreement should have been adopted under art.218(6)(a)(v) TFEU which provided for its consent. It is interesting that the Parliament should have chosen not to challenge the main nature of the Agreement. It accepted that the EU-Mauritius agreement was predominantly about CFSP. Instead, it was in the light of its incidental implications for the other non-cfsp policies that, in the Parliament s view, its consent was required. The Grand Chamber of the Court rejected this argument. It held that the decision-making procedure for the conclusion of international agreements in art.218 TFEU reflects the division of powers between institutions that applies internally. Therefore, the substantive legal basis of the decision concluding the agreement also determines the type of procedure applicable under art.218 TFEU. As the decision concluding the transfer Agreement with Mauritius had been adopted solely as a CFSP measure, the Agreement related exclusively to CFPS in the meaning of art.218(6) TFEU. Accordingly, the Parliament s consent was not required. The Court held that this symmetry between substantive legal basis and decision-making procedure was justified in the light of the principles of legal certainty and consistency. This conclusion is eminently sensible and entirely consistent with the logic of the choice of legal basis in general and art.218 TFEU in particular. Otherwise, there would be, in effect, no agreements which would be viewed as exclusively CFSP-related and there would be no exceptions from the Parliament s consent, the provision of Article 218(6) TFEU notwithstanding. The second issue in Parliament v Council (C-658/11) was the scope of the broader Parliament s input in treaty-making. Article 218(10) TFEU provides that the Parliament shall be immediately and fully informed at all stages of the procedure. The Council sent the Parliament the decision concluding the agreement with Mauritius more than three months after its adoption and the signing of the agreement, and 17 days after their publication. The 1 (C-658/11) June 24, EL Rev Page 2 of 5

3 Court held that the right of the Parliament to be informed under art.218(10) TFEU is an expression of the democratic principles on which the European Union is founded. 2 It pointed out that: If the Parliament is not immediately and fully informed at all stages of the procedure in accordance with Article 218(10) TFEU, including that preceding the conclusion of the agreement, it is not in a position to exercise the right of scrutiny which the Treaties have conferred on it in relation to the CFSP or, where appropriate, to make known its views as regards, in particular, the correct legal basis for the act concerned. The infringement of that information requirement impinges, in those circumstances, on the Parliament s performance of its duties in relation to the CFSP, and therefore constitutes an infringement of an essential procedural requirement. 3 It is staggering that the Council should have seriously argued that the time it had taken to inform the Parliament was reasonable. Be that as it may, this dispute illustrates that the institutional landscape as redrawn at Lisbon has not diminished the appetite of the relevant actors for turf wars. In fact, at the time of writing, there is another case pending where the Parliament challenged the adoption of the EU-Tanzania transfer agreement as an agreement which related exclusively to the CFSP and argued that it should have been adopted jointly under arts 37 TEU (CFSP), 82 TFEU (judicial cooperation in criminal matters) and 87 TFEU (police cooperation). 4 The process of treaty-making still provides fertile ground for inter-institutional skirmishes. By seeking to define clearer demarcation lines and to streamline decision-making within a more coherent legal framework, the Lisbon Treaty merely established a new terrain within which the Union s institutions are no less keen to protect their prerogatives than they were under the previous constitutional arrangements. [PK] 2 European Parliament v Council (C-658/11) at [81]. 3 European Parliament v Council (C-658/11) at [86]. 4 European Parliament v Council (C-263/14), pending. EL Rev Page 3 of 5

4 Articles EU International Agreements through a US Lens: Different Methods of Interpretation, Tests and the Issue of Rights Szilárd Gáspár-Szilágyi Inspired by the questions US courts and American scholarship ask when confronted with the domestic enforcement of international agreements, this article looks at the methods of interpretation and tests used by the Court of Justice of the European Union (CJEU) in its direct effect analysis of international agreements, which are binding on the European Union, as well as the issue of rights and its role in the direct effect analysis. It is argued that the current case law is split when it comes to the methods of interpretation and tests used in the direct effect analysis. Moreover, the CJEU s case law is not clear on whether a primary right or the right to seek a remedy needs to be conferred by international agreements, or whether a right should be conferred at all. Cultural Mainstreaming: The European Union s Horizontal Cultural Diversity Agenda and its Evolution Evangelia Psychogiopoulou This article explores how the European Union has been confronted with cultural mainstreaming, that is the integration of cultural considerations in EU law and policies pursuant to art.167(4) TFEU. The analysis addresses the nature and scope of the cultural mainstreaming requirements imposed on the Union, enquiring, inter alia, into the interpretation of art.167(4) TFEU by the EU Courts. It subsequently probes the degree of attention afforded to art.167(4) TFEU by the European institutions, revealing two distinct phases in the accommodation of cultural concerns in EU activity. The first phase, inaugurated with the signature of the Treaty establishing the European Community, is characterised by the absence of a comprehensive strategy devised to ensure that respect for and promotion of cultural diversity is incorporated as a horizontal policy concern in EU activity. The second phase, starting in May 2005 with the adoption of the European Commission s Communication A European agenda for culture in a globalizing world and the entry into force of the United Nations Educational, Scientific and Cultural Organisation (UNESCO) Convention on the protection and promotion of the diversity of cultural expressions, signals the launch of more structured EU cultural mainstreaming efforts. As will be shown, these denote varied understandings of the significance of cultural diversity for the European Union. Reconstructing the Early Warning System on Subsidiarity: The Case for Political Judgment Marco Goldoni The Early Warning System (EWS) has been understood as a device for two functions: enhancing the democratic quality of EU law-making and improving subsidiarity review. After having criticised the two most common interpretations of the EWS as a deliberative exercise or as an advisory mechanism, the article proposes to look at the function of the EWS from the perspective of European integration. In this way, a different light is shed on the role of national parliaments. It is suggested that, in light of three factors (legal, practical and political), national parliaments ought to apply the EWS in a political rather than strictly formal way and they should use the EWS for protecting the constitutional essentials of their domestic orders. Diplomats at the Bar: The European External Action Service before EU Courts Mauro Gatti The European External Action Service (EEAS) is a crucial innovation of the EU institutional architecture, but some of its legal aspects remain obscure. This article investigates a particularly understudied issue: the EEAS s capacity to be a party to proceedings before EU Courts. The analysis suggests, first, that the Service has standing before the EU judges with respect to administrative issues. At the same time, the EEAS is not autonomous for the purpose of policy management and it can encounter difficulty in bringing proceedings to protect its role in the legislative process. Secondly, the practice of Union bodies relating to the EEAS is inconsistent: EU organs constantly treat the Service as a de facto institution as far as administrative issues are concerned but they are unwilling to overtly recognise its autonomy. Despite these difficulties, the EEAS s capacity to stand before EU judges is likely to favour its affirmation as an autonomous political actor. EL Rev Page 4 of 5

5 Analysis and Reflections Implementation of EU Law through Domestic Measures after Fransson: the Court of Justice Buys Time and Non-preclusion Troubles Loom Large Filippo Fontanelli In 2014, the Court came to terms with the application of the Charter of Fundamental Rights to domestic measures in the wake of Fransson. The five cases discussed here provide an overview of the Court s subsequent interpretation of the implementation link between EU law and national measures, required for the Charter to apply. Arguably, the Court is playing by ear and eludes the real legal riddle: how to determine with certainty the application of EU law at large in a specific case. Because the application of the Charter depends on the application of EU law, this issue deserves more attention. In particular, the precise notion of the application of EU law could help to identify non-preclusion cases, i.e. those in which EU law applies to, but does not prohibit, domestic measures. Only in these cases does the Charter have added value as an autonomous standard of review. Delimiting the Harmonisation Scope of the Unfair Commercial Practices Directive: Towards a Specific Competitive Intent Requirement? Comment on Anzeige Georgios Anagnostaras and Asteris Pliakos Nine years after its adoption, the Unfair Commercial Practices Directive continues to give rise to controversy as concerns its scope of application and the national laws that are covered by its provisions. The recent Anzeige ruling suggests that the existence of a specific competitive intent is required in order to bring a commercial representation within the personal scope of the Directive. However, this essentially allows the national legislature to impose more restrictive requirements on advertising in the written media than those allowed by the Unfair Commercial Practices Directive s provisions. The ruling also seems to provide some interesting clarification on the relationship between the Directive and EU legislation on audiovisual media services, authorising in principle the imposition of more restrictive advertising obligations on national broadcasters based on the minimum harmonisation clause of the Audiovisual Media Services Directive. Private Enforcement of the EU Competition Rules: The Commission Wishes to Practise what it Preaches But Can it Do So? Comment on Otis Arianna Andreangeli Following the 2007 Commission decision on the Escalators and Elevators cartel, the EU Commission, on behalf of the European Union, lodged an action for competition damages, relying on its own infringement decision to prove that the defendant had breached art.101 TFEU. This case comment will consider whether the fact that the decision itself enjoyed binding legal effects on the domestic court as regards the finding of an infringement, according to art.16 of Council Regulation 1/2003, allowed the Commission to act as judge in its own cause. It will also examine whether the proceedings remained consistent with the principle of equality of arms, given the Commission s involvement as investigator. Book Reviews Tables Index EL Rev Page 5 of 5