EUROPEAN LAW REVIEW *657829* ARTICLES Unity and Diversity of European Fundamental Rights Protection Johannes Masing

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1 ARTICLES Unity and Diversity of European Fundamental Rights Protection Johannes Masing Standardisation in Services European Ambitions and Sectoral Realities EDITORS: Panos Koutrakos and Jukka Snell CONSULTANT EDITOR: Anthony Arnull BOOK REVIEWS EDITOR: Alicia Hinarejos Panagiotis Delimatsis Enhancing Energy Security in the EU: Pathways to Reduce Europe s Dependence on Russian Gas Imports Tom Dyson and Theodore Konstadinides ANALYSIS AND REFLECTIONS Kirchberg Dispensing the Punishment: Inflicting Civil Death on Prisoners in Onuekwere (C-378/12) and MG (C-400/12) Uladzislau Belavusau and Dimitry Kochenov Gazprom OAO v Lietuvos Republika: A Victory for Arbitration? Eva Storskrubb The Behaviour of the Average Consumer: A Little Less Normativity and a Little More Reality in the Court s Case Law? Reflections on Teekanne Hanna Schebesta and Kai Purnhagen Preliminary References to the Court of Justice of the EU and the Right to a Fair Trial under Article 6 ECHR Morten Broberg and Niels Fenger BOOK REVIEWS Copies of articles from the European Law Review, and other articles, cases and related materials, can be obtained from DocDel at Sweet & Maxwell s Yorkshire office. Current rates are: copyright charge + VAT per item for orders by post and DX. Fax delivery is guaranteed within 15 minutes of request and is charged at an additional 1.25 per page ( 2.35 per page outside the UK). EUROPEAN LAW REVIEW VOLUME 41 NO.4 AUGUST 2016 VOLUME 41 NO.4 AUGUST 2016 EUROPEAN LAW REVIEW EDITORIAL Brexit: The Age of Uncertainty BREXIT: WHAT NEXT? Brexit: A Drama in Six Acts Paul Craig After the Deluge Alan Dashwood Near-Membership, Partial Membership and the EU Constitution Bruno De Witte Broken Bats Anthony Arnull Negotiating International Trade Treaties after Brexit Panos Koutrakos Brexit and the Euro Area Alicia Hinarejos For full details, and how to order, please contact DocDel on Tel: Fax: trluki.admincentral@thomsonreuters.com. Go to: Please note that all other enquiries should be directed to Sweet & Maxwell, Friars House, 160 Blackfriars Road, London, SE1 8EZ. Tel: Fax: *657829* While Europe s eye is Fix d on Mighty Things : Implications of the Brexit Vote for Scotland David Edward and Niamh Nic Shuibhne The Practicalities of Leaving the EU Catherine Barnard Brexit, Voice and Loyalty: Reflections on Article 50 TEU Dora Kostakopoulou

2 EUROPEAN LAW REVIEW THE EUROPEAN LAW REVIEW is the principal English-language journal covering the law relating to European integration and the Council of Europe. While preserving the highest academic standards, the Review also caters for the needs of those involved in the practice and administration of the law. It carries authoritative and thought-provoking articles on all aspects of European law and incisive commentaries on current developments in its field. Editors: Consultant Editor: Book Reviews Editor: Panos Koutrakos and Jukka Snell Anthony Arnull Alicia Hinarejos Guide for Contributors 1. Please follow these guidelines when submitting material to the journal. It will avoid delays in acceptance of your material. 2. All contributions must be in English. Copyright in all contributions remains with the contributors. The publishers acquire the right to publish accepted contributions both in hard-copy and in electronic form. 3. 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A more detailed guide to writing for the journal, including advice on levels of heading, is available on the Sweet & Maxwell website Editorial Board: Contributions: Books for Review: Fabian Amtenbrink, Nicolas Bratza, Marise Cremona, Alan Dashwood, Laurence Gormley, Trevor Hartley, Francis Jacobs, Koen Lenaerts, Niamh Nic Shuibhne, Konrad Schiemann, Josephine Shaw, Erika Szyszczak, Verica Trstenjak, Christopher Vajda QC, Stephen Weatherill. Potential contributors should refer to the Guide for Contributors which appears on the inside back cover. These should be sent to Dr Alicia Hinarejos, Downing College, Cambridge CB2 1DQ. The Review should be cited as follows: (2016) 41 E.L. Rev. [page references] For further information on our products and services, please visit Citations and Abbreviations to be used Citing Treaty provisions following entry into force of the Treaty of Lisbon on December 1, Where a provision is new Where a provision has been substantially amended Where a provision has been left essentially unchanged Where a provision has been repealed Provisions of the EAEC Treaty Submitting material Articles should be sent to: Professor Panos Koutrakos Professor of European Union Law City Law School 4 Gray s Inn Place London WC1R 5DX Tel: +44 (0) Panos.Koutrakos.1@city.ac.uk. art.10 TEU art.2 TFEU art.24 (ex 11, as amended) TEU or, if the context requires, art.11 (now as amended 24 TEU) art.16 TFEU (ex 286 EC, as amended) or, if the context requires, art.286 EC (now as amended 16 TFEU) art.3 (ex 2) TEU or, if the context requires, art.2 (now 3 TEU) art.32 TFEU (ex 27 EC) or, if the context requires, art.27 EC (now 32 TFEU) art.3 TEU (repealed) or art.3 TEU (repealed at Lisbon), as appropriate art.293 EC (repealed) or art.293 EC (repealed at Lisbon), as appropriate art.3 Euratom. Cases reported prior to January 1, 2012 should be cited using the E.C.R. and, where possible, C.M.L.R. citations, e.g. Societe d Importation Edouard Leclerc-Siplec v TF1 Publicite SA (C-412/93) [1995] E.C.R. I-179; [1995] 3 C.M.L.R. 422 Tiercé Ladbroke v Commission (T-504/93) [1997] E.C.R. II-923; [1997] 5 C.M.L.R Cases reported on or after January 1, 2012 should be cited using the ECLI and, where possible, C.M.L.R. citations, e.g. Z v A Government Department (C-363/12) EU:C:2014:159; [2014] 3 C.M.L.R. 20. Unreported cases should be cited using the date of the judgment. References to the Official Journal should be given as follows: [2001] OJ L1/1 or [2001] OJ C1/1. Contributions to Analysis and Reflections should be sent to: Professor Jukka Snell Faculty of Law University of Turku Caloniankuja Turun yliopisto Finland Tel: +358 (0) jukka.snell@utu.fi. Queries concerning book reviews should be sent to: Dr Alicia Hinarejos Downing College Cambridge CB2 1DQ ah428@cam.ac.uk

3 European Law Review Table of Contents Issue 4 August 2016 Editorial Brexit: The Age of Uncertainty 445 Brexit: What Next? Brexit: A Drama in Six Acts Paul Craig 447 After the Deluge Alan Dashwood 469 Near-Membership, Partial Membership and the EU Constitution Bruno De Witte 471 Broken Bats Anthony Arnull 473 Negotiating International Trade Treaties after Brexit Panos Koutrakos 475 Brexit and the Euro Area Alicia Hinarejos 479 While Europe s eye is Fix d on Mighty Things : Implications of the Brexit Vote for Scotland David Edward and Niamh Nic Shuibhne 481 The Practicalities of Leaving the EU Catherine Barnard 484 Brexit, Voice and Loyalty: Reflections on Article 50 TEU Dora Kostakopoulou 487 Articles Unity and Diversity of European Fundamental Rights Protection Johannes Masing 490 Standardisation in Services European Ambitions and Sectoral Realities Panagiotis Delimatsis 513 Enhancing Energy Security in the EU: Pathways to Reduce Europe s Dependence on Russian Gas Imports Tom Dyson and Theodore Konstadinides 535

4 Analysis and Reflections Kirchberg Dispensing the Punishment: Inflicting Civil Death on Prisoners in Onuekwere (C-378/12) and MG (C-400/12) Uladzislau Belavusau and Dimitry Kochenov 557 Gazprom OAO v Lietuvos Republika: A Victory for Arbitration? Eva Storskrubb 578 The Behaviour of the Average Consumer: A Little Less Normativity and a Little More Reality in the Court s Case Law? Reflections on Teekanne Hanna Schebesta and Kai Purnhagen 590 Preliminary References to the Court of Justice of the EU and the Right to a Fair Trial under Article 6 ECHR Morten Broberg and Niels Fenger 599 Book Reviews 608

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6 Editorial Brexit: The Age of Uncertainty Common policies; European Union; Jurisprudence; United Kingdom; Withdrawal Following the UK referendum to withdraw from the Union, the European integration project has been thrown into uncertainty. This is the result of both the short-term difficulties in managing the divorce and the longer term consequences the UK s departure will have. Any aura of inevitability that integration may once have carried has dissipated. In the short term, we will have to decide how art.50 TEU is to be applied. This will not be easy the provision leaves many questions unanswered and its interaction with domestic law may prove complex. The first relates to the notice of withdrawal that starts the formal process. There must be sufficient time for the national constitutional processes to be completed and it might in any event be sensible for informal discussions to take place before the two-year period prescribed by art.50 begins to run. But what happens if the notice is not forthcoming? It is going to be exceedingly difficult to manage a Union where one member has decided to leave, so the EU has an interest in getting the exit over and done with, and a lengthy delay for tactical purposes is surely against the spirit of the provision and the Treaty. Secondly, will a withdrawal agreement suffice, or will a second treaty be needed to establish the UK s relationship with the EU following the exit, probably necessitating unanimity among the 27 and national ratifications, which in turn may involve referenda? This depends on what the UK actually wants, apart from withdrawal, which is not clear at the moment. Thirdly, what will the position of the UK be in EU decision-making during the withdrawal process? Will it continue to negotiate and vote on regulations and directives that will never apply to it? The primary tool for managing these questions is the trusty old principle of sincere co-operation, which will undoubtedly be stretched to the maximum. Fourthly, what happens to the vested or acquired rights, for example the rights of those who have relied on EU rules to move and reside in the UK, or vice versa? What kind of agreement will be reached, and what happens if there is no agreement what protection, if any, can be derived from art.8 ECHR, assuming the UK continues as a member of the Council of Europe in the long term, or perhaps from art.70 of the 1969 Vienna Convention on the Law of the Treaties or customary international law? There is a danger that the legal situation for many becomes precarious in the extreme. Fifthly, will the UK abide by all its EU obligations during the withdrawal process, or will it seek to impose restrictions, for example on immigration or on the reach of the Court of Justice? If it does, how could the EU respond might art.7 TEU be invoked? Sixthly, how would the Treaty rules and the UK devolution interact, for example if Scotland were to decide to remain a member of the EU? Finally, what if the notice of withdrawal has been served, but the UK constitutional requirements are no longer met, for example if a new Parliament decides the UK should continue as a Member State after all? Quite apart from the shorter term difficulties highlighted above, there are greater uncertainties looming over the integration project as a whole. At least three very different scenarios can be discerned. The first can be called integration enhanced. Here the assumption is that some of the leading Member States will wish to rally the herd and demonstrate that integration is still going strong by launching new initiatives, perhaps in particular in the field of security, 1 where the cleavages might not be as great as in the further development of the eurozone and where much could be done without Treaty change. Further, it could be argued that the UK has at times acted as a powerful opponent of integration, and its absence might serve 1 The importance of German White Paper on defence has been highlighted in this context, see A. Barker and S. Wagstyl, Germany to push for progress towards European army, Financial Times, 1 May

7 446 European Law Review to facilitate progress. 2 The second possible scenario could be called integration destabilised. Under this scenario, Germany begins to be viewed as an ever more hegemonic actor in the absence of the UK. Other Member States may come to form alliances designed to balance its influence. 3 It is an age old fear in Germany, where in the 19th century Bismarck spoke of the nightmare of coalitions 4 and, arguably, this kind of thinking influenced some German decision makers in the run up to the Maastricht Treaty and the acceptance of the EMU. The third scenario is disintegration. Here the political virus spreads and referenda are organised in other countries as well. An increasing number of ugly terms with the word exit at the end will be coined. In the context of integration we have seen this phenomenon, for example prior to the demise of the Constitutional Treaty, where the promise of a referendum in the UK is thought to have pushed France to offer a referendum as well. The scenarios are very different but not mutually exclusive more than one could unfold at the same time but a common theme is the existential uncertainty that is associated with all of them. Unfortunately much of the EU s attention is going to be directed at managing the short term issues and uncertainties the capacity to address the long terms ones may prove to be lacking. However, on a practical level there is one blessing: at least the UK has not adopted the euro. Whatever the uncertainties and difficulties that surround the exit of the UK, they pale into insignificance when compared to the trouble that the departure of a euro country would entail. 5 This might also act as a check on any tendency towards disintegration among the eurozone countries. The withdrawal and the establishment of a new relationship between the UK and the EU will take some time and will not affect the mission of European Law Review. The need for authoritative and thought-provoking articles on all aspects of European law and incisive commentaries on current developments will only grow, and we will continue to do our utmost to supply them. We hope this is already on display in this issue where, in addition to the regular content, the members of the editorial team and a number of other leading academics have come together to offer the first reactions to Brexit. [JS] 2 P. De Grauwe, Why the European Union Will Benefit from Brexit, -the-european-union-will-benefit-from-brexit/ [Accessed 3 August 2016]. See I. Bond et al, Europe after Brexit: Unleashed or undone? (Center for European Reform, 2016, available at /policy-brief/2016/europe-after-brexit-unleashed-or-undone [Accessed 3 August 2016]) for a detailed sectoral analysis. 3 See e.g. F. Heisbourg, Brexit spells disaster for France Financial Times, 24 June O. von Bismarck, Gedanken und Erinnerungen (Stuttgart: Verlag der J.G. Cotta schen Buchhandlung Nachfolger, 1898), Vol.2, p See e.g. F. Papadia, Operational Aspects of a Hypothetical Demise of the Euro (2014) 52 J.C.M.S

8 Brexit: What Next? Brexit: A Drama in Six Acts Paul Craig * University of Oxford European Union; Prime Minister; Referendums; United Kingdom; Withdrawal Abstract The referendum concerning the UK s membership of the EU took place on 23 June 2016, resulting in a majority voting to leave the EU. This article traces developments in this area in six stages. It begins with an explanation of why the Prime Minister promised a referendum in 2013; this is followed by the significance of the balance of competence review conducted by the coalition government; the focus then shifts to the PM s renegotiation with the EU after his electoral success in 2015; there is then discussion of the issues that shaped the referendum debate; the final two parts address respectively the political and legal fall-out from the referendum. Introduction Brexit was drama and dramatic in equal measure. The referendum was initially promised on 23 January 2013 and took place on 23 June In the intervening years the issue remained largely in the political background, casting the occasional shadow, but rarely if ever dominating debate outside a self-selected group of Conservative Eurosceptics. This was unsurprising given that the EU consistently registered low on the issues felt to be important by voters, barely ever coming above seven or eight in this regard. 1 It was also unsurprising even within the Westminster village, since truth to tell it was not clear that the Prime Minister would have to honour the promise. This would only be so if he won an outright victory at the 2015 election. The opinion polls indicated a hung parliament where coalition government would be the order of the day, thereby allowing uncomfortable promises to be kicked into the political long grass. Matters turned out rather differently. David Cameron delivered the outright victory that had not been predicted and basked briefly in the glow of praise that attends such gladiatorial contests. It was to be short lived. The Conservative Eurosceptics left the Prime Minister in no doubt that his promise would indeed have to be kept. They pressed him to name the day, hoping that it would lead not to connubial bliss, but to the break-up of a union. The issue that had simmered on the political back burner assumed centre stage, and the run-up to the referendum saw ever more heated debate. The Leave camp won, and their principal protagonists set a new record for resiling from more promises in a shorter period of time than anyone could recall. Those who favoured Remain sincerely hope that all the rest is not just history. This article charts the course of Brexit from the Bloomberg speech through to the referendum and beyond. It takes the drama that was Brexit and uses it to structure the subsequent analysis. Being cognisant of place and time, and the fact that it is 400 years since the death of Shakespeare, the ensuing discussion * Professor of Law, St John s College. Earlier versions of this lecture were given in Utrecht and Copenhagen prior to the referendum. I am grateful for the comments received from Alison Young and the editors. 1 Concerns about immigration featured higher; see /3447/Economy-immigration-and-healthcare-are-Britons-top-three-issues-deciding-general-election-vote.aspx [Accessed 12 July 2016]. 447

9 448 European Law Review is therefore broken down into six Acts, each of which is foreshadowed by some select Shakespearian quotations that are pertinent to the discourse. I hope that it thereby enriches the analysis. Act 1 considers the road to Bloomberg and the origins of the promise to hold the referendum, followed in Act 2 by an examination of the importance of the Balance of Competence Review, which was a major government exercise in which each department assessed the impact of EU law in its area. Act 3 picks up the story after the Conservative electoral victory in 2015, analysing David Cameron s renegotiation of the UK s terms of EU membership, while Act 4 concerns the referendum debate and the principal arguments deployed by the Leave and Remain camps respectively. Act 5, entitled The political fall-out, a week is a long time in politics, continues the story in the aftermath of the referendum, and contains three more specific scenes, politics as blood-sport, politics as party and politics as responsibility; it is followed by Act 6, The legal fall-out, two years is a short time in law, which also has three particular scenes in which key issues concerning the beginning, middle and end of the negotiation process under art.50 TEU are explored. Act 1 the road to Bloomberg and the origins of the referendum There is a law in each well-order d nation To curb those raging appetites that are Most disobedient and refractory. Troilus and Cressida Have More than You Show, Speak Less than You Know. King Lear Being of no power to make his wishes good: His promises fly so beyond his state That what he speaks is all in debt. Timon of Athens The origins of the referendum might be traced back to the last millennium, insofar as scepticism concerning the EU was readily apparent among some in UK politics. Space precludes the telling of this story, which therefore takes as its starting point the promise to hold the referendum made by David Cameron in the Bloomberg speech. When the Conservative/Liberal Democrat coalition government took power in 2010, the Conservative Eurosceptics were eager for the opportunity to contest the UK s membership of the EU. The prospect of any referendum was, however, held in check by the Liberal Democrats, who were pro-european and opposed to making promises about the holding of some future EU referendum. The promise of legislation enshrining a referendum lock was contained in the Coalition s Plan for Government, 2 but its inclusion and subsequent passage are credited in part at least with the Prime Minister s perceived need to offer something tangible to Tory Eurosceptics, who had been pressing for an in/out referendum on UK membership of the EU. This led to the European Union Act 2011, which enshrined the principle that a positive vote in a referendum would be required for any increase in EU power, and the pressure was also manifest in the decision for the UK to exercise its opt-out from measures enacted under the Area of Freedom, Security and Justice (AFSJ), as it was allowed to do so under the Lisbon Treaty. 3 Both measures were problematic, albeit in different ways: the EU Act 2011 mandated the need for a referendum in a very broad range of circumstances, such that it would be required, for example, for any 2 The Coalition: Our Programme for Government (20 May 2010), p.19, /the-coalition-documentation [Accessed 12 July 2016]. 3 Protocol No.36 on Transitional Provisions art.10; Protocol No.21 on the Position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice.

10 Brexit: What Next? 449 change to a passerelle clause altering the modality of voting under the Treaty. 4 The opt-out from AFSJ measures represented the triumph of ideology over practicality, insofar as the rejection of measures such as the European Arrest Warrant was taken against the advice of almost all those who proffered evidence before select committees of the House of Commons and House of Lords, 5 this being borne out by the fact that the Government then chose to opt back in to the most important of such measures. 6 The Prime Minister nonetheless continued to resist the idea of promising to hold a referendum on EU membership. The line that he took from 2010 to 2013 was that this would be held if and when the Lisbon Treaty was amended so as to grant new power to the EU. His position in this respect changed in 2013, when he made the Bloomberg speech, promising the EU referendum after what was then the next election. There were two factors explaining the change. First, there was increased and relentless pressure from his Eurosceptic backbenchers. The problem with placating such pressure through giving in to demands is that the placatory effect is merely temporary. The group applying the pressure is calmed in the short term, only for its hunger to reawaken, reinforced as it is by the realisation that its pressure has been successful in the past. The Eurosceptics did not recognise the wisdom of the quote from Troilus. Secondly, UKIP, the UK Independence Party, was making some headway in local and EU elections at this time, with the consequence that pressure increased on the Prime Minister to do something to address the problem, more especially because it was eating into Conservative electoral support. These were the twin rationales for the promise of the referendum made in the Bloomberg speech on 23 January It is worth dwelling on what the speech did and did not say. It was high on rhetoric. There were, said the PM, three major challenges confronting the EU: problems in the euro zone were driving fundamental change in Europe; there was a crisis of European competitiveness; and there was a gap between the EU and its citizens, which had grown in recent years, this betokening a lack of democratic accountability and consent that was felt particularly acutely in Britain. The PM articulated a vision for the EU grounded on five principles: competitiveness; flexibility; the two-way flow of power, back to the Member States, as well as upward to the EU; democratic accountability, with an enhanced role for national parliaments; and fairness in relation to the arrangements for those inside and outside the euro zone. The British people would therefore be offered the opportunity to decide whether they wished to remain in the EU through a referendum, but only after the PM had had the opportunity to negotiate a new deal between the UK and the EU. The UK s continued membership of the EU would then be placed before the British people in the light of the deal that had been secured. The speech is equally important for what it did not say: it said precious little if anything as to the content of what the PM would seek to negotiate with his EU partners prior to putting a deal to the UK public in the referendum. This might be because of the wise words from King Lear, adumbrated above. It would, however, be mistaken to believe that this was the reason for circumspection. The real rationale was almost certainly more prosaic, which was that the PM did not know what he would take to the bargaining table when he made the Bloomberg speech, nor could he give any guarantee that he would be successful, a dilemma shared with Timon of Athens. It might be argued that this was indeed unsurprising given that the referendum was at a minimum three years away from the time when the Bloomberg speech was made, and no sensible PM commits himself three weeks ahead, let alone three years. This may well be true, but 4 Select Committee on the Constitution, Referendums in the United Kingdom (HL 99, ); Select Committee on the Constitution, European Union Bill (HL 121, ); P. Craig, The European Union Act 2011: Locks, Limits and Legality (2011) 48 C.M.L. Rev See -/Publications/ [Accessed 12 July 2016]. 6 A. Hinarejos, J. Spencer and S. Peers, Opting Out of EU Criminal Law: What is Actually Involved? CELS Working Paper, New Series No.1 (2012). 7 The text is available at [Accessed 12 July 2016].

11 450 European Law Review there was another reason for circumspection that was less obvious, but more important. It is this that occupies Act 2 of the unfolding play. Act 2 from Bloomberg to the referendum via the Competence Review Mistake me not, I speak but as I find. Taming of the Shrew Though thou speak st truth, Methinks thou speak st not well. Coriolanus The Better Part of Valour is Discretion. Henry IV, Part I The logic of renegotiation is that some things should change. It was exemplified most powerfully by the claim that the EU had power that it should not have, or did not need. This was the assumption underlying the renegotiation process, and was the Eurosceptic position. In the months after the Prime Minister s Bloomberg speech there was, however, much speculation as to the subject-matter that would form the basis of this renegotiation. This only became clearer in the Chatham House speech in 2015, to which we shall return in due course. Discourse over EU competence and power has been influenced by parallel concerns as to those that shaped debate about EU institutions. Thus for some the shift in power upward towards the EU is the result primarily of some unwarranted arrogation of authority by the EU to the detriment of States rights, which subsidiarity has been powerless to prevent. This is to say the very least an over-simplistic view of how the EU has acquired its current power. The reality is that this has always been the result of three factors: the attribution of new competences through successive Treaty amendments; regulations and directives enacted pursuant to these Treaty provisions in accord with the EU legislative procedure; and judicial interpretation of the Treaty provisions and legislation. There is room for some disagreement concerning the relative weight ascribed to these three variables. The reality is nonetheless that it has been the Member States that decided after extensive discussion within Inter-Governmental Conferences leading to Treaty revisions to accord the EU competence in new areas. The legislation enacted pursuant to these provisions has always required consent from the Council representing Member States interests, and post-1986 much has also received the imprimatur of the European Parliament. The crude picture of a smash and grab operation by the EU institutions or the EU Courts belies reality. This still leaves assessment as to whether current EU competence as embodied in the Treaty provisions and legislation made pursuant thereto, is set at the right level, and its impact on the UK. We do not have to speculate about this in the abstract, since we have the benefit of the Balance of Competence Review. This was established in It was the most comprehensive review of EU competence undertaken by any Member State. The object was to assess the impact of EU law broadly conceived on all areas of government action, and to this end each government department considered the effect of EU law on its area. There is little doubt that the review was launched with the hope by Eurosceptics that it would provide the substance for subsequent renegotiation of the Treaties. The Government would then have the ammunition to take to the bargaining table, whereby it could claim that the UK had carried out an unimpeachable, detailed inquiry that revealed the excess of EU competence. Matters turned out rather differently. The inquiry conducted by government departments was indeed unimpeachable in terms of process, and well judged in terms of substance, but it did not produce the ammunition that the Eurosceptics had hoped for. All of which goes to show that the best laid plans often go off the tracks. 8 Review of the Balance of Competences between the United Kingdom and the European Union (July 2012), Cm.8415, [Accessed 12 July 2016].

12 Brexit: What Next? 451 In terms of process, it showed the UK civil service at its very best. It was told to conduct the review and did so. The civil service was, however, determined to ensure that the outcome would withstand serious scrutiny. It was not about to sully its reputation by authoring reports that might be regarded as politically biased. The process was therefore unimpeachable and uniform throughout. The lead department for the particular topic engaged in broad consultation. This took the form of publicising the review process; receiving written consultations; undertaking town-hall type meetings; soliciting views of experts in day-long discussions held in the department with those responsible for the report; and studying the relevant literature. The lead department produced a draft report based on the results of the consultation, including research that it had done. This draft report was then subject to rigorous scrutiny in a face-to-face meeting with a team from the Cabinet Office, which tested its compatibility against the evidence. This team was reinforced by two external challengers. They were, as the title suggests, people from outside government with expertise in the area, who brought a critical eye to the draft report. The external challengers often had very different views concerning the EU. It was only after this process that the report was submitted to ministers for approval, which was generally given, the exception being the report on free movement that was subject to lengthy delays in the Home Office. In terms of substance, the reports generally found that EU competence was pitched at about the right level. There were, as might be expected, questions about the wisdom of particular legislative initiatives, but that would inevitably be so in the context of a review into any area where a public authority wielded power, whether at national or EU level. The bottom line was that the Eurosceptics did not get the ammunition that they had hoped for from the review. While the civil service was instructed not to draw direct conclusions from the material, it is nonetheless clear from the reports that the distribution of competence was felt to be about right and that membership on these terms was beneficial to the UK. This was not lost on commentators. 9 In a previous era it might have been possible to bury a report that did not cohere with what the government intended, although it would have been difficult to do so with a report of this size. The reality is that we live in an internet age, with the consequence that interring unwelcome reports produced after public input is simply not an option. There was no putting this particular genie back in the bottle. The Prime Minister was therefore caught between a rock and a hard place. The positive results from the competence review meant that it was difficult for him to be forthcoming about the subject-matter of the renegotiation, because it gave him scant material with which to negotiate. He was, however, faced by the need to come up with a negotiating strategy that would satisfy UKIP and the Conservative Eurosceptics. UKIP sought UK exit from the EU. The Conservative Eurosceptics produced a Manifesto for Change: A New Vision for the UK in Europe in January 2013, 10 which listed five principal changes to the existing Treaties: an emergency brake for any Member State regarding future EU legislation that affects financial services; repatriation of competence in the area of social and employment law to Member States; an opt-out for the UK from all existing EU policing and criminal justice measures not already covered by the Lisbon Treaty block opt-out; a new legal safeguard for the single market to ensure that there is no discrimination against non-euro zone member interests; and the abolition of the Strasbourg seat of the European Parliament. This was just the tip of the iceberg, since Fresh Start also sought a plethora of other changes, which were said to be attainable within the framework of the existing Treaties. 9 P. Stephens, The UK Audit of Relations with the EU is Coming up with Awkward Answers, Financial Times, 22 July 2013; M. Emerson and S. Blockmans, British Balance of Competence Reviews, Part I: Competences about right, so far CEPS/EPIN Working Paper No.35 (2013); M. Emerson et al., British Balance of Competence Reviews, Part II: Again, a Huge Contradiction between the Evidence and Eurosceptic Populism EPIN Policy Network Paper No.40 (2014); M. Emerson et al., British Balance of Competence Reviews, Part III: More Reform than Renegotiation or Repatriation, EPIN Paper No.42 (2014). 10 See full_.pdf [Accessed 12 July 2016].

13 452 European Law Review Viewed from the perspective of the civil service, the results of the review were captured by the quote from The Taming of the Shrew, I speak but as I find. Viewed from the perspective of the Eurosceptics, the truth was the wrong answer, hence the quote from Coriolanus. Viewed from David Cameron s perspective the response between 2013 and 2015 was to take a leaf out of Falstaff s book, the better part of valour is discretion, which in this context meant that he said nothing as to what he would negotiate about. This was more especially so because he never expected to have to honour the promise to hold a referendum that he made in the Bloomberg speech. This pledge would only have to be honoured if he won the 2015 election outright. Truth to tell, he did not expect to do so, and all the opinion polls indicated a hung parliament. If the Conservatives took power once again in a coalition with the Liberal Democrats, the PM could then contend that the promise to hold the referendum might have to be sacrificed or delayed as the price for securing continued alliance with the coalition partner. There was thus a second reason therefore to abide by Falstaff s stricture, since there was no point in articulating the detail of a renegotiating strategy that was unlikely to become a reality. Act 3 electoral success and renegotiation Uneasy lies the head that wears the crown. Henry IV, Part 2 Go to, a bargain made: seal it, seal it; I ll be the witness. Troilus and Cressida According to the fair play of the world, Let me have audience. King John The Prime Minister s outright victory in the 2015 elections increased his power within the Conservative Party, for a short time at least. He had delivered the victory that the political pundits and polls suggested was unattainable. It also meant that he could no longer equivocate about the terms of the renegotiation. This was finally unveiled in November 2015 in the PM s Chatham House speech. 11 A deal was then struck at the European Council meeting in February In political and indeed literary terms the Chatham House letter and subsequent missive to the European Council President are revealing. They are quintessentially political documents, with the same core content, but differences around the periphery, given that they were addressed to more than one audience. Thus aspects of the Chatham House letter were written for members of the Prime Minister s party, as exemplified by the material that concerned EU competence over human rights, in which he sought to reassure his MPs that the EU Charter of Rights would not be allowed to stand in the way of the UK s renegotiation of its relationship with the Council of Europe and the ECHR, nor would it be allowed to impede enactment of a UK Bill of Rights to replace the Human Rights Act. The Prime Minister was addressing the same audience when expressing affinity to the kind of ultra vires and identity locks used by the German Federal Constitutional Court. By way of contrast, the UK general public was the intended audience of the PM s remarks concerning the economic and security benefits of staying in the EU. The EU Member States were yet a third audience. We should not, however, allow the detail to mask the headline issue, which is that while the Prime Minister carried through on his promise to hold a referendum, the demands placed on the negotiating table were mild compared to those sought by the Eurosceptic wing of the Conservative Party. The Prime Minister knew that a wish-list akin to that in the Fresh Start manifesto could never be attained. It is, moreover, very doubtful whether the authors of Fresh Start ever thought that it could be. It was in reality merely a stepping 11 A New Settlement for the United Kingdom in a Reformed European Union (10 November 2015), [Accessed 12 July 2016].

14 Brexit: What Next? 453 stone towards their campaign for exit. There were four elements to the negotiating package and subsequent deal. First, there should be protection for countries outside the euro zone. This was required in order to protect the single market and ensure that all 28 Member States decided its rules; to prevent discrimination against non-euro zone countries; and to ensure that non-euro zone countries did not have to shoulder additional costs from integration of the euro zone. Secondly, there should be increased emphasis on competitiveness and the cutting of red tape, thereby removing unwarranted regulatory burdens on industry, the idea being that competitiveness should be written into the DNA of the EU. Thirdly, there should be change that impacted on sovereignty and subsidiarity. Thus the Treaty commitment to ever closer Union should no longer apply to Britain. For the Prime Minister this meant a clear, legally binding and irreversible agreement to end Britain s obligation to work towards an ever closer union. There should in addition be some red card regime, such that if a certain number of national parliaments objected to a measure it could be prevented from becoming law, and there should also be greater emphasis on subsidiarity. The fourth and final part of the renegotiation package concerned free movement and immigration. The Prime Minister did not press for change to the basic right of free movement, acknowledging that it was a key part of the single market. He nonetheless sought change that would prevent what he termed abuse of the right to free movement, and facilitate greater control over immigration in line with the Conservative manifesto. This meant ensuring that when new countries acceded to the EU free movement would not apply until their economies converged much more closely with existing Member States, and dealing with abuse of free movement. EU migrants should moreover have to live in the UK and contribute for four years before they qualified for in-work benefits or social housing, and the practice of sending child benefit overseas should cease. The Prime Minister was cognisant that such changes could pose difficulties for other Member States, and said that he was open to different ways of dealing with them, while insisting that the basic demands should nonetheless be met. The European Council agreed the terms of the renegotiation in February Some demands were easier to meet than others. The deal concerning the first category involved some subtle finessing, in the sense that although the PM sought something akin to a substantive emergency brake of the kind found in arts TFEU in order to protect non-euro zone countries, the deal that was struck embodied what could more aptly be termed a procedural emergency break, whereby there would be extended discussion in the event of disagreement. The second set of demands that sought reduction in EU red tape was pushing at an open door. The third demand for extra red card powers for national parliaments gained approval from other Member States. The other limb of this demand, namely an end to ever closer union at least as it applies to the UK was also accommodated, insofar as it was agreed that the UK was not committed to further political integration. By way of contrast the fourth demand, changes to benefits for EU migrants, particularly those in work, raised complex legal issues and greater political opposition. The end result was nonetheless that the UK demands in this respect were largely, albeit not completely, accommodated in the agreement. The Prime Minister engaged in extensive shuttle diplomacy during this period. There were numerous bilaterals with other prime ministers and heads of state. There was a feeling in some quarters that this was just for show, to convince people in the UK that David Cameron had won an important new deal for the UK. I am sceptical of this view. The deal might well have been of limited significance, but I do not think that the extensive shuttle diplomacy and bilaterals were a sham, masking an underlying easy acceptance of the entire renegotiation package by the other Member States. The truth was rather captured 12 Decision of the Heads of State or Government, meeting within the European Council, concerning a New Settlement for the United Kingdom within the European Union, EUCO 1/16 (Brussels, 19 February 2016).

15 454 European Law Review by the quotations at the outset of Act 3. The Prime Minister was fully aware of the difficulty of securing agreement and the importance of doing so, this being a necessary step to being able to argue for continued membership of the EU in the ensuing referendum. He needed the audience with the other EU leaders, and not surprisingly extolled the virtues of the bargain that had been sealed. There was, as might be expected, extensive academic discussion about the precise legal nature of the overall deal struck between the UK and the European Council, and whether it was really binding on the EU. These issues have now been rendered moot, since the deal was only to take effect if the referendum resulted in a vote to remain in the EU. However, it remains to be seen whether other Member States might seek to draw on aspects of the agreement, which address concerns that they have concerning the functioning of the EU. Act 4 the referendum debate If chance will have me king, why, chance may crown me. Macbeth Be simple-answer d, for we know the truth. King Lear No; he doth but mistake the truth totally. The Tempest What art thou mad? Art thou mad? Is not the truth the truth? Henry IV, Part I The reality was that the precise terms of the renegotiation package played almost no part in the ensuing discourse, except insofar as the Leave camp derided the deal as achieving little of substance. The debate was shaped by politics and personality. Boris Johnson chose at the 11th hour to side with the Leave camp, notwithstanding that he had in the recent past expressed some pro-eu sentiment. He proved to be their most effective advocate and his choice was determined primarily by careful calculation as to his chance of becoming the next Prime Minister, 13 hence the quote from Macbeth. The denouement in this regard rendered the border between fact and fiction illusory, as will be seen in Act 5. The fierce referendum debate was shaped by substance and rhetoric on a broad range of issues, including the impact of Brexit on the UK s security, and on the stability of the EU. The truth was contested every step of the way, as captured by the juxtaposition of the quotes from King Lear, The Tempest and Henry IV. The principal issues that shaped the outcome were nonetheless the economy, migration, sovereignty and an anti-establishment sentiment. They will be considered in turn. The Remain camp secured the advantage on the economy. The detrimental impact of Brexit on the UK economy was attested to, inter alia, by the International Monetary Fund, Organisation for Economic Co-operation and Development, Bank of England, Treasury, Institute for Fiscal Studies, and the London School of Economics and Political Science. That is quite apart from the voices of individual economists who came to the same conclusion. There were dissenting voices, who argued that the UK would be better off outside the EU, but they were a minority. There were also contestable issues concerning the size of the economic hit that the UK would suffer if it left the EU. This does not alter the fact that the majority of voices, institutional and individual, believed that the UK would suffer some serious economic detriment. For most of the time the Leave camp failed to engage with the argument: each time a detailed report emerged showing the negative impact of Brexit, the response was that this was just another instance of Project Fear, or that the relevant group was in a conspiracy with the UK Government, or that all such groups were in a plot. The absurdity of these claims was exemplified by the response to the IFS report concerning the economic impact of exit, where the Leave camp claimed that this reputable think tank was colluding in some way with Brussels. To the extent that the Leave camp engaged with the economic 13 If Johnson had fought with the Remain camp, and if it had won then he would probably still have been number three in the pecking order to be the next PM, lining up behind George Osborne and Theresa May.

16 Brexit: What Next? 455 argument, its claims were patently misleading: the Boris Johnson bus toured the UK emblazoned with the slogan that EU membership cost the UK 350 million pounds per week. This was blatantly wrong, as was pointed out by numerous commentators and parliamentary select committees, which strongly criticised the Leave camp for this depiction of the cost of membership and said that it should be removed. Needless to say, this did not happen. The Remain camp did not, however, help its economic case by occasional exaggerated rhetoric concerning the size of the economic hit that would occur if the UK left the EU. The balance of advantage on migration was, by way of contrast, firmly with the Leave camp. It tapped into voter concerns about the overall number of migrants and the fact that EU free movement rules limited the degree to which we could control our borders. The concerns were heightened by the fact that immigration does not fall evenly across the UK, but is concentrated in particular areas, which bear the immediate financial and social cost of the influx. The uneven impact of migration was a real issue, but it could have been dealt with while remaining in the EU. There were nonetheless significant fictions that shaped this aspect of the debate, none more so than the picture that is painted of the paradigmatic EU migrant, who sought to enter the UK only to access welfare benefits. EU law does not countenance benefit tourism. More significant is the fact that this picture cohered so badly with reality. The most comprehensive study was undertaken by a group at UCL in It revealed the following 14 : European immigrants to the UK paid more in taxes than they received in benefits, helping to relieve the fiscal burden on UK-born workers and contributing to the financing of public services. EU migrants who arrived in the UK since 2000 contributed more than 20 billion to UK public finances between 2001 and Moreover, they have endowed the country with productive human capital that would have cost the UK 6.8 billion in spending on education. Between 2001 and 2011 EU migrants from the EU-15 countries contributed 64 per cent more in taxes than they received in benefits, while those from Central and East European countries contributed 12 per cent more than they received. The positive net fiscal contribution of those arriving since 2000 from these new Member States amounted to almost 5 billion, while the net fiscal contribution of recent European migrants from the rest of the EU was 15 billion. Migrants who arrived since 2000 were 43 per cent less likely than natives to receive state benefits or tax credits. They were also 7 per cent less likely to live in social housing. EU migrants post-2000 were on average better educated than UK citizens, 15 and had higher employment rates. 16 There was moreover the positive benefit that the UK secured through free movement, as attested to by the great many from the UK who lived elsewhere within the EU. Notwithstanding such detailed studies, the reality is that concerns about migration fuelled the Leave camp, fostered by rhetoric that bordered on the xenophobic, and in some instances crossed that line. The numerical estimates of the impact of immigration were designed to fuel such fears, as exemplified by the Minister of Justice s claim that the UK population would rise by 5 million in 2030 if the UK remained in the EU, a figure that was predicated, inter alia, on Turkey gaining full membership of the EU, with no limits on free movement rights. The Leave camp was, moreover, repeatedly content to conflate the numbers of migrants to the UK, repeatedly iterating a global figure that included immigration from EU and non-eu countries, notwithstanding that the latter would be unaffected by exit from the EU and notwithstanding also that non-eu migration exceeded migration from within the EU. 14 See [Accessed 12 July 2016]; C. Dustmann and T. Frattini, The Fiscal Effects of Immigration to the UK (2014) 124 Economic Journal F In 2011, 25 per cent of immigrants from the new Member States and 62 per cent of those from EU-15 countries had a university degree, while the comparable share is 24 per cent among UK citizens. 16 In 2011, the figures were 81 per cent for new Member States, 70 per cent for EU-15 and 70 per cent for UK natives in 2011.

17 456 European Law Review There was also concern about non-eu migration, as exemplified by those seeking to enter from North Africa, Afghanistan or Syria. This is not the place to engage in detailed exegesis on the proper response to the migration crisis. Suffice it to say the following. The problems of dealing with such migration flows will almost certainly be greater when we leave the EU. The reason is not hard to divine. We already control our own borders in relation to non-eu migration, subject to the demands of international law concerning asylum. While we remain in the EU such migrants can, however, be returned to the first EU country that they entered. When we leave the EU this regime ceases to exist for the UK; we would have to consider all claims for asylum directly in the UK, subject to negotiation of any bilateral agreements with other countries. The problems posed by such migration will therefore be exacerbated if we leave the EU. The third major issue concerned sovereignty, the desire to take back control and make our own laws, and the Leave camp reaped dividends on this issue. The argument, however, concealed far more than it revealed. The message constantly portrayed by the Brexit camp was of a top-down Brussels machine imposing rules on Member States against their will, the corollary being that we could reclaim our sovereign birthright in a post-brexit world. This bore little if any relation to reality. The Member States are the principal architects of the Treaty rules that govern the EU. It is they who crafted the initial rules and it is they who modified them in every subsequent Treaty amendment. The Member States determine the EU decision-making schema. Most EU legislation requires approval from the European Parliament and the Member States in the Council, and the UK has voted in favour of the very great majority of this legislation. The argument was equally misleading as to the degree of sovereign freedom that the UK would have in a post-brexit world. The reality is that irrespective of the withdrawal deal that is struck between the UK and the EU, anyone seeking to do business in the EU will continue to be bound to comply with EU rules if they wish to sell goods or services into the EU. The real difference in a post-brexit world is that the UK will have no seat at the table and hence no voice when the relevant regulations are being drafted. The UK s sovereignty over economic and regulatory issues is also significantly circumscribed in relation to non-eu trade. This is because a great many standards that regulate safety and the like are set at the global level, through transnational or international regulatory organisations. These standards are binding factually and legally in the UK and this will not change in a post-brexit world. What will change is that the UK will, once again, have little or no voice in the framing of these rules. The principal players in this regard are the EU and the US, and while we currently have influence through the former, this will cease if we leave the EU. This point is equally relevant in relation to the new breed of trade deals, such as the emerging Transatlantic Trade and Investment Partnership (TTIP), currently being negotiated between the EU and the US. There are valid concerns about the content of such deals. The reality is nonetheless that the UK will have no influence in this regard if we leave the EU, but we will be very significantly affected by the rules if the agreement is finalised. The degree of sovereign autonomy regained over social and environmental issues broadly conceived will depend on a plethora of factors, which were not presented to voters. These include the nature of the post-brexit deal struck with the EU and how far this will require us to comply with EU social policy; the extent to which we will remain bound by subsisting international agreements on matters such as the environment; how far a post-brexit government will seek to reduce worker protection, an issue studiously ignored by the Leave camp; and the downside cost of increased sovereignty, as exemplified by the fact that post-brexit the UK will no longer benefit from the European Arrest Warrant, whereby thousands of criminals have been sent back to other EU countries to face trial, which will have to be replaced by 27 separate extradition treaties, a situation which law enforcement agencies view with extreme unease. The fourth factor that determined the referendum outcome was the desire to hit back at established elites, which for these purposes connoted London and Brussels. There is much in elections that is not determined by rational choice, and this is true even more in relation to a referendum on a complex issue. The reality is that many people were angry in the broadest sense of the term, this being fuelled by inequality

18 Brexit: What Next? 457 and austerity. There are doubtless significant problems in this respect. The reality was that the UK austerity regime had little if anything to do with the EU. Our problems flowed primarily from the US financial crisis in , and not from the subsequent banking and financial crisis in the EU. Funding from the EU had helped to alleviate these difficulties, most especially in large urban areas, which explains the forthright support for the Remain camp by the leaders of the largest UK urban conurbations. The referendum campaign was also notable for what was not talked about. An important issue in this respect was the competence review. It hovered at the back of this feast like Banquo s ghost in Macbeth. The Leave camp ignored it for obvious reasons, namely that it contained detailed studies showing that the balance of competence was about right, and that the UK benefited from membership. It might be thought that the Remain camp would naturally draw on this document, but it did not do so, the rationale seeming to be that it placed the PM in a difficult position, since it prompted the obvious inquiry as to why a renegotiation was needed at all if the status quo was in pretty good shape. This observation has political force, but is nonetheless regrettable. It would have been perfectly possible to finesse the preceding point, more especially so in a referendum campaign that was about message and impact rather than fine print. It could well have been argued that the renegotiation was still warranted in order thereby further to improve the UK s situation, in relation to matters such as child benefits or increased power for national parliaments. The fact that this valuable information resource was not placed before the people was also regrettable for reasons of principle. Renegotiation provided the window for constitutional voice. The government exercises voice on behalf of its people, not just those who voted for it. To be sure the government of the day may well have a view as to what constitutes the public interest on a particular issue. This is entirely legitimate and part of the very raison d être of government. It does not, however, alter the point being made here. The government exercises voice on behalf of the people when engaged in renegotiation of the UK s treaty obligations, and must do so responsibly. This connotes a constitutional obligation to present the case in relation to the EU in an even-handed manner, notwithstanding the fact that this might not be agreeable to those with Eurosceptic leanings. This in turn should have obliged the government to be open about the results of the balance of competence review. The discourse concerning the terms on which to renegotiate has been conducted without reference to the fact that the most far-reaching review conducted by the UK Government reached the conclusion that the balance of EU competence was generally correct and beneficial to the UK. The general public should surely have been told this, and it was part of the government s constitutional responsibility to do so. Most ordinary UK citizens had no idea that the review existed, or its findings. This was quite wrong. One can but imagine the demands of the Leave camp for summary publication of this material if the substantive conclusions had inclined in their direction. They would have been right to do so. It is axiomatic that the constitutional principle does not alter, or cease to be applicable, just because the substantive conclusions reached by the review were less attractive for those of this persuasion. Act 5 the political fall-out, a week is a long time in politics I have no spur to prick the sides of my intent, but only vaulting ambition, which o erleaps itself, and falls on the other. Macbeth The raven himself is hoarse That croaks the fatal entrance of Duncan Under my battlements. Macbeth Trust nobody, for fear you be betray d. Henry VI, Part II

19 458 European Law Review Get thee glass eyes And, like a scurvy politician, seem To see the things thou dost not. King Lear Scene 1: Politics as blood sport The political fall-out from the referendum was bloody and immediate. The Prime Minister resigned on Friday 24 June, notwithstanding many Conservative signatories to a letter encouraging him to stay in order to conduct negotiations with the EU, and has been succeeded as PM by Theresa May. Truth to tell, his decision was unsurprising. If he remained longer he would merely have been hostage to a cabinet composed of prominent Leave campaigners, forced in effect to do their bidding. He had little appetite for the conduct of such difficult and protracted negotiations with the EU. The talk in the next 48 hours was of when, rather than if, Boris Johnson would be crowned as the next PM. He was the front-runner. The imagery was gripping, one Etonian dispatching another from the political stage, both having also been prominent members of the elite upper-class Bullingdon Club while at Oxford. When I gave an earlier version of this paper in Copenhagen a week before the referendum, and conjectured on what might happen if the Leave camp won, I cautioned that Johnson would not have the field to himself, and that Theresa May and Michael Gove would both join the fray. Theresa May duly declared her candidacy, but it seemed that my conjecture about Michael Gove was misplaced, since he initially positioned himself as the principal supporter, the consigliere, for Johnson s prime ministerial bid. By mid-week all had changed. Gove awoke and decided that Johnson was not in fact fit for such high office, informing him of this minutes before the latter was formally to declare his candidacy. Gove regarded it as his duty to go public about this, and felt that he had an obligation to stand as PM, notwithstanding more previous personal disavowals of his suitability to hold such office than one could count. Johnson the assassin was consigned by co-conspirator Gove in double-quick time, given that Johnson s support drained rapidly away. Lest any one should doubt his political downfall, the Tory grandee Michael Heseltine delivered a withering attack on Johnson of a kind that one has not seen for some considerable time. Gove meanwhile was bearing the consequences of his actions. My view remains that he was intent on a leadership challenge from about midway through the campaign, and there can be few instances better suited to the first Macbeth quote. The dramatic metaphor was heightened, given that it is clear from media coverage that his wife played a significant role in encouraging such ambition. The second Macbeth quote, spoken by Lady Macbeth, whereby she plots the death of Duncan, the king, is especially apposite. The world of politics remains extraordinary, no more so than here. That Gove could have seriously believed that his action would be regarded as acceptable, even by the moral standards of politics, stretches credulity. It quickly became clear that there are some things that even some politicians regard as beyond the moral pale, and his action was condemned as treacherous, perfidious and the like by members of his party and media alike. Yet even more remarkable is Gove s self-portrayal as the person to unify the country in a post-brexit world. There is no doubting Gove s hubris; it is his connection with reality that is more questionable. The very fact that he could seriously think that he was best placed to unify the country after being one of the two leading campaigners for the Leave camp, and after having assassinated Johnson, defies belief. If he really believed this it disqualified him for office, and if it was a mere intentional facade it should likewise disqualify him. Proof positive that you cannot keep an old Etonian down for too long was evident but a few days later when Boris Johnson declared his support for Andrea Leadsom, emphasising when doing so that she was kind and trustworthy, thereby further increasing Gove s discomfort. Gove duly lost out in the race to become the next Conservative Prime Minister, coming third in the voting among Conservative MPs, and Theresa May was duly crowned as the next Prime Minister when Andrea Leadsom pulled out of the contest.

20 Brexit: What Next? 459 It would nonetheless be wrong to think that the Conservatives had the monopoly of politics as blood sport. The Labour Party was certainly not willing to allow such a competitive advantage to their Conservative rivals. Thus it was in the immediate aftermath of the referendum that pressure mounted on Jeremy Corbyn, the beleaguered leader of the Labour Party, for not doing enough to convince Labour supporters to vote Remain. His support ebbed away, this turning into a haemorrhage when most of the Shadow Cabinet resigned. Politics as blood sport combined with politics as gallows humour when the Prime Minister, at the outset of his speech to a packed House of Commons on Monday 27 June, duly welcomed a newly elected Labour MP with the quip that she might find herself in the Shadow Cabinet before lunchtime. UKIP was moreover not to be left out of this bonfire of the vanities. It assuredly achieved a new record for an inverse relationship between the number of MPs, which was one, and the number of schisms that affected the party, which was considerably higher. It was also distinct for being the only party where the leader, Nigel Farage, walked into the political sunset declaring a job well done, rather than being pushed off the edge of the political cliff as had become standard practice across the remainder of the political spectrum. What this move betokened about responsibility and seeing through the complex process that Farage had helped to create is another matter entirely. The motif here was more aptly let others reap the consequences of the seeds that one has sown. Scene 2: Politics as party There are in addition more serious dimensions to the politics of the referendum. There was in reality no need to call this referendum. It might, to the contrary, be contended that the country was divided; that it was right that it should be given the choice of whether to stay in or leave the EU; and that David Cameron was correct to allow this to happen. There are considerable difficulties with this argument. The factual reality was that for the ordinary voter the EU never ranked higher than about number seven or eight on the list of things that most concerned them when deciding how to vote, although concerns about immigration ranked higher. The EU was always way below health, crime, education, the economy and other such matters. There was to be sure a reasonably high voter turnout at the referendum, but this does not undermine the point being made here. It merely shows that if the people are offered a choice about something that will markedly affect them one way or another then they are likely to vote, more especially after six weeks when it was the lead issue in all forms of media. It does not alter the fact that the decision to hold the referendum was, as set out earlier, prompted by internal divisions within the Conservative Party and the desire to fend off UKIP. It was a decision driven by party, not country. The idea that the outcome of the referendum, whatsoever it might be, would heal divisions on this issue was equally far-fetched. The UK post-referendum is a country divided as never before, and the divisions are not going to disappear any time soon, more especially given that over 70 per cent of young people voted Remain. That leaves entirely aside the issue of whether the UK will even remain as presently configured, which will not happen if the Scots vote for independence in the referendum that they are likely to be offered, flowing from the fact that they voted by a significant majority to remain in the EU See [Accessed 12 July 2016].

21 460 European Law Review Scene 3: Politics as responsibility The referendum is also significant for what it tells us about politics as responsibility, including in this respect constitutional responsibility. I have made the argument in detail elsewhere. 18 Suffice it to say the following in this regard. Joseph Weiler is surely right that the EU is presently suffering a social legitimacy deficit, manifest in low voter turnout, and the rise of more anti-eu parties. 19 The causes of this deficit are complex, but the failure to articulate any developed conception of Member State constitutional responsibility for their actions, whether concerning the EU s overall decision-making architecture or individual decisions made pursuant thereto, is assuredly a factor in this regard. It should come as scant surprise that such a deficit exists if Member States are allowed to avoid constitutional responsibility for their actions, and offload blame on to the EU, while being cognisant that they are often architects of the relevant rules and that they would reject many changes that would address the root causes of the critique. It should equally come as no surprise that more extreme parties follow the lead of mainstream parties in this respect. The blame for failure to acknowledge such a conception of responsibility resides not just with the States themselves, but also with the broader community, including the academic community. We should, to be sure, continue to subject the EU political ordering to critical scrutiny. We should in doing so also reflect on the rationale for the current disposition of power, what alternatives are feasible and which players set the limits in this respect. The accepted critical discourse on the EU s political ordering is in reality only telling half the story, thereby ignoring conceptions of Member State constitutional responsibility that are central to a rounded understanding of the status quo and viable reform options. This mattered in terms of the referendum debate, and the public s perception of the EU. Some have already noted that the Remain camp felt constrained when presenting any positive case for the EU independent of the economic argument. There were to be sure statements concerning its importance in relation to peace and security, but the point being made here nonetheless remains true. The reality is that the public has become inured over the years to a negative image of the EU. Politicians of all political hues were content to negotiate deals in Brussels, and then critique the very deal to which they had assented when landing on home soil. If the political buck could be passed to Brussels for problems then this would be done, even if the problems were the result of choices to which all Member States assented. Small wonder that the image was so negative, more especially when it was constantly reinforced by a largely anti-eu media. Act 6 the legal fall-out, two years is a short time in law The first thing we do, let s kill all the lawyers. Henry VI, Part II I am not in the giving vein today. Richard III We have strict statutes and most biting laws. Measure for Measure I will withdraw: but this intrusion shall Now seeming sweet convert to bitter gall. Romeo and Juliet There are difficult legal issues flowing from Brexit, more especially because this is uncharted territory. We should therefore resist the temptation to follow the advice in Henry VI, since we may need a few lawyers for some time yet. The process is governed by art.50 TEU, which is the sole mechanism for exit. 18 P. Craig, The Financial Crisis, the EU Institutional Order and Constitutional Responsibility in F. Fabbrini, E. Hirsch Ballin and H. Somsen (eds), What Form of Government for the European Union and the Eurozone? (Oxford: Hart Publishing, 2015), Ch J. Weiler, Europe in Crisis on Political Messianism, Legitimacy and the Rule of Law [2012] Singapore Jnl. of Legal Studies 248.

22 Brexit: What Next? 461 Thus, while the right to exit may flow from the Vienna Convention of the Law of Treaties 1969 (VCLT), it makes clear, as will be seen below, that withdrawal must be done in accord with procedures under the particular treaty, where they exist. 20 The ensuing discussion focuses on three key issues: the trigger for invocation of art.50, whether the process can be stopped when it has begun, and the nature of the resulting agreement. There are therefore issues that relate to the beginning, the middle and the end of the art.50 process. 1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. 2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament. 3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period. 4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it. A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union. 5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49. Scene 1: The beginning Article 50(1) is clear: the trigger for withdrawal is a matter for UK law to be decided in accord with our constitutional requirements. There has, however, been heated debate via blogs and the like as to what those constitutional requirements are, more particularly the degree of parliamentary involvement that should be required before notification is given. It may be helpful to distinguish three different models concerning the constitutional trigger. The first view is what may be termed the classic parliamentary power model, which can be presented as follows. The referendum was not formally binding on Parliament, but merely advisory. This flows from the nature of parliamentary sovereignty as a principle of UK constitutional law, and from the fact that MPs are perceived as Burkean representatives and not as delegates of the voters. Parliament could therefore in theory ignore the referendum, although this is very unlikely in reality. It would, however, be perfectly legitimate for Parliament to demand a debate prior to the triggering of art.50, and/or legislation to authorise invocation of art.50(1), in order that the implications of exit could be considered. There is a strong argument that Parliament should exercise voice in this manner, because of the seminal importance of the issue, and the widespread feeling that notwithstanding efforts by various organisations to keep the referendum debate factually honest, the voters were nonetheless misled repeatedly, most especially by the Leave camp. 20 See also The Process of Withdrawing from the European Union (HL 138; ), para.14.

23 462 European Law Review It is nonetheless also acknowledged as part of this first model that the executive has prerogative power under the UK constitution, which includes the conduct of foreign relations. It falls within the executive s prerogative power to negotiate international treaties, and this includes amendments thereto and withdrawal therefrom. Those who subscribe to this first view would therefore conclude that the executive can, acting pursuant to the prerogative, trigger art.50 by making the requisite notification, unless Parliament demands further consideration of the issue prior to this being done. Parliament thus has the onus of seeking further debate/legislation, and if it does not do so then the executive can decide when it wishes to invoke art.50(1), which includes in this respect the possibility that the executive would consider it advisable to seek parliamentary authorisation before doing so, even where the Parliament has not demanded this. The second model is a modification of the first, and is framed in terms of parliamentary power plus executive duty. It is central to the second view that the scope of prerogative power can be altered by constitutional convention. Thus, whereas an issue might hitherto have been regarded as falling within prerogative power to be exercised by the executive, this might be constrained by the need to seek parliamentary approval. This is exemplified by the prerogative in relation to the making of war and peace, which traditionally fell within the untrammelled authority of the executive. 21 It is, however, now generally accepted that the executive must seek parliamentary authorisation before committing the UK to war. It is exemplified once again by the Ponsonby rule, whereby post-1924 it came to be accepted that ratification of an international treaty would only occur after Parliament had the opportunity to consider the text of the treaty. It could therefore be argued that while the executive has the power to negotiate treaties, including withdrawal, it should nonetheless be required to seek parliamentary approval before embarking on such an exercise where a major treaty change is involved. The crucial difference is that on the second view the onus would lie with the executive to secure the requisite approval, and if it did not do so then the exercise of the prerogative power would be regarded as unconstitutional. It is not, however, clear whether this is regarded as the constitutional status quo, or something that would be constitutionally desirable. The empirical foundation for the former claim has to be sustained, and the line between is and ought cannot be magically wished away. Nor moreover is the form of such parliamentary authorisation clear. There are important differences between demanding approval through parliamentary resolution and through formal statute. The third model is that of actionable legal constraint. On this view prerogative power is legally constrained and these constraints are applicable to the instant situation, such that invocation of art.50(1) would require some form of statutory approval. The essence of the argument is as follows. The Case of Proclamations 22 established that the king did not possess any general regulatory economic power that could be exercised independently of Parliament, and that the prerogative could not alter the common law, statute or custom. The De Keyser case 23 carried this logic one stage further. It established that where Parliament had spoken on an issue, the executive could not have recourse to any prerogative power that touched the same subject-matter. The decision, therefore, denied that prerogative power and statutory authority could exist in parallel. Where the democratically elected Parliament had regulated an area, then the executive had to follow the conditions laid down in the relevant statute, and could not seek a more advantageous result by claiming that a prerogative power could still be relied upon. It has been argued that triggering art.50 TEU through the prerogative will render the European Communities Act R. Joseph, The War Prerogative, History, Reform and Constitutional Design (Oxford: Oxford University Press, 2013). 22 Case of Proclamations 77 E.R. 1352; (1611) 12 Co. Rep Attorney General v De Keyser s Royal Hotel [1920] A.C. 508 HL; R. v Secretary of State for the Home Department Ex p. Fire Brigades Union [1995] 2 A.C. 513 HL.

24 Brexit: What Next? 463 nugatory. 24 The contention is that there is a clash between the prerogative and a statute, and that in accord with the principle in De Keyser the former must be constrained, such that the ECA 1972 can only be modified by a later statute. There are considerable difficulties with this argument. The invocation of art.50(1) has no legal effect as such on the ECA 1972, nor does the 1972 Act say anything about the procedure for withdrawal from the EU Treaties. The analogy with De Keyser is therefore misplaced. To be sure, if the withdrawal agreement is concluded then the ECA 1972 will have nothing to bite on and will be duly repealed. The repeal will, however, be through a statute enacted in the proper manner by Parliament. It is of course inevitable that if the UK decides to withdraw from any treaty then the legislation that duly incorporated the treaty into UK law will be repealed. To regard this as coming within the De Keyser principle would, however, radically change it. The new principle would be that the executive could not exercise the prerogative power to begin the process of amending or withdrawing from a treaty, because this very initiation would impact on, or cut across, the legislation through which that treaty had earlier been incorporated into UK law. There is to my knowledge no case that comes close to establishing this proposition. The difference between the De Keyser principle and the present situation is also evident at the remedial level. The remedial position in De Keyser flows inexorably from its central logic: the state is compelled to apply the relevant statutory rules and cannot circumvent these through the prerogative. There is no such analogy in relation to the ECA 1972, since it says nothing about the procedure for withdrawal, and notification under art.50(1) TEU does not affect its legal status. This raises an interesting question as to what the court would be declaring if it acceded to the type of argument considered here. It could not require that the 1972 Act be repealed prior to an art.50 notification, since the UK remains a member of the EU until the withdrawal agreement is concluded, and repeal would remove the basis on which EU rights take effect in the UK. The assumption appears to be that the court might declare that a statute approving the art.50 notification process is necessary, with the hope that this will provide the forum for more considered parliamentary reflection as to whether we should proceed to exit or not. UK courts would, however, be reluctant to intervene in the parliamentary process in this manner, and there is no guarantee that it would provide the discursive forum desired. There would by definition be no details of any future negotiation on the table at this time, and the danger is that it would quickly become a re-run of the referendum debates of the previous two months. It would in reality be difficult for Parliament to do anything other than give the green light to triggering art.50. There is a real problem with safeguarding parliamentary voice, but as will be seen below this is more acute during the latter part of the art.50 process, not the inception thereof. Scene 2: The middle The debate concerning the constitutional trigger for invocation of art.50 has been affected, as seen above, by differing views as to whether the process can be stopped when it has begun. The interpretation of art.50 is a matter of EU law, and it is contestable. The better view 25 nonetheless is that it can be stopped by the Member State once it has been invoked in the circumstances set out below. This is supported by arguments of principle, text and teleology. The argument of principle is as follows. The right to withdraw from an international treaty flows from public international law, more specifically the VCLT. Article 42 VCLT stipulates that withdrawal of a party may take place only as a result of the application of the provisions of the particular treaty, or of the VCLT; and art.54 VCLT provides that withdrawal of a party may take place in conformity with the 24 N. Barber, T. Hickman and J. King, Pulling the Article 50 Trigger : Parliament s Indispensable Role (27 June 2016), [Accessed 12 June 2016]. 25 See also The Process of Withdrawing from the European Union (HL 138; ), paras 10 13, where the same conclusion was reached by Sir David Edward and Derrick Wyatt.

25 464 European Law Review provisions of the particular treaty, or at any time by consent of all the parties after consultation with the other contracting states. 26 Article 50 TEU regulates the process through which withdrawal occurs; it is the mechanism through which the withdrawing state exercises the preceding right. It is moreover clear as a matter of principle that prior to withdrawal the Member State remains bound by all rights and obligations under EU law. The textual argument hinges on the wording of art.50(3). It is clear from art.50(1) that notification of intent to withdraw is a unilateral decision for the Member State. 27 It has been argued that once the notification has been given the Member State cannot rethink its position, since there is no provision within art.50 allowing it to reverse the process. This ignores the specific wording of art.50(3). It sets out two scenarios as to when the Treaties cease to apply to the State. This is either from the date of entry into force of the withdrawal agreement; or, failing that, two years after the notification, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period. These are alternative scenarios, as is readily apparent from the wording and from the use of the disjunctive, or failing that. It follows that before the two-year clock has run the Member State that has given notification could decide to rethink its position. 28 This is not reading a right into art.50(3) that is not there. To the contrary, it is the natural textual meaning. Prior to the two-year period the Treaties continue to apply to the Member States until a withdrawal agreement has been made, and such an agreement requires the consent of the Member State and the EU. The Member State can, during this period, change its mind and withdraw from the exit negotiation. A further argument in favour of the Member State s ability to change its mind could be derived from art.50(1), since it could be argued that if this occurred there would then no longer be a valid decision to withdraw, since the original decision had been changed in accordance with national constitutional requirements. 29 The contrary interpretation precluding reversal would, moreover, lead to the following untenable conclusion. It would mean that invocation of art.50 could not be altered within the two-year period, even if there had been a change of government following an intervening national election fought on whether the Member State should exit; it would mean that withdrawal would have to proceed even if invocation of art.50 threatened or triggered an economic meltdown in the country; and it would generate intractable problems if the state required a referendum to complete the exit, since the withdrawal agreement might be rejected by the voters. 30 It might be argued by way of response that the preceding interpretation would allow a Member State repeatedly to invoke art.50(1), and then exit the process before the two-year period in the manner adumbrated above. This would indeed be abusive, but it does not undermine the previous argument. The way to deal with such abuse is through legal interpretation that precludes it. Courts do this all the time. There is the world of difference between a Member State deciding bona fide that it does not wish to continue with withdrawal, and a Member State that seeks to play fast and loose by repeatedly invoking art.50 and then resiling from it in order thereby to secure some hoped-for advantage under the Treaties. This latter scenario is in any event far-fetched and would not be tolerated politically by the other Member States. The CJEU would have no difficulty in interpreting art.50 to prevent its use in this manner. There 26 See also VCLT art.56, which provides that a treaty which contains no provision regarding withdrawal is not subject to withdrawal unless it is established that the parties intended to admit the possibility of withdrawal; or a right withdrawal may be implied by the nature of the treaty. 27 There is no express time-limit for invocation of art.50(1), but it is highly likely that the Court of Justice of the European Union (CJEU) would regard it as subject to some implied limit, since otherwise it would be open to a Member State post a Brexit-type referendum to equivocate for years before deciding whether to withdraw, which could have serious negative consequences for the EU. 28 See also The Process of Withdrawing from the European Union (HL 138; ), paras I am grateful to Jukka Snell for this suggestion. 30 I am grateful to Alison Young for this last point.

26 Brexit: What Next? 465 would, moreover, be very real difficulties concerning the legal nature and enforceability of any such agreement/concession that the miscreant State sought to extract in this manner. The preceding arguments of principle and text are supported by those of teleology, viewed from the perspective both of the EU and the Member State. From the EU s perspective the disruption caused by invocation of art.50 should be duly acknowledged. It would nonetheless be outweighed by the very considerable gain where a Member State decided to remain in the EU when on the brink of departure, having realised the benefit of membership. The EU would not wish to be forced to push out of the door a State that had bona fide changed its mind. The construction of art.50 as a one-way street to exit once invoked therefore makes no sense when viewed from the EU s perspective. The same is true when viewed from the Member State s perspective. Let us imagine that the attempt to negotiate access to the single market without having to accept free movement has failed. The resultant deal would therefore be for the Member State to enter the EEA, pay large amounts into the budget, be bound by free movement rules, and social policies, but have no seat at the table when the EU rules are made. The Member State response might be to walk away from this deal, exit the EU, forego access to the single market and take its chances in negotiating some trade deal in the medium term. It might alternatively think that single market access really is very important, as attested to by the post-referendum downturn in economic performance, which would be further exacerbated if such access is not secured for the future. It might then think that the EEA option is in reality worse than continuing to remain in the EU, and that the voters should at the least have the opportunity to express an opinion on this before the matter was concluded. It would be extraordinary if this were to be precluded by an interpretation of art.50 based on the assumption that once it was triggered it was a one-way street to exit. Scene 3: The end There are numerous contestable legal issues concerning the endgame of the art.50 process. Space precludes detailed treatment of all such issues, which could well occupy a separate article. The ensuing discussion will focus on issues that are directly related to Brexit, and connected to matters discussed earlier. First, art.50 is uncharted territory and therefore the content of the withdrawal agreement is uncertain. This is so not merely with respect to the precise details of the future relationship between the EU and the UK, but also more fundamentally with regard to what is put into the withdrawal agreement and what remains for resolution through some later treaty. Article 50 is ambiguous in this respect, and this is readily apparent from the wording of art.50(2) TEU, which states that, in the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. This wording leaves open a range of possibilities. At one end of the scale there could be an agreement that deals only with the core essentials of terminating the UK s current relationship with the EU, while leaving details concerning the future to be decided by a later treaty; at the other end of the scale there might be a much thicker withdrawal agreement that includes the detailed architecture to govern future interaction between the EU and the UK, being mindful of the warning from Richard III that the EU may not be in a giving mood at that time. There are of course intermediate possibilities along a spectrum. There are in addition complex issues concerning the interrelationship between the two agreements. They might be negotiated and concluded at the same time, but it is nonetheless unlikely. Whether this occurs will depend in part on the respective content of the withdrawal agreement, and subsequent treaty. This in turn will impact on the parties to the respective agreements, since if there is a mixed agreement the Member States in addition to the EU will have to signify their consent in accord with their constitutional requirements.

27 466 European Law Review Secondly, this will have constitutional implications for the UK. We have well-crafted rules concerning the ratification of international treaties. The modern position dates from 1924 and is known eponymously as the Ponsonby Rule. It provides that the executive, having concluded an international agreement pursuant to prerogative power, should place this before Parliament for 21 days before it is ratified. This rule was placed on statutory footing by the Constitutional Reform and Governance Act 2010, s.20 of which states that if the House of Commons resolves within 21 days that the treaty 31 should not be ratified then, subject to certain exceptions, it would be unlawful to do so. 32 The rule thus prevents the executive committing the UK at the international level through ratification of a treaty of which Parliament disapproves. It is in addition to the dualist requirement that an Act of Parliament is necessary to give effect in domestic law to matters embodied in such an agreement. The two operate as constitutional belt and braces, the former ensuring that Parliament has voice before the executive commits the country on the international plane, the latter preventing the executive making binding rules at national level independent of the legislature. Thirdly, there is a further twist to the rules on ratification as they pertain to the EU. It is difficult to unravel, but potentially significant. The 2010 legislation contained exceptions to the rules concerning ratification. It is clear from the explanatory memorandum that these were justified because parliamentary scrutiny was manifest in other ways. 33 Section 23(1)(b) of the 2010 legislation as initially enacted provided that the rules on ratification did not apply to a treaty covered by s.5 of the European Union (Amendment) Act This was because the 2008 legislation demanded greater involvement from Parliament, namely an Act of Parliament was required for any amendment to the EU Treaties that took effect through art.48(2) (5) TEU. Section 23(1)(c) of the Constitutional Reform and Governance Act 2010 was then amended so that it now provides that the requirements of s.20 concerning ratification do not apply to a treaty that is subject to a requirement imposed by Pt I of the European Union Act The 2011 Act stipulates that an Act of Parliament plus a referendum must be secured prior to any ratification by the UK of a treaty that amends or replaces the TEU or TFEU. 34 The principle is clear: the default position is that ratification requires parliamentary oversight, except where some greater parliamentary involvement through statute is felt necessary, this being so in the context of changes to the EU Treaty which must be approved through an Act of Parliament. Viewed from this perspective the European Union Act 2011 was simply updating this principle so as to render change to the EU Treaties subject to the requirements of Pt I of that legislation, which happen to include a referendum as well as an Act of Parliament. Fourthly, it could then be argued that a withdrawal agreement made pursuant to art.50 TEU would have to be approved by Act of Parliament and subject to a referendum because it would constitute a replacement of the EU Treaties and hence come within Pt I of the 2011 Act. It might be argued by way of response that a withdrawal agreement does not constitute for these purposes either an amendment or a replacement of the EU Treaties, and thus these conditions are not applicable. It would moreover be open to Parliament to displace the requirements of the 2011 Act in this instant case if it wished to do so, but that would require a statute. Fifthly, if the 2011 Act is distinguished in this manner, the principle underlying the 2010 legislation still remains. The default position is that treaty ratification requires parliamentary oversight through the process set out therein; there are exceptions to this process where greater parliamentary involvement is 31 The definition of treaty includes an agreement between the UK and an international organisation: Constitutional Reform and Governance Act 2010 s.25(1). 32 The House of Lords can also so resolve, but if it does so and the House of Commons does not, then the HL resolution can be overridden by the minister: Constitutional Reform and Governance Act 2010 s.20(7) (8). 33 Constitutional Reform and Governance Act 2010, Explanatory Memorandum, para For a different argument that draws on the 2011 Act, see P. Eleftheriadis, A New Referendum is a Constitutional Requirement (4 July 2016), -requirement [Accessed 12 July 2016].

28 Brexit: What Next? 467 required; and it thus follows that if the exception does not apply it is all the more important not to forget the default rule. This is directly relevant here. Consider the situation where no withdrawal agreement is secured within two years, the UK does not rethink exit, and the treaties simply cease to apply because the other Member States are unwilling to agree an extension. In this situation both parts of the constitutional belt and braces whereby Parliament is given voice are undermined. There is no treaty concluded between the UK and the EU, and therefore nothing on which the 2010 Act can bite. Parliament would be deprived of voice as to whether to disapprove ratification of a new treaty because no such treaty would exist. The other dimension of parliamentary voice would also be muted. The repeal of the ECA 1972 would still have to be done through an Act of Parliament, and in that sense legislative choice would be preserved, but it would be purely formal, since the UK would no longer be party to the treaties to which the ECA 1972 gave effect. The constitutional belt and braces provided by standard UK doctrine would also be placed in jeopardy where there is a withdrawal agreement that is closer to the thin end of the spectrum. The reason is not hard to divine. It will be more difficult for Parliament to exercise its statutory power in relation to ratification if the withdrawal agreement is relatively thin, with much left to be decided through a subsequent treaty, the details of which will not be available when Parliament makes the salient choice as to whether to object to the ratification. Real legislative choice as to whether to accept repeal of the ECA 1972 would be equally difficult, since this decision would be made in circumstances where the nature of any future relationship between the UK and the EU would be very unclear. A strong argument to the following effect can therefore be made. The Constitutional Reform and Governance Act 2010 is a constitutional statute, and thus in accordance with the principles laid down by the Supreme Court in HS2 35 it should be read such that it can only be repealed or disapplied where this is made expressly clear, or by way of necessary implication. Legal provisions that can impact on the principle in the 2010 legislation should be interpreted accordingly. Viewed from this perspective, the executive should not legally be able to allow the two-year period to run out, with the consequence that the treaties cease to be applicable to the UK henceforth, without a fully informed parliamentary debate concerning the state of the negotiations, in which views could be expressed as to whether to proceed with exit in this manner, to accept the best withdrawal deal that is on offer or to remain within the EU. This would be giving effect to the legal principle contained in the Constitutional Reform and Governance Act 2010 as it pertains to this situation, and it should be regarded as a cognisable legal constraint that could be actionable in the courts. Where a withdrawal agreement is secured then the 2010 legislation will perforce lock on, but the government should give assurances that there should be a fully informed debate of the kind set out above, justified by the importance of the issue, and not merely the bare opportunity for Parliament to object to the draft agreement. Towards Act 7 The drama that is Brexit will run for some considerable time yet. There will be no attempt to summarise the preceding argument. It is by way of conclusion for the present worth remembering a paradox that has not been mentioned thus far. The UK has shaped the EU and has attained a very great deal of what has been on its wish-list over the years. This includes, of course, the numerous opt-outs and special deals that it has negotiated repeatedly since It, however, goes further than this, since the UK has played a major role in shaping the EU as we know it today. Consider in this respect the fashioning of the single market project, which the UK pressed for so stridently in the 1980s; the many AFSJ initiatives that the UK supported; and the EU s eastward expansion that was backed by the UK under the banner of widening, 35 R. (on the application of HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3; [2014] 1 W.L.R. 324.

29 468 European Law Review not deepening. The myth that the UK has been put upon as a member of the EU is just that, a myth. The pretence that problems said to flow from free movement are the result of Treaty choices concerning EU membership to which the UK did not accede is just that, a pretence. There will doubtless be considerable political, economic, social and legal fall-out in the months and years to come. With the effluxion of time we may have some better sense of whether the ship of state can be diverted from its present course.

30 Brexit: What Next? 469 After the Deluge Alan Dashwood City University London; Henderson Chambers Common foreign and security policy; European Union; Free movement of persons; Internal market; United Kingdom; Withdrawal The people of the UK have voted by a small majority in favour of withdrawal from the EU. Had the figures been reversed, Brexiteers would be arguing that the result was inconclusive and demanding a re-run of the referendum in the near future. Sadly, it is much easier to dismember a union than to rebuild one. There remains an outside chance that a twist of the political kaleidoscope may provide an opportunity for a change of mind, formalised through a second referendum or a general election, once the implications of leaving the Union have sunk in. However, it would be foolish to count on this. Those on the Remain side need to start thinking about the elements of a post-withdrawal settlement calculated to ensure a continuing close relationship with the UK s nearest neighbours. What follows is a first attempt to sketch out such a settlement. On one matter I can agree with the Brexiteers. To put it crudely, the UK is a far more important partner for the EU than any of the EFTA States or any other associated third country. Its market is bigger, its armed forces better, its universities more highly rated, its outreach to the world more extensive and its security arrangements more effective. The UK must be generous in its willingness to share these advantages, in order to secure the deal that it needs. Access to the internal market for goods and services at the same level as the UK currently enjoys should be the primary goal. Those who talk airily of the country s ability to trade satisfactorily with the EU on the basis of WTO rules are deluding themselves. That might be true in the case of goods but not services, which are particularly vulnerable to protectionist measures masquerading as prudential regulation. Witness the abortive attempt by the European Central Bank in 2011 to restrict the handling of trades denominated in euros to clearing houses situated within the euro zone. Any future arrangement will need to include safeguards against discriminatory action of this kind, equivalent to those Mr Cameron was able to negotiate as part of the February reform package. Success or failure will depend on a softening of positions regarding the free movement of persons, on which both Brexiteers and those speaking for the EU presently appear intransigent. A solution may perhaps be found in the following combination of elements. First and foremost, everybody who has exercised rights of free movement under the Treaties earlier than a prescribed date (that of the formal art.50 notice, for instance), whether to or from the UK, should have their rights of residence and right to continue working, doing business or enjoying their retirement guaranteed. Secondly, there should be complete freedom to accept offers of employment actually made (which is what art.45(3) TFEU envisages) or to set up in business on the basis of a viable business plan, as well as unfettered rights of residence for those able to show that they have the means to avoid becoming a burden on the host State s social services. Thirdly, job-seekers should be required to register this intention upon entry, and to leave after six months if they have failed to find employment, during which period they would have to be entirely self-supporting; and there should be an emergency brake mechanism to limit new arrivals of job-seekers that could be triggered under prescribed conditions. 1 The arrangements should also include: visa-free travel for up to three months; for students, rights of access to higher education 1 Cf. art.112 of the EEA Agreement.

31 470 European Law Review establishments and corresponding rights of residence equivalent to those they currently enjoy, together with continuing participation by the UK in the Erasmus scheme; and freedom of movement for scientific researchers and continuing participation by the UK in EU research-related activities under conditions equivalent to those that currently apply. To secure all of this, a hefty subscription to the EU budget would be unavoidable. Such a package, though undoubtedly tough to negotiate, would surely be attainable, if only Brexiteers and EU purists can be persuaded to moderate their respective theologies. A further element of the withdrawal settlement should be participation by the UK in the area of freedom, security and justice (Title V of Pt 3 of the TFEU) under arrangements that would broadly reproduce the existing legal position, including the possibility of opting into future measures. The UK and its neighbours in the EU face similar threats from terrorism, international crime and uncontrolled migration, which countries are unable to cope with individually nearly as well as they can collectively. It would be no less in the interest of the 27 than of the UK that the European Arrest Warrant, and other measures of internal security such as the Schengen Information System, should continue to apply between them, and that the UK should go on playing an active role in strengthening the Union s external frontier in the Mediterranean. A final element concerns foreign and security policy and defence. Without the UK, the EU would be terribly diminished as an international player, but this need not happen. The Common Foreign and Security Policy (CFSP) is a field of Union activity in which full continued participation by the UK would meet no insuperable constitutional barrier. The CFSP operates under its own set of institutional arrangements, rather than by the Community method, and this seems certain to continue. As art.42 TEU explicitly acknowledges, military and civilian assets belonging to the Member States are needed to enable the Union to pursue an active foreign policy; that being so, it is unimaginable that a monopoly of the initiative should be handed to the Commission or even to the High Representative, or that the Council should cease to act by unanimity when adopting basic decisions establishing the Union s position on a given issue. 2 Moreover, the Court of Justice has a very limited role in the area of the CFSP, while the principles of direct effect and the primacy of EU law do not apply. So, with some legal tweaking (or perhaps by establishing a new European Foreign, Security and Defence Community ), the UK should be able to retain a place at the Council table in a policy area where it has been a leader to the immense advantage of the Union, as well as to its own advantage, and doubtless to the relief of those who must be fearful of losing the support of a doughty opponent of Russian adventurism. In short, there is no need for the UK to settle for the Norway option or for the Swiss option, but any offer the UK makes for a bespoke solution must be a bold and imaginative one, evidently designed to secure the essential interests of its neighbours in the EU no less than its own. 2 See A. Dashwood, The Continuing Bi-polarity of EU External Relations in I. Govaere, E. Lannon, P. van Elsuwege and S. Adam (eds), The European Union in the World, Essays in Honour of Marc Maresceau (Leiden: Brill, 2013).

32 Brexit: What Next? 471 Near-Membership, Partial Membership and the EU Constitution Bruno de Witte University of Maastricht European Union; Member States; United Kingdom; Withdrawal The withdrawal agreement envisaged by art.50 TEU is about setting out the arrangements for withdrawal of the UK, taking account of the framework for its future relationship with the Union. The assumption conveyed by this wording is that the future relationship between the UK, the EU and the remaining Member States will be set out in a separate instrument rather than in the withdrawal agreement itself. It could not really be otherwise, as the withdrawal agreement would be concluded by the EU only (without its Member States), whereas the future relationship would necessarily have to be laid down in a treaty to which the Member States are also parties, since that treaty would entail potentially important changes in the existing rights and obligations of all EU States. At the same time, though, the withdrawal agreement is supposed to take account of the future relationship, which implies that the main outlines of that future relationship should be known by the time the withdrawal agreement is signed. One can well imagine both sides (the UK Government and the EU institutions) refusing to agree a withdrawal agreement unless they are satisfied with the nature of the future relationship; both sides might prefer to have no withdrawal agreement at all (with the brutal consequence envisaged by art.50(3) TEU that EU law would cease to apply to the UK), rather than one accompanied by an unsatisfactory deal for the future. Some Leave politicians seem not to want to trigger the withdrawal process by means of the formal notification mentioned in art.50 until the time they can form a view, by means of informal negotiations, of the possible deal for the future. For now, the other EU States and the EU institutions are reluctant to engage in such a pre-notification negotiation process, but the longer it takes before notification is given, the more tempting it will become also for the European side to engage in global negotiations involving both the conditions and timing of withdrawal and the content of the future relationship. Ideally, both legal events the withdrawal and the creation of the new linkage would enter into force at the same time, thus allowing for a smooth transition from the current legal situation. It should be noted, in this respect, that the two-year guillotine mentioned in art.50 TEU applies only to the case in which the withdrawal negotiations break down, and does not prevent a withdrawal agreement from setting a date in the (far) future for its entry into force. If those global negotiations take place in a constructive spirit (which is not a given, and will depend on many political events of the coming months), then the future relationship agreed between the UK and the rest of the EU may not be radically different from the current situation in which the UK is already a kind of half member of the EU owing to its numerous opt-outs. The core content of a deal for the future would necessarily entail UK participation in internal market law combined with a basic guarantee of the free movement of persons on both sides. The EEA Agreement is a ready-made regime that offers precisely this combination, but it has often been pointed out how that Agreement and the Norwegian model which it embodies would be very unsatisfactory to a post-leave UK government. One would rather imagine the UK requesting, and obtaining, some special safeguards against the free movement of persons that go further than the ones EEA members have (so, less than Norway ) but also wanting to continue to participate in a number of EU policies, such as the Common Foreign and Security Policy, trade and development, from which EEA countries are currently excluded (so, more than Norway ). The threat of losing Scotland

33 472 European Law Review might well convince even a eurosceptic UK government to settle for an ambitious new relationship with the EU which Gareth Davies calls a nearly-member model. 1 Being a near-member would mean that the UK would cease to be an EU Member State (thus complying with the result of the referendum) while being more closely linked to the EU than any other non-member country (thereby preserving the benefits of its current status). However, if the framework for its future relationship referred to in art.50 TEU were to be so ambitious, would it not be better, and beneficial for both sides, if the UK became a partial Member State instead: remaining inside the Union but with broader and more comprehensive opt-outs than it has today? In that case, the UK would not need to notify the intention to withdraw, or it could rescind that notification if already made, and instead focus on the agreement setting out its future place in the EU. That agreement would, in this case, not be a normal association agreement similar to the EEA Agreement, but instead an amendment of the European Treaties through which the new institutional category of the partial Member State would be created for the benefit of the UK (though other countries could aspire to that status later on, such as Norway, Switzerland or even Serbia and Turkey). The main advantage, compared with exit, of such a constitutional change of the EU system towards greater flexibility is that it would allow the partial Member State to continue sitting at the main decision-making tables (in the Council, in the European Parliament and in the Commission) but without allowing it to obstruct the co-operation of the full members in the opt-out domains. Amendments of the European Treaties are, as we know, delicate political operations both at the negotiation stage (when an overall consensus is required) and at the national ratification stage (when separate approvals are needed in each country). The entry into force of such a Treaty amendment would be uncertain, as it would be at the mercy of the vagaries of 28 national ratification processes, but the ratifying minds would be concentrated by the fact that the UK could still decide to submit a withdrawal notification if the agreed deal became unstuck. And, assuming that the other States prefer to keep the awkward partner in, they would make an extra effort to achieve ratification. 1 G. Davies, What Does It All Mean?, German Law Journal Brexit Supplement (2016), p.8.

34 Brexit: What Next? 473 Broken Bats Anthony Arnull University of Birmingham European Union; Members of the European Parliament; Sovereignty; United Kingdom; Withdrawal In his now famous resignation speech to the House of Commons on 13 November 1990, Sir Geoffrey Howe said of Margaret Thatcher s effect on British politicians and officials involved in negotiations with the European Community: It is rather like sending your opening batsmen to the crease only for them to find, the moment the first balls are bowled, that their bats have been broken before the game by the team captain. In a small way, I had a similar experience when campaigning on Twitter and in the West Midlands for Britain Stronger in Europe and Labour In For Britain ahead of the referendum on 23 June 2016, the result of which has plunged the UK into constitutional and economic turmoil. Many years of largely hostile press coverage meant that the Remain campaign started on the back foot. I expected to find widespread misunderstanding of what the EU is for and why it matters, but many people were moderately well informed and keen to find out more. I like to think I persuaded some of them to vote for the UK to remain a member, but am sure I lost some of them. In part this will have been due to my own inability to find the right words at the right moment, but it was also because the EU has made itself so difficult to sell to a sceptical public. A common complaint was that the EU is undemocratic. Reflecting the low turnout in European elections (35.6 per cent in 2014), the European Parliament was little valued and its members unknown. Many were aware of but not impressed by the President of the Commission and the Commission s right to initiate the legislative process. That right was often raised as a riposte when it was pointed out that the Council comprises ministers from the democratically elected governments of the Member States. There was an awareness that the system did not allow voters to throw the rascals out and even a suspicion that the outcome of the referendum would not be final, as the EU always asked people to vote again until they got the right answer. Another major concern was national sovereignty. The argument that the EU is a force multiplier, enhancing the UK s influence over its destiny, had little resonance among those who were adamant that the UK was generally outvoted by its partners. The EU s foreign policy aspirations were little understood and the idea of an EU army toxic. People were reluctant to believe that it could be blocked by the UK, perhaps because the national veto and the principle of conferred powers have been bypassed by the EU in its attempts to bring the euro zone crisis under control. A big plank of the Remain campaign was the economic damage that would be caused by withdrawal. Unfortunately, the notion that membership of the EU might be key to national prosperity came up against the euro zone crisis and its consequences for Member States like Greece and Spain. Seemingly endless media coverage of bailouts and pictures of deprivation and disorder fed a narrative of a broken organisation that could no longer cope. They also reinforced the perception that the EU was not democratic because it was forcing austerity on Member States against their will. A major concern of UK voters was immigration, particularly from Member States that acceded in 2004 and This became conflated with the ongoing refugee crisis and contributed to the narrative of uncontrolled borders propagated by the Leave campaign. The economic contribution made by EU migrants

35 474 European Law Review and the single market more generally to the country as a whole and the West Midlands in particular had little traction with those who felt alienated and left behind. There will be no winners from this catastrophe. If the EU wishes to avoid a repetition in other Member States, it needs to do some soul searching. It has wasted much time on issues that are of no concern to ordinary people, such as the ill-fated Constitutional Treaty. One of the reasons for this is that directly elected politicians do not control its agenda. The time has come to think seriously about passing the right of initiative from the Commission to the European Parliament and reinforcing the citizens initiative. Voters might be given the right to dismiss individual MEPs or even the entire Parliament in the event of misconduct or a major policy failure. The Commission could then become a true civil service supporting the European Parliament and perhaps the Council. Its role in policy-making could be partly that of a sceptical friend, stopping things from being done without proper foundations. Such a system might have helped avoid the precipitate admission of so many ill-qualified Member States to the euro zone and the removal of internal borders in the Schengen area before its external border had been secured. This is not to say that domestic concerns did not play a role in the outcome. The Remain campaign relied heavily on expert opinion, particularly on the economy and security. Given the expert consensus in favour of remaining, the Leave side set about denigrating experts as biased. Michael Gove, one of their most prominent members, felt sufficiently emboldened to make the troubling claim that people in this country have had enough of experts. This line of attack was accompanied by the repetition of statements that were factually incorrect, such as the claim that the UK sends 350 million to the EU every week and did not have the right to block Turkish accession. Since those who knew better had been demonised, many people started to believe such claims. Leading leavers also succeeded in presenting themselves as the representatives of ordinary people even though they were quintessential members of the establishment whose arguments were often inconsistent with policies they had themselves pursued in government. Nostalgia, unease about a rapidly changing world, inequality, a chance to bash the establishment also played their part. Indeed, had the Labour MP Jo Cox not been brutally murdered a week before polling day the Leave side s margin of victory might have been even greater. But the Remain campaign was playing with bats that had been broken by the EU before the game started.

36 Brexit: What Next? 475 Negotiating International Trade Treaties after Brexit Panos Koutrakos City University London European Union; International trade; Treaties; United Kingdom; Withdrawal; World Trade Organisation The outcome of the referendum of 23 June 2016 has focused attention on two formidable tasks, namely the divorce arrangement between the UK and the EU, and the agreement on the future relationship between the two parties. There is, however, a third layer of uncertainty and complexity that the UK would have to face as a non-member State, that is, its trade relations with third countries. Renegotiating trade agreements The existing trade relations between the UK and third countries are governed by two types of international agreements. The first consists of agreements concluded by the EU alone, the content of which falls within the EU s exclusive competence. 1 These agreements only bind the UK as a matter of EU law pursuant to art.216(2) TFEU. Trade agreements binding on the UK are also mixed, concluded by both the EU and the UK (along with the other Member States), given that parts of them fall within the scope of national competence. 2 The implications of Brexit for the legal position of the UK under both types of agreements would be profound. As far as exclusive EU agreements are concerned, they would not apply to it once the UK ceased to be a Member State. As for the mixed agreements, most would have to be renegotiated as they are, in essence, of a bilateral character. They are concluded of the one part by the EU and its Member States and, of the other part, by the third country, and refer to the UK in its status as a Member State of the EU. The Free Trade Agreement with South Korea, for instance, defines the parties to it as the European Union or the Member States or the European Union and the Member States (art.1(2)). This is further borne out by the wording of these agreements, as reference is made to Member States as Contracting Parties to the Treaty on the European Union and the Treaty on the Functioning of the European Union, hereinafter referred to as the Member States of the European Union. This is in contrast to other agreements with groups of countries where each country is referred to separately. For instance, the 2012 Association Agreement between the EU and Central American States defines its parties as the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama, referred to as the Republics of the Central American Party (art.352). It follows that, once the UK left the EU and lost its status as a Member State, it would also cease to be a party to the Agreement. This argument is also borne out by a clause in a large number of mixed agreements on their territorial application. The EU-Central America Association Agreement, for instance, makes it clear that it applies only, as far as the EU is concerned, to the territories in which the Treaty on the European Union and the Treaty on the Functioning of the European Union are applied and under the conditions laid down in those Treaties. 3 1 See, for instance, the EU-South Africa Agreement on trade in wine [2002] OJ L28/4. 2 See, for instance, the Free Trade Agreement with South Korea [2011] OJ L127/6. 3 EU-Central America Association Agreement [2012] OJ L346/3 art.360.

37 476 European Law Review The conclusion that such mixed agreements would have to be renegotiated is also supported by their context. These are package deals, and part of the package is the status of the UK as a Member State of the EU. Third contracting states may well argue that the withdrawal of the UK would amount to a fundamental change of circumstances pursuant to art.62 of the Vienna Convention on the Law of Treaties. The option of rolling over It has been argued that, instead of renegotiating substantive provisions of trade agreements, the UK would simply agree with third countries a rolling over of the provisions of the existing agreements. This argument, however, would give rise to considerable uncertainty. Trade treaties are the outcome of long and complex negotiations and of package deals and compromises reached in a very specific policy context. Once the UK relied on the good will of a third country to extend these deals in a completely new context, it could not be certain that the latter party would resist the temptation to unravel specific aspects of the deal. It is difficult to envisage, for instance, the automatic rolling over of an existing trade agreement concluded by the EU without adjusting the quotas already applicable to trade between the UK and the third country concerned. Even if third countries felt no need to amend the substantive provisions of an existing agreement, the UK would be asking, in effect, to be bound by obligations previously negotiated by the EU in a completely different policy context. It is difficult to see how this arrangement would be consistent with the quest for flexibility in international trade negotiations that underpins the Brexit argument. The rolling over of existing trade agreements, therefore, would involve renegotiation of at least some of their provisions. The profound difficulties of renegotiating Renegotiating trade agreements is bound to be a long and complex process. First, the UK has not negotiated trade agreements for over 40 years. This is because the competence in this area has been transferred to the EU. While there is no doubt that British diplomats and civil servants are highly skilled, this is a muscle that they have not flexed for a very long time. It is for this reason that there is a paucity of trade negotiators in the UK. According to a former permanent secretary at the Foreign Office, Britain had only 20 active hands-on trade negotiators. 4 Secondly, there is an increasing tendency in international treaty-making for big package deals. This is illustrated by the Deep and Comprehensive Free Trade Agreements that the Commission has been advocating since the mid-2000s. These are more ambitious than traditional trade agreements: rather than focusing on the more straightforward trade restrictions (such as tariffs), they aim to reach the highest possible degree of liberalisation in areas such as services and investment, to cover intellectual property rights and competition, and to include provisions on labour and environmental standards. In addition to the Agreement with South Korea, such treaties have been finalised with Singapore, Vietnam and Canada. For instance, when it enters into force, the Comprehensive Economic and Trade Agreement with Canada (CETA) will grant EU firms access to public procurement of federal, provincial and municipal authorities (with certain exceptions) in Canada. This is the most extensive access that Canada has given to any of its trading partners. Such big deals require big markets to support them. And while the UK market is not inconsiderable, it cannot compete with a market of 500 million people. Neither can its market access compete with a guaranteed market access to 500 million people. Thirdly, such agreements take longer to negotiate. A case in point is CETA: negotiations started in 2009 and the agreement is not yet in force. Long negotiations, however, are by no means confined to the EU: the trade agreement between Canada and South Korea, for instance, took 14 rounds of negotiation 4 Financial Times, 4 July 2016.

38 Brexit: What Next? 477 over 9 years to conclude. This point is borne out by the letter that eight former US Treasury Secretaries sent to The Times, saying that as our experience in the United States with trade negotiations shows it is a difficult environment to negotiate and approve agreements and the risk of accidents is real. 5 During the negotiations of a settlement with the EU under art.50 TEU, the UK would be prevented, under EU law, from negotiating separate trade agreements with third countries. This is because the UK would still be an EU Member State during this period and, as such, it would have no competence to negotiate trade deals with third countries (with the exception of Common Foreign and Security Policy, the power to negotiate international agreements is exercised by the Commission pursuant to art.218(3) TFEU). Even if, in legal terms, a pragmatic solution were found enabling the UK to negotiate informally with third countries during the art.50 TEU period, it would require the goodwill of the EU institutions. The UK would also find it profoundly challenging to negotiate with third countries while engaging with complex negotiations with the EU. Even under the agreements negotiated by the EU, which have been praised as examples of what the UK could get, there are limits to trade liberalisation. For instance, under CETA, UK beef and sheep exports to Canada above a certain quota are subject to a higher tariff. There are also restrictions on airlines and motor manufacturers. Would the UK fare better on its own? A country which is often praised as an example of an effective and lithe trade negotiator is Switzerland (with particular emphasis on its trade agreement with China). And yet, that agreement is unbalanced, whereas the trade agreements that the EU has concluded with South Korea or Canada are more ambitious and comprehensive. Finally, the negotiation of trade agreements requires the will of the UK s interlocutors to enter into this process. This would be shaped inevitably by the above and other policy factors. This point was made by President Obama during his recent visit to the UK ( I think it s fair to say maybe some point down the line but it s not going to happen any time soon because our focus is on negotiating with the EU The UK is going to be at the back of the queue.). This was not the first instance that the US policy on this point was expressed: the US Trade Representative, Mike Froman, had already stressed that the US was focusing on regional trade negotiations (the Trans-Pacific Partnership, TTIP), and said that Washington was not particularly in the market for a trade agreement with a single nation like the UK. He stated that the US would apply the same tariffs and other trade-related measures as China, or Brazil or India. 6 The position under World Trade Organisation (WTO) rules The argument has been made that the application of WTO rules to the relations of the UK with the rest of the world would be both automatic and satisfactory. This argument, however, would give rise to considerable uncertainty and legal problems. The rights, commitments and concessions of the UK under WTO rules are currently tied in with those of the EU. After it left the EU, the UK would no longer be covered by the common schedules which the EU submitted for all the Member States. Instead, it would have to draw up and submit its own schedules of concessions and commitments on market access, as well as its own list of exemptions from the MFN treatment obligation. These would have to be accepted by all other WTO members. The WTO membership of the UK is not controversial. It would have, however, to be negotiated. And no negotiation is without complexities or surprises. There is, for instance, an inherent element of uncertainty insofar as one or more WTO member may be tempted to make life difficult for the UK either in order to make a political point, or in order to modify their own schedules in response to the UK request. After all, this is a package deal once an aspect of it is up for amendment, the whole package might be unravelled. 5 The Times, 20 April 2016, p.9. 6 Financial Times, 28 October 2015.

39 478 European Law Review From a substantive point of view, and the above difficulties notwithstanding, the application of WTO as a fall-back option would have a negative impact on the trade relations of the UK with the rest of the world. On the one hand, it would entail the increase of tariffs for a range of products. On the other hand, the liberalisation that it would provide for in the areas of services is far more limited than that advocated by the UK. These points were made clearly by the WTO director-general, Roberto Azevêdo, during the referendum campaign. 7 Conclusion Post-Brexit, it will take the UK considerable time and energy to redefine its trade relationships with the rest of the world. The legal and practical complexities will be staggering, and the UK will have to tackle them while lacking experience in international trade negotiations. 7 Financial Times, 26 May 2016.

40 Brexit: What Next? 479 Brexit and the Euro Area Alicia Hinarejos University of Cambridge Economic and monetary union; European Union; Eurozone; United Kingdom; Withdrawal The UK has long had a fraught relationship with the European project, and Economic and Monetary Union (EMU) is one of the areas where the UK s reluctance has been most visible. The UK chose not to join the last phase of EMU and adopt the euro when it was introduced; since then, it has found itself not just at the fringes of EMU, but often fighting political and judicial battles in connected areas of EU activity. The global financial crisis and the euro area crisis, which saw a push towards further integration among euro countries, served to strain the relationship further. The post-crisis reforms have included, first, the creation of various mechanisms of financial assistance and the expansion of the role of the European Central Bank; secondly, the adoption of measures to improve budgetary surveillance and economic co-ordination; and thirdly, the creation of a stronger financial framework, and of a banking union for the euro area. While it was not just euro countries that were affected by the crisis, they were most directly affected by the sovereign debt crisis that developed in the euro area. Accordingly, there were fears of a growing cleavage between euro and non-euro countries, and an awareness of the need to reconcile their interests. This can be seen in arrangements adopted in some of these measures, such as the double majority voting system of the Board of the European Banking Authority, or the introduction of a non-discrimination clause in the Single Supervisory Mechanism. Nevertheless, many of these post-crisis reforms intensified the UK s concerns that further integration and caucusing among euro countries would have undesirable effects for EU countries outside the euro area and for the Single Market. The UK was specifically, and understandably, worried about the standing of its financial services industry. These concerns resulted in judicial challenges to various financial regulatory measures, adopted (or to be adopted) without the UK or by outvoting it. Thus the UK challenged the use of the enhanced co-operation procedure to adopt a potential Financial Transaction Tax 1 ; the provision of the short-selling regulation that granted powers to the European Securities and Market Authority (ESMA) to limit or ban the practice of short-selling 2 ; and the provisions of the Capital Requirements Directive and Regulation that impose a cap on bankers bonuses. 3 These challenges were, ultimately, unsuccessful, but they are illustrative of the UK s uneasy relationship with the EU and the euro area in recent years. Additionally, in the wake of the crisis, the UK declined to be a party to the Treaty on Stability, Coordination, and Governance, which resulted in its adoption outside the EU framework. Against this background, the UK s referendum vote to leave the EU prompts at least two quick reactions. The first one is that Brexit makes, of course, no sense: while the UK was always reluctant when it came to economic and fiscal integration, and often disagreed with other EU members on the direction that financial regulation should pursue, it was perfectly aware of the need to remain a player in the area, lest the rules be made by others. Without a voice in the legislative procedure that the UK has been so intent on maintaining and using, the machine will grind on without taking into account the interests of the UK or its traders. 1 UK v Council (C-209/13) EU:C:2014:283; [2014] 3 C.M.L.R UK v Parliament and Council (C-270/12) EU:C:2014:18; [2014] 2 C.M.L.R UK v EP and Council (C-507/13), removed from the register on 9 December See also UK v ECB (T-496/11) EU:T:2015:133; [2015] 3 C.M.L.R. 8, a challenge to the ECB s Eurosystem Oversight Policy Framework insofar as it applies to non-euro countries.

41 480 European Law Review The second reaction concerns those that remain. It would be naive and simplistic to think that the UK is all that stands between the euro countries and further and more ambitious integration, involving not just a degree of tax harmonisation and a more integrated financial framework, but also fiscal capacity for the euro area. For one, the UK is not the only EU country outside the euro area; furthermore, such a view would neglect the complex political situation within most of the euro countries, the significant domestic constitutional obstacles in the way of such a leap, and the little appetite for further integration among most European citizens today. All in all, the EU faces enormous challenges and a crisis of social legitimacy; to the extent that the EU is a system in crisis, Brexit is not the answer to that crisis. At the same time, however, if the remaining EU countries are able to hold firm in the face of contagion and a sour political mood, it is possible that the absence of such a reluctant member will have an impact, over the long term, on the ability of the rest of the EU more specifically, of the euro area to move forward and tackle some much-needed reforms.

42 Brexit: What Next? 481 While Europe s eye is Fix d on Mighty Things : Implications of the Brexit Vote for Scotland David Edward University of Edinburgh; Former Judge of the ECJ Niamh Nic Shuibhne University of Edinburgh European Union; Independence; Scotland; United Kingdom; Withdrawal On 23 June 2016, 51.9 per cent of the UK electorate voted to leave the EU. One of the clearest indices of division within that electorate concerns the split between England and Wales, on the one hand (53.4 and 52.5 per cent respectively to leave), and Northern Ireland and Scotland (55.8 and 62 per cent respectively to remain), on the other. It is undeniable that this dimension of the outcome has intensified the sense that the UK faces an internal as well as external constitutional crisis. In this note, we examine some of the implications for Scotland in particular, considering the strength of the remain vote there, its 2014 referendum on independence from the UK, and the Scottish National Party s position in its 2016 election manifesto that a significant and material change to Scotland s relationship with the UK could provide the trigger for a second such referendum in the future. Nicola Sturgeon, Scotland s First Minister, has said that, for her, the outcome of the EU referendum constitutes such a change. 1 The UK s system of power-sharing establishes that authority is devolved from the Westminster Parliament to Northern Ireland, Scotland and Wales by means of three distinct sets of arrangements for present purposes, on the basis of the Scotland Act 1998 (as amended). Three proposals were put forward by democratically elected leaders in other parts of the UK. First, while 16 and 17 year olds had been permitted to vote in the 2014 referendum on Scottish independence (and in the elections for the Scottish Parliament in May of this year), that was not carried over to the EU referendum in June. Secondly, all three First Ministers wrote to Prime Minister David Cameron in February 2016 asking that the EU referendum be delayed because elections were taking place in Northern Ireland, Scotland and Wales in May, and this would confuse two quite separate campaigns. 2 Thirdly, Nicola Sturgeon proposed a double lock mechanism whereby all four constituent parts of the UK would need to vote to leave the EU for that result to be valid. 3 None of these issues was considered with due seriousness. The absence of appropriate Westminster engagement with how each of the UK s nations might be represented in the EU referendum process exposes the depth of the fault lines in Britain s constitutional framework. One could also question the fairness of the electoral arrangement that disenfranchised many UK citizens living and working elsewhere in the EU and many citizens of other EU Member States living in Scotland, including many who have lived here for decades. What are the legal options that face Scotland now in trying to reflect the strong democratic will of its electorate to remain within the EU? In a domestic constitutional system that does not formally allow for 1 See [Accessed 6 July 2016]. 2 See [Accessed 6 July 2016]. 3 See e.g. [Accessed 6 July 2016].

43 482 European Law Review the accommodation of that will, the options are somewhat limited. Several ideas have been discussed in the immediate aftermath of the referendum. 4 For example, there is the so-called reverse Greenland proposition: that Scotland might remain in the EU even if the rest of the UK formally withdraws. In the Greenland example, the Kingdom of Denmark was and remained the EU Member State, while Greenland (a part of the Kingdom) was allowed, as a separate territory, to be outside. Quite apart from the facts of geography, that is an entirely different proposition from one in which the UK becomes a third state but part of its territory remains part of the EU. Amendment of the EU Treaties to recognise novel forms of Union membership or association at a sub-member State level is of course technically possible if the political will of all other 27 Member States could be galvanised to achieve it, but we do not see such a complex (and necessarily precedent-setting) arrangement as realistic or achievable in practice. Another dimension of post-referendum analysis concerns the powers that the Scottish Parliament may or may not have to thwart the authority of Westminster internally. Since the UK does not have a written constitution, there is a flurry of speculation at present about what the exact domestic mechanics for the triggering of art.50 TEU and for the eventual ratification of the withdrawal and future relationship agreements envisaged there might be. For example, it is suggested that enactment by the Westminster Parliament of the legislative mechanism to give effect to the vote for Brexit would require the consent of the Scottish Parliament under the so-called Sewel Convention, now enshrined in the Scotland Act. 5 This is because such legislation would alter the legislative competence of the Scottish Parliament and the executive competence of Scottish Ministers. 6 So the Scottish Parliament could put a spanner in the works by refusing legislative consent. However, given the ultimate sovereignty of the Westminster Parliament, also enshrined in the Scotland Act, 7 it would always be possible for it to proceed without legislative consent, either by not seeking it at all or by ignoring its refusal if sought. If Scotland were to vote to become an independent state, we would pick up the discussions that started in 2014 before the first independence referendum but in profoundly altered circumstances now. Then, the principal hypothesis was that a newly independent Scotland would need to gain EU membership alongside the rest of the UK, which would itself retain membership. The narrative at present is about Scotland remaining a member of the EU while the rest of the UK would leave. Some lawyers would argue that that would require a fresh application for membership under art.49 TEU, but like art.50 TEU on withdrawal, with which we have all become rather painfully familiar now, art.49 TEU is a sparse, framework provision. It provides an outline of the basic process and procedural requirements. 8 There is plenty of room for legal argument, but the real work of making Scotland s membership happen would have to be done at the political level. As a former ambassador from another country remarked to one of us, We will find a way; we always do. Whether or not an independent Scotland would have to 4 For an overview and analysis, see T. Lock, A European Future for Scotland? (28 June 2016), [Accessed 6 July 2016]. 5 See s.28(8) of the Scotland Act 1998, added by the Scotland Act See Explanatory Note 9, annexed to the Scotland Act Scotland Act s.28(7). 8 Article 49 TEU reads: Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account. The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements.

44 Brexit: What Next? 483 adopt the euro as its currency and how open borders might be retained with the UK would be key issues in the negotiations. Which objective would now matter to Scottish voters more? Where might the EU extend compromises? The 2014 debates offer no insight for the radically new environment in which we now find ourselves. An independent Scotland might also consider, even on an interim basis, seeking to join EFTA and thus establishing a relationship with the EU based on the EEA. Under that framework, Scotland would have access to the internal market, and it would have to accept the legal obligations that come with it. The diminution in law-making influence that flows from the EEA model has been well articulated in recent debates and that cannot be ignored. However, Scotland could retain full participation in Erasmus and some other programmes, with associated status in others such as Horizon It would have regulatory competence over considerably more policy areas such as agriculture and fisheries. And difficult questions such as the issue of currency could at least be postponed. Hard choices therefore face Scotland s political leaders and, in turn, its electorate. Whatever might happen, the UK cannot any longer evade more serious reflection on its constitutional setup. We offer one final comment on the tone of any discussions on Scotland s future within the EU, whatever the outcome of the dynamics now unleashed. In light of the principle of sincere co-operation between the Union and its Member States set by art.4 TEU, the UK Government may rightly be criticised for having entered into negotiations with the EU under the firm threat of withdrawal all the more surprising in light of the former Prime Minister s warnings of economic Armageddon during the referendum campaign but art.4 TEU also commits the Union to respect for the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government (emphasis added). In 2014, we saw a dismissive and obstinate approach from the then leaders of the European institutions responding to whether or how an independent Scotland might secure membership of the EU. 9 The same dismissive approach has come at the time of writing from the President of France and the acting Prime Minister of Spain, neither of whom appears to enjoy the unalloyed enthusiasm of their own electorates. Nothing could be more counterproductive to what is now sorely necessary: peaceful and positive resolution of the constitutional crises unfolding at all levels. As the Scottish First Minister has emphasised repeatedly over recent days, we are in uncharted territory at the present time. All sides involved have a responsibility to be constructive, open and, at all times, respectful. And if the political leadership paralysis that afflicted Westminster in response to the referendum thus far should ultimately, as some already suggest, derail the UK from proceeding with withdrawal, never would the input of all of its nations be more needed if there were to be any hope of restoring trust and credibility with voters and European neighbours alike. 9 See e.g. [Accessed 6 July 2016].

45 484 European Law Review The Practicalities of Leaving the EU Catherine Barnard Trinity College, Cambridge Civil Service; European Union; Subordinate legislation; United Kingdom; Withdrawal Introduction So, the voters have decided: Brexit it is. That was the easy bit. It s now up to the politicians to deliver on art.50 TEU and the civil service to make Brexit a reality. This short contribution will look at what VoteLeave (the official campaign to leave the EU) has said about the process of leaving the EU and how this might match up to reality. While the precise details on how art.50 TEU is to be delivered in the UK domestic context are still being vigorously discussed, 1 I want to focus on the position beyond the art.50 notification. I want to argue that given the reduced size of the civil service and the lack of key capacity, the whole process of definitively leaving the EU may take decades. 2 VoteLeave s approach to the process of leaving VoteLeave envisages a three stage process by which the UK will leave the EU 3 : first, informal negotiations (exploring how the other EU countries and the Commission want to proceed, including through the next Intergovernmental Conference); and secondly, formal negotiations (possibly the use of art.50 TEU, but: Those who say that Article 50 is the only possible path are mistaken about the history of the EU. It has consistently invented legal mechanisms to solve political problems. ) The third stage involves the repeal of s.2 of the European Communities Act (ECA) VoteLeave identifies s.2 as the heart of the problem with our EU membership. However, care would be needed here. Section 2(1) incorporates the key principles of supremacy and direct effect into UK law. Following a vote to leave, s.2(1) would clearly have to be repealed. By contrast, s.2(2) is less well known but for practical purposes is equally important. Section 2(2) has allowed for hundreds of EU Directives to be implemented by Statutory Instrument (SI) (i.e. secondary UK legislation). Implementing Directives via SI than via an Act of Parliament is a much quicker and easier process. Repeal of s.2(2) would mean that these SIs would no longer have the force of law. Given the legal and commercial chaos which would result in the repeal of s.2(2) ECA 1972, 4 it is likely that any future Brexit legislation would contain a clause ensuring that SIs already adopted under s.2(2) ECA remain in force for the time being, possibly with reference to the fact that the decisions of the Court of Justice interpreting that legislation would continue to apply. In addition, that Brexit Act would also need to provide that all EU Regulations currently in force (e.g. the Brussels I Regulation) would continue to apply. VoteLeave envisages a tight timetable for its three stages to occur: We will negotiate a new UK-EU Treaty and end the legal supremacy of EU law and the European Court before the 2020 election. While the rhetoric of VoteLeave is to repeal all of s.2 ECA in one fell swoop and so restore democratic 1 _parliamentary_involvement_07_2016 [Accessed 8 July 2016]. 2 This contribution develops C. Barnard, [Accessed 8 July 2016]. 3 [Accessed 8 July 2016]. 4 [Accessed 8 July 2016].

46 Brexit: What Next? 485 government, in fact on closer examination, VoteLeave does suggest a more nuanced approach, involving repealing s.2 ECA while simultaneously incorporating all existing EU law into UK law and beginning the process of sorting EU rules. The process of sorting involves identifying three categories of rules: clearly stupid things that are repealed, things that are amended, things that either make sense or are themselves global rules we would accept anyway (or both) and are kept. The legal and practical reality Screening and sorting all implementing laws into the three categories stupid, amendable; and sensible would be a gargantuan task, the work of decades not weeks. 5 It has taken over 40 years to produce the complex statute book that we now work with; it may take decades to dismantle it, even with the help of a Royal Commission on Regulatory Reduction. 6 Even sensible legislation will need amending to take account of the UK s new position outside the EU. Take for example public procurement. The drafting of the recent General Directive 2014/24 7 was heavily influenced by the UK Government. The UK implemented the Directive well ahead of the transposition deadline. Presumably the UK s implementing legislation will fall in the category of sensible but what about access to the Internal Market Information System (IMI) established by Regulation 1024/2012 of the European Parliament to provide a means to facilitate and enhance administrative cooperation? A small issue, I accept, but one of many thousands of technical considerations which will need to be resolved. A recent correspondent (who wishes to remain anonymous) put it this way: The UK will have to agree on continued payments into the EU budget for things like staff pay and pensions, agree on the EIB and loans, repayment of grants, compensation for shifting the Medicines Agency out of London, compensation for the fact that London will no longer be the seat of the Chemicals Division of the new Unitary Patent Court and the UK s having to denounce the relevant international agreement, guarantees for people who have exercised their right of free movement and establishment (if they want a points-based system this may have to be coupled with the introduction of visas), possible reciprocal rights to medical care, the various EU funds, fisheries and compensation for foreign fishing fleets, etc, etc. The list is never ending and will represent lots of hard grind for a depleted demoralised civil service. The last point is crucial. Dealing with the fall out of Brexit will be quite a job for what is a severely reduced civil service, 27 per cent smaller than at its most recent peak in early This is particularly problematic given that part of the civil service will be occupied with negotiating the new trade deals envisaged by VoteLeave with countries like India. Where is the expertise needed? Largely retired, even dead. Remember the UK has not negotiated a trade deal for 40 years. 9 New Zealand has now offered to loan some of its own trade negotiators to the UK to fulfil the task years/ [Accessed 8 July 2016]. 6 [Accessed 8 July 2016]. 7 [2014] OJ L94/ /publicsectoremployment/march2016 [Accessed 8 July 2016]. A new Brexit Unit has been set up comprising civil servants from the Cabinet Office, Treasury and Foreign Office: /brexit-turmoil-civil-servants-eu-referendum [Accessed 8 July 2016] wa/; [Both accessed 8 July 2016] / [Accessed 8 July 2016].

47 486 European Law Review The day-to-day practical reality of voting to leave the EU has not received the attention it has deserved. For constitutional lawyers, Brexit raises some difficult legal questions. For practitioners, there would be considerable uncertainty. And for civil servants? Don t rush to book holiday any time soon.

48 Brexit: What Next? 487 Brexit, Voice and Loyalty: Reflections on Article 50 TEU Dora Kostakopoulou University of Warwick European Union; Member States; United Kingdom; Withdrawal Article 50 TEU, which was introduced by the Treaty of Lisbon, regulates for the first time the process of a Member State s withdrawal from the EU. The incorporation of an exit clause in primary law confirms the public character of the Union 1 and its democratic architecture which is not congruent with the idea of perpetual membership without options. The Member States have always had the freedom to negotiate transitional arrangements, derogations, opt-outs and enhanced co-operation arrangements internally in accordance with the Treaties, but they were also endowed in 2009 with the option of voluntary withdrawal from the Union. Accordingly, the Member States have the freedom to act in a variety of situations. 2 The institutional edifice of the EU has accommodated intergovernmentalist interests, national anxieties and domestic concerns over the decades and, by so doing, it has acknowledged that no union is perfect, that is, entirely coherent or fully optimal. 3 At the same time, it has displayed flexibility and institutional innovation; one cannot disregard the adoption of the novel institutional mechanisms of differentiated integration since the 1990s and the carefully crafted provisions on enhanced co-operation. 4 Like all organisations, the associative Union of European States and Peoples has fully accommodated Hirschman s well-known distinction of exit, voice and loyalty. 5 If voice (or voices ) by a Member State fails to yield the desired effect, it is free to exercise its right to exit. In ordinary organisational environments, this dualist strategy is translated into either fight or flight. Voice is thus the strategy of procuring change. As Hirschman put it, to resort to change, rather than exit, is for the customer or member to make an attempt at changing the practices, policies and outputs of the firm from which one buys or of the organisation to which one belongs. Voice is here defined as any attempt at all to change, rather than to escape from, an objectionable state of affairs. 6 If neither voice nor exit is pursued, for political, legal or purely pragmatic reasons, the alternative is, of course, loyalty. In public (or associative) unions, which are based on a community of interests and values, there exists limited room for rebellions or the unrestrained and uncontrolled pursuit of sectoral interests. 1 P.S. Reinsh used this term in International Administrative Law and National Sovereignty (1909) 3 American Journal of International Law 1. He stated inter alia that the public unions which have been formed by the action of states and which are now operating as public agencies of international interests, indicate the extent to which the national authorities have come to realise the importance of interests and activities that transcend in their operations the boundaries of the national state The interests which they represent and administer can be understood only when we consider the human world as a totality of interrelated forces and activities : at 1. 2 The term is borrowed from W. von Humboldt, Gesammelte Schriften, Vol.1 (Berlin: Behr, 1903), p See A. Stubb, A Categorisation of Differentiated Integration (1996) 34 J.C.M.S. 283; S. Lavenex, Concentric Circles of Flexible European Integration: A Typology of EU External Governance Relations (2009) 9 Comparative European Politics Title IV TEU Treaty; and Title III TFEU. 5 A. Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organisations, and States (Cambridge, MA: Harvard University Press, 1970). 6 Hirschman, Exit, Voice, and Loyalty (1970), p.30.

49 488 European Law Review This is because the latter contradicts the public nature of the union and the institutional framework that governs the organised plurality. When this is said, it is plain to see that, irrespective of its power, population or founding membership status, a Member State cannot, and should not be allowed to, disregard either the public union s institutional framework or its history or both, since the former is anchored on the latter. The presuppositional framework on which public unions are premised does not include the simultaneous combination of voice and exit in the sense of issuing an ultimatum, such as if you do not listen to us and give us what we want, we will exit. If such ultimatums were seen to be permissible and legitimate, the union s integrity would be amputated and its role and functions would be devitalised. Giving a dissenting Member States the licence to ignore the voice and exit mechanisms existing in the Treaties would also be tantamount to authorising the EU s involvement with domestic political games and intra-party interests and agendas, but the EU can only be guided by the collective good. It cannot operate in the service of a certain Member State or of the ideology of its (transient) ruling elites. In this respect, it could be argued that the UK Government s renegotiation of its membership with the EU under the shadow of a public vote on a leave or remain question would breach the acquis communautaire and introduce a number of cracks into the orderly functioning of the Union. Threats of a Brexit (or a Grexit) contravene the voice and exit provisions of the Treaty and result in subjugating the Union into domestic political games and exigencies. It should be mentioned, here, that art.13 TEU outlines the values, objectives and interests of a collective union: it states that the institutional framework of the Union, aims to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions. In addition, the negative duties entailed by the principle of sincere cooperation, namely, the duties to facilitate the achievement of the Union s tasks and to refrain from any measure which could jeopardise the attainment of the Union s objectives (art.4(3)(3) TEU), prevent the non-observance of the Treaty s provisions on voice and exit and the making of new deals which are then put to the public to vote on. Loyalty to the Union, its values and the collective good of citizens and states is not tantamount to silence. If one examined carefully the process of European integration, one would discern vocal opposition, crises, difficult negotiations and compromises. As it has been observed, the EU is a community of antinomic co-operation. 7 Indeed, one could argue that it is often loyalty to a vision of Europe that propels voice(s) and a commitment to reform. However, in the light of the British EU membership referendum, it might be argued that if another Member State in the future were allowed to force a renegotiation of its contractual obligations under the threat of exit, to cause a disruption in the ordinary operation of the Union and to impede the implementation of its activities, the EU would cease to be a public union. Given that a lot of energy, time, hard work and commitment have been invested in designing the EU s institutional framework and in adopting provisions which accommodate the different opinions, views and concerns of the Member States within a Treaty-based framework that caters for the citizens and residents of the Union as well, arts 4(3), 13 and 50 TEU must respected. In contemplating withdrawal and referenda, the Member States cannot appease themselves that they engage in actio in distans. Their actions as well as official discourses in national arenas affect their partners, the citizens and residents of the Union here, now and in the future. If they do not follow the voice or exit provisions contained in the Treaties, their actions essentially undermine the integrity of the EU s institutional framework and can easily lead to a decline in trust and confidence in the EU. 7 D. Kostakopoulou, Democracy-Talk in the European Union: The Need for a Reflexive Approach (2003) 9 Columbia Journal of European Law 411.

50 Brexit: What Next? 489 And of course, there exists the symbolic horizon, too. No Member State can be seen to believe that it has all the rights and none of the obligations. It is the case that, in the eyes of its partners, the UK has behaved in a selfish way. Mr Cameron failed to tame the resurgence of nationalism and its corollary euroscepticism in his party and dragged the whole EU into a theatre of national political games and domestic party politics. In some ways, the UK has behaved like Narcissus, the character of the Greek mythology who was so self-absorbed that he disregarded everything outside himself. Interested in his image, absorbed by his illusional self-grandeur and caring for nothing apart from the picture of himself he had created in his mind, Narcissus turned his back on reality with a tragic end. Evidently, narcissistic behaviours do not advance the interests of public unions. A Union of narcissistic Member States is incomprehensible. In the post-referendum landscape, it seems to me that the agenda of the next intergovernmental conference has to include the amendment of art.50 TEU. In the light of the British referendum on EU membership, I wish to suggest the insertion of a new sentence into para.50(1) TEU. The latter would read as follows: Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. In so doing, it shall respect the Union s institutional framework and the principle of sincere co-operation under Article 4(3) TEU. The insertion of the latter sentence would remind any Member State contemplating withdrawal that it cannot ignore its obligations under the Treaties and behave as if it possessed unlimited rights. For when a Member State decides to activate art.50 TEU, it triggers a process of conjunctive transition, that is, it is embarking upon a gradual process of withdrawal, and its obligations, including the obligation to respect the acquis communautaire which flows from its EU membership, continue until the withdrawal agreement enters into force. A Member State, therefore, should not assume that it is disjunctively related to the EU because it has raised a withdrawal issue or has even activated art.50 TEU by notifying its intention to the European Council. Nor should it assume that it could force a renegotiation of its obligations under the shadow of a national referendum. It continues to be a member of the European collectivity because the EU is a power-sharing and rule-setting public union governed by the Treaties which are its constitutional document. 8 And as the principle of sincere co-operation (art.4(3) TEU) has been given a constitutional quality, no Member State should act unconstitutionally. There is an additional reason as to why the EU needs to exercise institutional leadership by ensuring that there will be no repetition of the UK s actions by another Member State in the future. Voice, in the form of transitional arrangements, derogations, negotiated opt-outs and enhanced co-operation initiatives, or orderly exit under art.50 TEU, should be the only options in cases of disloyalty. 9 For even when a State withdraws from the Union, it will never be in a position of pure externality vis-à-vis the Union. It will become a third country, but will also continue to be next to its neighbours and to be tied in a loose or looser way to the other European States in a Union. As such, it cannot ignore the EU for there is nothing between itself and Europe. It will be next to Europe and in Europe. The treaty it will negotiate with the EU will not sever all the webs of entanglement and, for this reason, it would have to think carefully about the type of relationship that being in Europe and next to Europe, that is, the EU, might entail. 8 Parti Ecologiste Les Verts v Parliament (294/83) [1986] E.C.R. 1339; [1987] 2 C.M.L.R Hirschman, Exit, Voice, and Loyalty (1970), p.30.

51 Articles Unity and Diversity of European Fundamental Rights Protection Johannes Masing * Federal Constitutional Court of Germany; University of Freiburg EU law; European Court of Justice; Fundamental rights; Harmonisation; Jurisprudence Abstract Fundamental rights protection has become complex and demanding between the poles of the European Convention of Human Rights, the Fundamental Rights Charter of the EU and the constitutional fundamental rights of the individual States. These codifications serve different purposes and may have different meanings. To ensure a productive interaction between these instruments we need to advance the jurisprudence of the courts involved a jurisprudence that is far from being final and develop lines of delimitation that do not create hierarchy and uniformity but rather strike a good balance between unity and federal diversity. Introduction How uniform or colourful shall we shape the future of Europe to be? This question is not least decided by fundamental rights protection. When may wearing a burka or putting up a Christian cross be prohibited? How may members of the extreme left or right demonstrate or become teachers? When may a party be prohibited? When may intelligence services, the police, corporate enterprises or individual citizens gather which kind of data? And when may they pass them on to others? Is there a right to strike for political aims? Are flash mobs permissible? Which standards apply to equal treatment of homo- and heterosexual couples? Is there a human right to social welfare and to what extent? Does such a right apply to asylum seekers as well? Which standards do the fundamental rights mandate for organising public broadcasting or universities? Are plea bargains in criminal law or convictions in the defendant s absence permissible? What about abortion, stem cell research or genetic modification? What about the neutrality of the state on religious matters? Shaping human rights protection determines how far these questions are subject to European harmonisation. Does the EU award each citizen the same fundamental rights in every area; does it create an overall and common fundamental rights status for each citizen of the Union? If so, all these questions would be open for debate. Determining the field of application of the European Charter of Fundamental Rights, which entered into force with the Treaty of Lisbon of 2009, concerns these very questions. If the Charter fully applied to the Member States as well, this would cause an enormous harmonisation surge much more effectively so than assigning many new regulative powers to the Union in the Treaties. * Justice of the Federal Constitutional Court of Germany and Professor of Constitutional Law at Albert-Ludwig University, Freiburg. This article draws on Einheit und Vielfalt des Europäischen Grundrechtsschutzes (2015) 70 JuristenZeitung

52 Articles 491 However, the Charter limits its own applicability vis-à-vis the Member States. This fact is in principle undisputed in general as well as between the Federal Constitutional Court of Germany and the European Court of Justice. The challenges encompassed by this limitation, however, are one of the key questions of the future and must be faced by co-operating in a constructive manner. This common ground serves as a good point of departure and at the same time as a vanishing point that enables the building on previous jurisprudence. In order to be fully aware of the challenges, however, we have first to critically review developments of European jurisprudence that have displaced obvious solutions for achieving a fundamental rights alliance. This review is preceded by a brief illustration of the overall framework of the EU architecture for fundamental rights. The main architecture of European fundamental rights protection The question as to the field of application of the Charter of Fundamental Rights is part of a complex architecture that is composed of a triangle between the European Convention on Human Rights (ECHR), the Charter of Fundamental Rights and fundamental rights enshrined in national constitutions. The relationship between the ECHR and fundamental rights in national constitutions In principle, the relationship between the ECHR and fundamental rights in national constitutions is evident: it is governed by the relationship between national and international law. The Convention is an international treaty, which enters into force according to national transformation procedures. In the end, it is the respective States that make the final decision on how the convention is implemented and interpreted. 1 Multi-layered and flexible fundamental rights protection The aspirations concerning the Convention s field of application are extensive: the Member States are expected to enforce the human rights provided by the Convention comprehensively and on all levels. This comprehensive obligation comes with broad discretion as to which specific shape these guarantees are given. The Convention addresses the Member States as such and contains no provisions on how they should put its guarantees into practice, in particular which institutional measures they should take to secure the human rights on the national level. 2 It neither prescribes whether a Member State s citizens may invoke the Convention s human rights (and if so before which institution), nor does it make provisions for which authority should ensure that the human rights are enforced within the Member State. 3 In particular, it does not require the creation of a court vested with the powers of a constitutional court that is able to enforce the Convention vis-à-vis the legislature. 4 Even though creating such an institution might seem to be a more or less unavoidable prerequisite for implementing the Convention considering the amount of detail in today s jurisprudence, the Convention permits the Member States to answer the fundamental questions of whether human rights should be enforced by political-parliamentary or by judicial decisions and whether they should rank equal or higher than statutory law. 5 1 Swedish Engine Drivers Union ( ) 1 E.H.R.R. 617 at [50]; James v United Kingdom (1986) 8 E.H.R.R. 123 at [84]; cf. also C. Grabenwarter and K. Pabel, Europäische Menschenrechtskonvention, 5th edn (München, Basel, Wien: C.H. Beck, 2012), 3 para.1; D. Ehlers, in H. Ehlers (ed), Europäische Grundrechte und Grundfreiheiten, 4th edn (Berlin, Boston: De Gruyter, 2014), 2 para A. Peters and T. Altwicker, Europäische Menschenrechtskonvention, 2nd edn (München: ICH Beck, 2012), 1 para.3. 3 Cf. Lithgow v United Kingdom (1986) 8 E.H.R.R. 329 at [205]. 4 Leander v Sweden (1987) 9 E.H.R.R. 433 at [77] with further examples from jurisprudence. 5 For the various possible ways of implementation see H. Keller et al. (eds), A Europe of Rights (Oxford: Oxford University Press, 2008).

53 492 European Law Review Accordingly, the content of the ECHR does also not wish to create a uniform legal body of human rights protection. Neither does the Convention consider itself to be an alternative or a competitor to fundamental rights on the national level, nor is it designed to serve as a superior or especially dignified source of law for such rights. It does not claim direct supremacy or preferential application. 6 The Convention does not wish to merge the various forms of fundamental rights protection, their differing underlying values, doctrines and differentiations, but rather to secure them by creating a common European standard of fundamental rights protection. Being a reaction to the destruction of the Second World War and to the inhumanity of destructive nationalism, the Convention does indeed aim at fostering political cohesion among the European States by reinforcing their humanitarian basis. To this extent, it does and has always been intended to promote a certain convergence of the individual legal orders. However, the Convention is not an instrument of homogenisation. Article 53 ECHR expressly recognises that the Member States sovereignty to themselves creates ambitious fundamental rights protection that the Convention does not wish to restrict. 7 Consequently, the Member States accord the Convention varying places and ranks. In the Netherlands, it ranks above the constitution and provides citizens with the only possibility of defending themselves against national laws. 8 Austria has awarded the Convention the rank of constitutional instrument. 9 Austrian citizens may invoke the Convention before the courts in the same way as they can their own constitution. Thus, both countries permit the Convention to be used directly against the legislature. This, however, also depends on the respective design of legal recourse, which differs considerably. 10 Things are similar in countries that place the Convention between their constitution and statutory law. 11 Other countries such as Germany, in particular, accord the Convention the rank of simple statutory law, 12 In these countries as well as indeed by now seems to be the case in all Member States citizens may invoke the Convention before the courts, without, however, being able to directly rely on it to challenge statutes. 13 In practice, of course, these countries courts have devised and for the sake of effectively enforcing the Convention have had to devise rules of interpretation that also accord the Convention a special rank vis-à-vis other statutes and permit the courts to take it into account when interpreting statutory law. 14 In such countries, 6 Cf. art.53 ECHR; see the emphasis on subsidiarity in Kudla v Poland (2002) 35 E.H.R.R. 11 at [152]; Z v United Kingdom (2002) 34 E.H.R.R. 3 at [103]. On the ongoing debate between the proponents of direct applicability and precedence, see T. Giegerich, in O. Dörr, R. Grote, T. Marauhn (eds), EMRK/GG Konkordanzkommentar zum europäischen und deutschen Grundrechtsschutz, 2nd edn (Tübingen: Mohr Siebeck, 2013), Vol.1, Ch.2 paras United Communist Party of Turkey v Turkey (1998) 26 E.H.R.R. 121 at [28]; J. Frowein and W. Peukert, Europäische Menschenrechtskonvention, 3rd edn (Kehl am Rhein: NP Engel Verlag, 2009), art On precedence cf. art.94 Grondwet; see also E. de Wet, Belgium and the Netherlands in A Europe of Rights (2008), p.235; on the gap in legal recourse, cf. art.120 Grondwet, according to which courts may not review the constitutionality of statutes. 9 See Artikel II no.7, 59th BundesverfassungsG, Austrian BGBl. 1964/ On the design of Austrian law see also D. Thurnherr, Austria and Switzerland in A Europe of Rights (2008), pp For instance in France (art.55 of the French Constitution); Greece (art.28(1) of the Greek Constitution); Slovakia (art.7(5), art.154(c)(1) of the Slovak Constitution); Spain (arts 95, 96 of the Spanish Constitution), see M. Soriano, The Reception Process in Spain and Italy in A Europe of Rights (2008), pp ; and Switzerland (on the ongoing debate, cf. Thurnherr, Austria and Switzerland in A Europe of Rights (2008), p.330). 12 For Germany: cf. art.59(2) GG; see also Grabenwarter and Pabel, Europäische Menschenrechtskonvention (München: C.H. Beck, 2012), 3 para.6; for Norway and Sweden: O. Wiklund, Norway and Sweden in A Europe of Rights (2008), pp ; on the particularities in the UK: Grabenwarter and Pabel, Europäische Menschenrechtskonvention (2012), 3 para For Germany: F. Mayer, in U. Karpenstein and F. Mayer (eds), EMRK Konvention zum Schutz der Menschenrechte und Grundfreiheiten (München: C.H. Beck, 2012), Introduction para For Germany: BVerfGE 111, 307 at ; for Italy: C. Panara, in A. von Bogdandy, P. Villalón and P. Huber (eds), Ius Publicum Europaeum (Heidelberg: C.F. Müller, 2007), Vol.1, 18 para.62.

54 Articles 493 situations in which the Convention conflicts with statutory law require specific rules: in the UK, the courts refer the relevant statutes to parliament for it to resolve the issue 15 ; in Germany, the Convention, being part of federal law, prevails over Land legislation (art.31 of the Basic Law); furthermore, the German legal system recognises an interpretation of the rule of law principle permitting citizens to challenge alleged violations of the Convention before the Federal Constitutional Court by relying on the national fundamental rights in conjunction with art.20(3) of the Basic Law 16 obviously hoping that the court will be able to find an acceptable solution. Accordingly, the relationship between protection by the national fundamental rights and protection by the Convention is designed in different ways. In countries that do not possess an express catalogue of fundamental rights the Convention may serve as the elementary basis of the national protection of fundamental rights. 17 Other countries have more or less developed a constitutional system of fundamental rights protection that stands alongside the Convention. In these countries, the layers of protection may be very differently assigned to each other, depending not only on the Convention s substantive rank but also on the respective country s procedural law. Accordingly, the Convention may be assigned a more complementary and subsidiary role if a national legal system possesses effective enforcement mechanisms for its national fundamental rights that do not equally apply to the Convention. On the other hand, the Convention may also take a more prominent position if national law does not contain means to enforce its national fundamental rights that are as effective as those the Convention brings with it. In some countries, such developments have led to constitutional rights and Convention rights being almost completely harmonised. 18 In such countries, the task of enforcing the fundamental rights may to a certain extent e.g. concerning the judicial review of statutes be left to the European Court of Human Rights (ECtHR). 19 Conversely, other countries have seen reinforcement of their national system of legal recourse be it what concerns the Convention rights themselves, 20 be it regarding the fundamental rights under the national constitution 21 result in a shift of the task of enforcing liberty rights back into their respective country. Particularly in view of the great variety in implementation mechanisms as well as of the various fundamental decisions concerning human rights protection in the conflict between political and legal responsibility that are evidenced by them, it becomes obvious that the Convention aims at securing a common ground of the rule of law a basis of common principles relating to a free order and must not be viewed as a step towards an infringing legal sub-system in Europe. This must also lead any interpretation 15 HRA s.4; see also S. Besson, Ireland and the UK in A Europe of Rights (2008), p.51 with further examples from jurisprudence. 16 BVerfGE 111, 307 at On the UK, cf. R. Grote, Die Inkorporierung der Europäischen Menschenrechtskonvention in das britische Recht durch den Human Rights Act 1998 [1998] ZaöRV 309; cf. on Austria, E. Wiederin, in Ius Publicum Europaeum (2007), Vol.1, 7 para For instance in Austria: C. Grabenwarter, in Ius Publicum Europaeum (2008), Vol.2, 20 para.64; and Switzerland: H. Keller, in Ius Publicum Europaeum (2008), Vol.2, 23 para.64; Thurnherr, Austria and Switzerland in A Europe of Rights (2008), p Originally, this was the case in Switzerland; cf. (also on further developments) Keller, in Ius Publicum Europaeum (2008), Vol.2, 23 paras For instance in the UK by the Human Rights Act of 1998; cf. Grote, Die Inkorporierung der Europäischen Menschenrechtskonvention in das britische Recht durch den Human Rights Act 1998 [1998] ZaöRV 309, 346; by way of judicial development of the law in Switzerland as well, see Keller, in Ius Publicum Europaeum (2008), Vol.2, 23 paras In France, for instance, the question piroritaire de constitutionnalité, which was introduced as a consequence of the relocation of legal recourse, can today be used to refer cases concerning the compliance of a statute with the constitution to the Conseil constitutionnel; art.23-2(al.2), art. 23-5(al.2) Ordonnance n du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel, version consolideé au 26 janvier 2015; for Germany cf. supra note 16.

55 494 European Law Review of its guarantees. The Convention aims only at guaranteeing a legal minimum. 22 It constitutes the fundament but not the goal of fundamental rights protection. Not designed to shape fundamental rights protection in Europe by itself, it tries not to improve or perfect but rather to ensure that there are minimum standards in law. Every State must build its own human rights protection on the basis of the Convention. This protection may give more specific shape to the Convention s contents, resolve fundamental rights issues in varying ways and also exceed the Convention s guarantees. 23 Viewing the Convention as a set of minimum rights or as a basic standard does not mean that its protection is limited to cases that are on the brink of inhumanity or of the legal system developing into an unfree authoritarian regime. Minimum guarantee must not be confused with minimal guarantee. After the Second World War, Europe wanted to have minimum standards that would be able to make a change even in everyday legal routine otherwise it would not have been necessary to create a dedicated court; the courts made this clear very early on by making ambitious decisions. This, however, does not call into question the fact that the Convention aims only at securing a common basis, not at harmonising the various substantiations and systems of fundamental rights that exist at the national level. The fact that some Member States choose to do without their own systems of fundamental rights and instead rely completely or to a large extent on the Convention does not prevent one from regarding the Convention as securing basic standards. 24 In these cases, too, it is appropriate to accord the Convention a restricted and yet not meaningless role. For it is exactly in those countries that such a decision may contain the choice to place human rights protection primarily in the political responsibility of democratic actors instead of in the hands of the courts. That in such cases citizens may invoke only the Convention s basic standards is the logical consequence. The fact that other countries such as Austria or Switzerland perceive the Convention as a sophisticated instrument of advanced fundamental rights protection and integrate it into their legal system does not contradict this choice. 25 It is quite conceivable that individual States may build a differentiated fundamental rights standard that is enforceable in court and far exceeds basic standards either parallel to the respective States own fundamental rights or as a substitute for such rights. In this respect, the Convention permits various interpretations. This exact point perfectly fits the concept of the Convention being a treaty under international law. It is important, of course, that not all shapes given to the Convention on the national level be regarded as the exclusively possible ones on the international level. Rather, they are national interpretations that do not automatically become generally binding minimum guarantees that would have to be enforced by the ECtHR. In summary, one must regard the relationship between fundamental rights protection in the Member States and protection under the Convention as a model for multi-layered fundamental rights protection: the Convention establishes an additional layer of fundamental rights protection below the national protection of fundamental rights that serves as an auxiliary and as a monitoring instance. It covers all areas yet exerts restricted influence. Challenges facing the relationship between unity and diversity Despite the flexibility in international law, this dualism in fundamental rights protection poses challenges to maintaining diversity in practice. By creating the ECtHR and the possibility of lodging individual 22 F. Kirchhof, Grundrechtsschutz durch europäische und nationale Gerichte [2011] NJW 3681, Cf. art.53 ECHR; Grabenwarter and Pabel, Europäische Menschenrechtskonvention (2012), 2 para For the UK see Grote, Die Inkorporierung der Europäischen Menschenrechtskonvention in das britische Recht durch den Human Rights Act 1998 [1998] ZaöRV 309, ; for Austria, see Grabenwarter, in Ius Publicum Europaeum (2008), Vol.2, 20 para For Austria, see Wiederin, in Ius Publicum Europaeum (2007), Vol.1, 7 paras ; for Switzerland, see Keller, in Ius Publicum Europaeum (2008), Vol.2, 23 paras

56 Articles 495 applications, 26 the Convention has developed considerable dynamics that may in and of themselves create considerable tensions. Since every citizen may invoke the Convention s guarantees in individual cases and against decisions by national courts, such protection de facto at least comes close 27 to recognising a common European fundamental rights status even though the Convention does not bind the respective authorities of the States immediately, but exclusively the States as such. The ensuing possibilities that the Court has to influence the national legal systems are extensive. Even though officially the Court may only decide individual cases with respect to the State concerned, a realistic interpretation of the Convention shows that the Member States may well, if necessary, be obliged under international law to make structural adjustments. And at least on a factual level, the Convention s requirements, having been thus shaped, can only be fulfilled if national courts may directly apply the Convention. Therefore, under the multi-layered model for protecting fundamental rights, the balance between unity and diversity must be sought in substance: the field of application of the Convention s guarantees must be restrictively interpreted. Thus, the rights under the Convention being basic standards only do not preclude the Member States from making arrangements for fundamental rights protection that diverge substantively. Experience shows that even a court that is based on international law cannot effortlessly manage such diversity. Numerous decisions give reason to doubt whether the court has complied with this task. 28 Meeting this challenge will continue to require constant effort the vague formula of the margin of appreciation is but a first point of departure. 29 It must be interpreted in a way that includes not only the final and non-delegable evaluation of individual cases but also diverging rules on balancing, burden of proof and precedence that also leave room for different fundamental rights doctrines. It is obvious, however, that the Court is moving in this direction and increasingly seeks to respect the Member States diverse fundamental rights traditions in its decisions. 30 In principle, this is made possible by the international law character of the Convention rights. 26 ECHR art.34; P. Schäfer, in EMRK Konvention zum Schutz der Menschenrechte und Grundfreiheiten (2012), sentence 1, art.34 paras Cf. J. Masing, Unionsbürgerliche Kernrechte? in W. Durner, F.-J. Peine and F. Shirvani (eds), Freiheit und Sicherheit in Deutschland und Europa, Festschrift für Papier (Berlin: Duncker & Humblot, 2013) p.355 at p Cf. B. Björnstjern, Eine Charta für Kriminelle? Zur demokratietheoretischen Kritik am EGMR und dem aktiven Wahlrecht von Strafgefangenen (2013) 51 AVR 339, ; C. Grabenwarter, Schutz der Privatsphäre versus Pressefreiheit: Europäische Korrektur eines deutschen Sonderweges? [2004] AfP 209, 315; M. Hartwig, Der Eigentumsschutz nach Art.1 des 1. Zusatzprotokolls zur EMRK (1999) 63 RabelsZ 561, , with further examples from jurisprudence; T. Haug, Bildberichterstattung über Prominente (Baden-Baden: Nomos, 2011), pp.92 94; Judge Jaeger, dissenting in Axel Springer AG v Germany (2012) 55 E.H.R.R. 6; F. Priet, Note sous l'arrêt CEDH, gr. ch., 29 avril 1999, Chassagnou c/france, reg. no /94 [1999] AJDA J. Masing, Vielfalt nationalen Grundrechtsschutzes und die einheitliche Gewährleistung der EMRK in U. Blaurock, J. Bornkamm, C. Kirchberg (eds), Festschrift für Achim Krämer (Berlin: De Gruyter, 2009), p.60 at p.73; cf. also E. Brems, The Margin of Appreciation Doctrine in the Case-Law of the European Court of Human Rights (1996) 56 ZaöRV 240, See now Lautsi v Italy (2012) 54 E.H.R.R. 3 at [68] [70], contrary to Lautsi v Italy (2010) 50 E.H.R.R. 42 at [144]; see also Von Hannover v Germany II (2012) 55 E.H.R.R. 15 at [104], [118], contrary to Von Hannover v Germany (2005) 40 E.H.R.R. 1; see also Sahin v Turkey (2007) 44 E.H.R.R. 5 at [109]; Folgerø v Norway (2008) 46 E.H.R.R. 47 at [89]; Dogru v France (2009) 49 E.H.R.R. 8 at [71] [74]; A v Ireland (2011) 53 E.H.R.R. 13 at [185], [191]; H v Austria [2012] 2 F.C.R. 291 at [62]; Stübing v Germany (2012) 55 E.H.R.R. 24 at [59] [60]; Koch v Germany (2013) 56 E.H.R.R. 6 at [69] [71]; PETA Deutschland v Germany (2013) 56 E.H.R.R. 25 at [49]; SAS v France (2015) 60 E.H.R.R. 11 at [129], [154] [155].

57 496 European Law Review The relationship between the European Charter of Fundamental Rights and national fundamental rights The relationship between the European Charter of Fundamental Rights on the one hand and the Member States fundamental rights on the other is of a completely different nature at least where the basics are concerned. The Union s fundamental rights are intended to provide protection against legal acts by the EU. In this case, the basic model is not organised in layers but by way of a division: citizens are protected vis-à-vis the Member States by national fundamental rights, while it is the Charter that protects them vis-à-vis the Union. Accordingly, the Charter does not provide mere minimum standards but fully fledged fundamental rights protection. This fact is easily apparent: few other fundamental rights catalogues contain as many guarantees as the Charter. 31 The difference in the aims of the Charter and the Convention also becomes evident in the history of fundamental rights protection on the level of the EU. Fundamental rights at Union level were essential to the 1957 Treaties of Rome. On the basis of international law at the time, it seemed natural to leave it to the Member States to ensure the respect for fundamental rights in the implementation of community law. The need to change this system did not begin to arise until the European Court of Justice proclaimed the precedence of Union law over all national law including the fundamental rights 32 and simultaneously and to a large degree extended the range of provisions that directly apply from regulations to primary law and directives. 33 The reasonable aim of this jurisprudence was that national constitutions should not subvert the unity of Union law. The problem, however, was that in cases concerning definite provisions of Union law, this means that if the EU imposed unified rules the Member States had to apply to without any margin of discretion, there initially was no fundamental rights protection. National fundamental rights could not be applied; European fundamental rights did not exist. Hence, the Federal Constitutional Court s Solange I decision prominently refused to acknowledge the precedence of Union law over the fundamental rights. 34 The Court waited until the European Court of Justice having been incited by the decision had created a European fundamental rights substitute. By a series of judicial decisions, the ECJ created general principles of law that equalled fundamental rights. It was not until this fundamental rights vacuum was thus filled 35 that the Federal Constitutional Court decided to let national fundamental rights protection take a back seat to definite Union law with a reservation for extremely exceptional cases. 36 This is the so-called 31 Cf. for instance: Ehlers, in Europäische Grundrechte und Grundfreiheiten (2014), 14 paras 12 13; T. Oppermann, C. Classen and M. Nettesheim, Europarecht, 6th edn (München: C.H. Beck, 2014), 17 paras Costa v ENEL (6/64) [1964] E.C.R. 585; [1964] C.M.L.R. 425 at [593]; Internationale Handelsgesellschaft v Einfuhr- und Vorratsstelle fur Getreide und Futtermittel (11/70) [1970] E.C.R. 1126; [1972] C.M.L.R. 255 at [3]; Winner Wetten GmbH v Burgermeisterin der Stadt Bergheim (C-409/06) [2010] E.C.R. I-8015; [2011] 1 C.M.L.R. 21 at [61]. 33 Van Gend en Loos v Nederlandse Administratie der Belastingen (26/62) [1963] E.C.R. 1; [1963] C.M.L.R. 105 at [11] [13]; Grad v Finanzamt Traunstein (9/70) [1970] E.C.R. 825; [1971] C.M.L.R. 1 at [5] [10]; Pubblico Ministero v Ratti (148/78) [1979] E.C.R. 1629; [1980] 1 C.M.L.R. 96 at [22] [23]; Becker v Finanzamt Münster-Innenstadt (8/81) [1982] E.C.R. 53; [1982] 1 C.M.L.R. 499 at [27] [30]; indeed from the outset the treaties contained the issue of fundamental rights protection. One could have asked early on whether there was fundamental rights protection vis-à-vis decisions and regulations, which were always intended to be directly applicable. At the time, however, this did not appear to be pressing, owing to the fact that judicial review of fundamental rights violations, especially where economic rights were concerned, was little developed at the time. 34 BVerfGE 37, 271 at 285 Solange I; cf. on this M. Cornils, in J. Menzel (ed.), Verfassungsrechtsprechung (Tübingen: Mohr Siebeck, 2000), pp Cf. H. Rengeling, Grundrechtsschutz in der Europäischen Gemeinschaft (München: C.H. Beck, 1993); Ehlers, in Europäische Grundrechte und Grundfreiheiten (2014), 14 paras 3 4; C. Walter, in Europäische Grundrechte und Grundfreiheiten (2014), 1 paras BVerfGE 73, 339 at 387 (headnote 2) Solange II; BVerfGE 102, 147 at (headnote 2) Bananenmarktordnung.

58 Articles 497 Solange II jurisprudence, which continues to apply today. The model for the relationship between unity and diversity seemed obvious: the European fundamental rights apply to harmonised Union law, while the respective national fundamental rights apply to the various national legal acts. This is the concept of a federally divided protection of fundamental rights. 37 The European Charter of Fundamental Rights was intended to crown this process by providing a catalogue of written fundamental rights 38 for the European division of fundamental rights protection. The relationship between the European Charter of Fundamental Rights and the European Convention on Human Rights Analysing the differences between multi-layered and divided fundamental rights protection also illustrates that it is only logical for the EU to accede to the European Convention on Human Rights. 39 Since the Union being an autonomous entity, endowed with public authority has and needs its own fundamental rights, there is no reason why these rights should not be backed and secured by the Convention s basis standards, even though the European Court of Justice does its best to prevent this from happening. 40 And then, it might even be undesirable to interpret the Charter and the Convention in the same way 41 : like the fundamental rights of the Member States, the Charter can and should in some areas exceed the Convention s guarantees: Why should the Union s fundamental rights not provide more protection than those of Russia or of Turkey? It is also only logical that such an accession would allow individual applications against legal acts of the Union. 42 There is no reason why citizens should have fewer procedural means to challenge legal acts of the Union than to challenge legal acts of its Member States. The Convention is the common foundation of the fundamental rights protection shared by the Union and its Member States; so it permits equal individual legal recourse against them. And this legal recourse no longer leaves room for a privileged 37 The term federal means in reference to the design of federally arranged public decision-making bodies a non-hierarchical collocation of centralised powers on the one hand (and in this respect to a certain extent claiming precedence throughout the territory) and decentralised powers on the other hand. 38 Cf. [2007] OJ C303/2; Oppermann, Classen and Nettesheim, Europarecht, (2014), 17 para TEU art.6(2); ECHR art.59(2); on the accession procedure see W. Obwexer, Der Beitritt der EU zur EMRK: Rechtsgrundlagen, Rechtsfragen und Rechtsfolgen [2012] EuR 115.; J. Polakiewicz, Der Abkommensentwurf über den Beitritt der Europäischen Union zur Europäischen Menschenrechtskonvention [2013] EuGRZ Opinion 2/94 [1996] E.C.R. I-1759; [1996] 2 C.M.L.R. 265; Opinion 2/13 [2014] EU:C:2014:2454; [2015] 2 C.M.L.R On this see Ehlers, in Europäische Grundrechte und Grundfreiheiten (2014), 14 para.29; H. Jarass, in H. Jarass (ed.), Charta der Grundrechte der Europäischen Union, 2nd edn (München: C.H. Beck, 2013), art.52 para.62; cf. also K. Lenaerts, The EU Charter of Fundamental Rights: Scope of application and methods of interpretation in M. D Alessio, V. Kronenberger and V. Placco (eds), De Rome à Lisbonne: les juridictions de l Union européenne à la croisée des chemins (Brussels: Bruylant, 2013), p.107 at pp M. Ruffert, Schlüsselfragen der Europäischen Verfassung der Zukunft, Grundrechte Institutionen Kompetenzen Ratifizierung [2004] EuR 165, 174; J. Vondung, Die Architektur des europäischen Grundrechtsschutzes nach dem Beitritt der EU zur EMRK (Tübingen: Mohr Siebeck, 2012), pp , 225.

59 498 European Law Review assumption in favour of the Union 43 as has previously been the case in the aftermath of the Bosphorus decision. 44 From a fundamental rights vacuum to an excess pressure of fundamental rights Today, the fundamental rights vacuum that used to exist in the EU threatens to be replaced by an excess pressure of fundamental rights 45 : the Union s fundamental rights increasingly claim a field of application that exceeds decisions under Union law and touches upon all levels of decision-making including the national one. Application of the Charter by the Member States The problem lies in the issue of determining when Member States are bound by the Charter. 46 It is clear that the Charter binds not only the organs of the EU itself. The Charter applies to the Member States at least in such cases in which they act more or less as enforcement organs of the Union. This arrangement takes into account that Union law is often enforced not by European but by national authorities of the Member States. It is without doubt that the Charter and only the Charter applies when national authorities implement an unequivocal legal order that is final and definite under Union law. Does the same apply when Member States possess discretionary powers e.g. in implementing directives that leave many decisions to the political preferences of the individual states? Or when Member States 43 Of course, this article cannot cover the corresponding procedural issues that are more than trivial. For instance, the European Court of Justice with good reason demands to be involved in certain of these proceedings. This, of course, requires that any further surge of centralisation caused by such involvement is prevented. Considering that an accession of the Union to the ECHR would require formal amendments of the European treaties and of the European Convention on Human Rights, such an accession is not to be expected in the near future particularly since the latest Opinion of the ECJ on this matter. 44 Bosphorus v Ireland (2006) 42 E.H.R.R. 1 at [154]; on the corresponding debate: J. Bröhmer, Die Bosphorus-Entscheidung des Europäischen Gerichtshofs für Menschenrechte. Der Schutz der Grund- und Menschenrechte in der EU und das Verhältnis zur EMRK [2006] EuZW 71; C. Heer-Reißmann, Straßburg oder Luxemburg? Der EGMR zum Grundrechtsschutz bei Verordnungen der EG in der Rechtssache Bosphorus [2006] NJW 192; N. Lavranos, Das So-Lange-Prinzip im Verhältnis von EGMR und EuGH [2006] EuR P. Huber, Die EU als Herausforderung für das Bundesverfassungsgericht in I. Pernice and R. Schwarz (eds), Europa in der Welt (Baden-Baden: Nomos, 2013), p.329 at p.354; Masing, Unionsbürgerliche Kernrechte? in Freiheit und Sicherheit in Deutschland und Europa, Festschrift für Papier (2013), p Cf. C. Calliess, Europäische Gesetzgebung und nationale Grundrechte Divergenzen in der aktuellen Rechtsprechung von EuGH und BVerfG? [2009] JZ 113; W. Cremer, Der programmierte Verfassungskonflikt: Zur Bindung der Mitgliedsstaaten an die Charta der Grundrechte der Europäischen Union nach dem Konventsentwurf für eine Europäische Verfassung [2003] NVwZ 1452; W. Cremer, Grundrechtsverpflichtete und Grundrechtsdimensionen nach der Charta der Grundrechte der Europäischen Union [2011] EuGRZ 545; T. von Danwitz, Verfassungsrechtliche Herausforderungen in der jüngeren Rechtsprechung des EuGH [2013] EuGRZ 253, ; T. von Danwitz, Aktuelle Entwicklungen im Grundrechtsschutz der Europäischen Union in M. Sachs and H. Siekmann (eds), Der grundrechtsgeprägte Verfassungsstaat, Festschrift für Klaus Stern (Berlin: Duncker & Humblot, 2012), p.669; J. Griebel, Europäische Grundrechte als Prüfungsmaßstab der Verfassungsbeschwerde [2014] DVBl 204; P. Huber, Auslegung und Anwendung der Charta der Grundrechte [2011] NJW 2385; P. Huber, Die EU als Herausforderung für das Bundesverfassungsgericht in Europa in der Welt (2013), p.329 at p.356 et seq.; T. Kingreen, Die Grundrechte des Grundgesetzes im europäischen Grundrechtsföderalismus [2013] JZ 801; F. Kirchhof, Nationale Grundrechte und Unionsgrundrechte [2014] NVwZ 1537; K. Lenaerts, Exploring the Limits of the EU Charter of Fundamental Rights [2012] EuConst 375; K. Lenaerts, Die EU-Grundrechtecharta: Anwendbarkeit und Auslegung [2012] EuR 3; C. Ohler, Grundrechtliche Bindung der Mitgliedsstaaten nach Art. 51 GRCh [2013] NVwZ 1433; A. Rosas, When is the EU Charter of Fundamental Rights applicable at National Level? (2012) 19 Jurisprudence 1269; D. Thym, Anmerkungen zu EuGH, Urteil v , C-400/10 [2011] JZ 148; D. Thym, Die Reichweite der EU-Grundrechte-Charta Zu viel Grundrechtsschutz? [2013] NVwZ, 889; W. Weiß, Grundrechtsschutz durch den EuGH: Tendenzen seit Lissabon [2013] EuZW 287.

60 Articles 499 are entitled to discretionary decisions in pursuit of national interests e.g. in restricting freedoms of the EU? The Charter tries to solve this issue in art.51(1): according to this provision, the Charter is addressed to the Member States only when they are implementing Union law. A federal interpretation An obvious interpretation of this provision would be to generally recognise implementation of Union law only in cases in which the Member States apply definite Union law, i.e. in cases in which the Member States have no discretionary powers. 47 This would limit the Charter to the task that the European Union s fundamental rights were initially intended to fulfil: providing protection where national fundamental rights do not apply owing to the unity and cohesion of Union law. Such an interpretation would constitute a consistent implementation of fundamental rights protection with separate powers that entails a clear alternative: a logical federal model that is not based on hierarchy but on delimitation of powers. Such an interpretation is supported by the provision s wording, its history, the statutory system it is placed in, as well as by its intent. Contrary to earlier drafts, the narrow term implementation was deliberately chosen for art.51(1) of the Charter. 48 This choice was intended to both avoid the term the scope of the Union Law or le champs d application, which appeared to be overly open-ended, and to correspond to the ECJ s terminology on enforcement of regulations. 49 The entire statutory environment, too, reads like a valiant, almost imploring, effort to base the protection of fundamental rights on existing powers instead of on new ones. Only when implementing Union law is the Charter applicable, only in accordance with the respective powers and respecting the limits of the powers of the Union as conferred 47 G. Ziegenhorn, Kontrolle von mitgliedstaatlichen Gesetzen im Anwendungsbereich des Unionsrechts am Maßstab der Unionsgrundrechte [2010] NVwZ 803, ; T. Kingreen, in C. Calliess and M. Ruffert (eds), EUV/AEUV, Das Verfassungsrecht der Europäischen Union mit Europäischer Grundrechtecharta, 4th edn (München: C.H. Beck, 2011), art.51 CFR para.12; cf. similarily, but embedded in another context at that time, S. Augsberg, Von der Solange- zur Soweit-Rechtsprechung: Zum Prüfungsumfang des Bundesverfassungsgerichts bei richtlinienumsetzenden Gesetzen [2010] DÖV 153, ; C. Calliess, Europäische Gesetzgebung und nationale Grundrechte Divergenzen in der aktuellen Rechtsprechung von EuGH und BVerfG? [2009] JZ 113, 120; W. Cremer, Grundrechtsverpflichtete und Grundrechtsdimensionen nach der Charta der Grundrechte der Europäischen Union [2011] EuGRZ 545, ; close to this approach see also G. Britz, Grundrechtsschutz durch das Bundesverfassungsgericht und den Europäischen Gerichtshof, pp.5 7, 9 10, /professuren/britz/mediathek/dateien/grundrechtsschutz-ak-europaisches-verfassungsrecht.pdf [Accessed 7 July 2016]. 48 Cf. the criticism of the broad wording of the initial version: CHARTE 4372/00 Convent 39 of 16 June 2000, in N. Bernsdorff and M. Borowsky (eds), Der Grundrechtekonvent (Hannover: Nomos, 2003), Vol.2, pp ; and the subsequent return to a more narrow formulation: CHARTE 4373/00 Convent 40 of 23 June 2000, p.5, / [Accessed 7 July 2016]; cf. also M. Borowsky, in J. Meyer (ed.), Charta der Grundrechte der Europäischen Union, 4th edn (Baden-Baden: Nomos, 2014), art.51 paras 2 15a: After an intensive debate a deliberately restrictive terminology was chosen. While at first the wording exclusively within the scope of Union law, exclusivement dans le champ d application du droit de L Union, ausschließlich im Anwendungsbereich des Rechts der Union (Charte 4316/00 Convent 2000) was suggested, ultimately the wording only when they are implementing Union law, exclusivement dans la mise en oeuvre du droit de L Union, ausschließlich bei der Durchführung des Rechts der Union was agreed upon. If the wording in other languages is not equally unambiguous particularly in those languages into which the draft versions were not translated and comprises perhaps a term corresponding to the expression application (which is by the way something else than le champ d application or the scope of Union law ), then also these versions should at least be open to a restrictive construction (see in this respect, e.g., the Polish term stosowanie ). The full authenticity of all language versions does not change the fact that the wording needs to be interpreted according to what was meant at the time and thus according to the genesis that is recorded through earlier versions. 49 Cf. Deutsche Milchkontor GmbH v Germany (205/82) [1983] E.C.R. 2633; [1984] 3 C.M.L.R. 586 at [17]; Commission v Germany (C-217/88) [1990] E.C.R. I-2879; [1993] 1 C.M.L.R. 18 at [33].

61 500 European Law Review on it in the Treaties. 50 Additionally, the Charter emphasises in a separate section that it does not extend the field of application of Union law beyond the powers of the Union and does not establish any new power or task for the Union, nor does it modify powers and tasks as defined in the Treaties. 51 This intent is based on a clear-cut statutory aim: protection of fundamental rights is an annex to political decision-making responsibility. The degree of harmonisation within the Union shall be set by passing substantive law on the political level but not by deriving standards from fundamental rights without participation of the political actors. 52 Fundamental rights protection is not intended to have its own harmonising effect. 53 Instead, legal and democratic responsibilities are linked: The applicable fundamental rights obligations depend on the actor who makes the decisions. The interpretation of the European Court of Justice However, this attempt at limiting the Charter was to no avail. The European Court of Justice did not subscribe to such a view and interprets the term implementation in a considerably wider manner. 54 Just how wide has yet to be determined much will depend on how its jurisprudence develops. 55 In any event, the ECJ extends the Charter to some degree to provisions that contain discretionary powers for the member states. Thus, it decided, as if this were self-evident, that when interpreting a directive on alien law the implementation must take due account of the Charter of Fundamental Rights. 56 Soon thereafter it decided 50 Charter of Fundamental Rights art.51(1) sentences 1 and Charter of Fundamental Rights art.51(2). 52 This was supported by the members of the European Convention Friedrich und Goldsmith: cf. Bernsdorff and Borowsky, Die Charta der Grundrechte der Europäischen Union (2002), pp ; cf. also Britz, Grundrechtsschutz durch das Bundesverfassungsgericht und den Europäischen Gerichtshof (2014), p.11, /fbz/fb01/professuren/britz/mediathek/dateien/grundrechtsschutz-ak-europaisches-verfassungsrecht.pdf [Accessed 7 July 2016]; Masing, Unionsbürgerliche Kernrechte? in Freiheit und Sicherheit in Deutschland und Europa (2013), p.355 at pp This seems to have been the initial, rather clarifying and safeguarding purpose of art.53 of the Charter of Fundamental Rights. However, the meaning of this provision is indeed not completely unambiguous in its context. One might read it contrary to the construction that is presented in this article as if it presupposes a potential overlap of Member State and EU fundamental rights protection; but, if one understands the provision in this sense, then it precisely possesses a content that is defensive towards Union law implying the subordination of Union law protection under national fundamental rights protection, thus challenging the primacy of Union law. To avoid this hardly plausible outcome, the provision is commonly understood to rather emphasise the delimitation of spheres (cf. only Kingreen in EUV/AEUV, Das Verfassungsrecht der Europäischen Union mit Europäischer Grundrechtecharta (2011), art.53 CFREU para.6). In any event no argument follows for a unifying fundamental rights protection. Instead, it is clear that it aims to preserve some autonomy for Member States fundamental rights provisions vis-à-vis Union law. Following the difficult problems that have been generated by case law, it may play an important part today (see below pp ). 54 Chakroun v Minister van Buitenlandse Zaken (C-578/08) [2010] E.C.R. I-1839; [2010] 3 C.M.L.R. 5 at [43] [44]; R. (on the application of NS) v Secretary of State for the Home Department (C-411/10, C-493/10) [2011] E.C.R. I-13905; [2012] 2 C.M.L.R. 9 at [64] [69]; Aklagaren v Fransson (C-617/10) EU:C:2013:105; [2013] 2 C.M.L.R. 46 at [21] [31]; Association de médiation sociale v Union locale des syndicats CGT (C-176/12) EU:C:2014:2; [2014] 2 C.M.L.R. 41 at [42] [43]. 55 Cf. for instance the following decisions of the ECJ that employ varying arguments: Iida v Stadt Ulm (C-40/11) EU:C:2012:691; [2013] 1 C.M.L.R. 47 at [79] [81]; and Fransson (C-617/10) EU:C:2013:105 at [17] [19]; also the following quite differently accentuated publications of judges of the ECJ: T. von Danwitz, Verfassungsrechtliche Herausforderungen in der jüngeren Rechtsprechung des EuGH [2013] EuGRZ 253, ; T. von Danwitz and K. Paraschas, A Fresh Start for the Charter: Fundamental Questions on the Application of the European Charter of Fundamental Rights (2012) 35 F.I.L.J. 1396, ; K. Lenaerts Die EU-Grundrechtecharta: Anwendbarkeit und Auslegung [2012] EuR 3; Rosas, When is the EU Charter of Fundamental Rights applicable at National Level? (2012) 19 Jurisprudence Chakroun (C-578/08) [2010] E.C.R. I-1839 at [43] [44].

62 Articles 501 that the discretionary powers conferred on the Member States by a regulation on asylum law could be limited by the Charter s fundamental rights. 57 In doing so, the ECJ can, indeed, rely on its previous jurisprudence on general principles of law. It did not limit the field of application of these principles to binding Union law either. 58 Instead, it had long since also applied them as standards for using discretionary powers and had required they be respected even in cases in which states only restricted freedoms of the EU. 59 The European Court of Justice is of the opinion that this jurisprudence also applies to the Charter of Fundamental Rights. This notion is indeed supported at least by explanations that were added to the Charter and that under art.52(7) of the Charter must be given due regard in interpreting it. 60 It is true that these explanations bring a certain ambiguity into the otherwise clear provision of art.51(1) of the Charter. This ambiguity begins with their legal status. They are expressly referred to as being not binding but at the same time they shall be taken into consideration. However, it is also their content that shows a certain ambiguity. It is obvious that the explanations, which were subsequently added by the administration of the Presidency and are worded in a vague manner, are intended to correct the narrow wording of the provision. It is safe to assume that the resulting consequences as well as the tension between art.51(1) of the Charter and the jurisprudence of the ECJ were completely understood only by a few close observers. 61 Considering the limited importance that had previously been accorded to general principles of law being case law this fact hardly surprises. To be sure, regarding particular cases this line of jurisprudence had already at the time gained some attention and the way it had been extended raised concerns. 62 However, the general potential of a system of fundamental rights protection under Union law that could systematically provide a binding background for national fundamental rights was even in Union law scholarship understood merely by a few; it might even not have been intended by the ECJ itself, at least not initially. At any rate, there is no such indication in the decisions. They tried on a very limited scale and rather with a view to achieving results to patch holes in fundamental rights protection and practically never claimed precedence over national fundamental rights or even contradicted them. What consequences this kind of jurisprudence may have if taken from its context and used to systematically determine the Charter s field of application is evidenced by the ECJ s 2013 decision in Fransson. 63 This decision declares the application of the general national in that case Swedish law on 57 NS (C-411/10, C-493/10) [2011] E.C.R. I at [64] [69]. 58 Wachauf v Germany (C5/88) [1989] E.C.R. 2609; [1991] 1 C.M.L.R. 328 at [19]; Booker Aquaculture Ltd v Scottish Ministers (C-20/00, C-64/00) [2003] E.C.R. I-7411; [2003] 3 C.M.L.R. 6 at [88] [92]; Parliament v Council (C-540/03) [2006] E.C.R. I-5769; [2006] 3 C.M.L.R. 28 at [104] [105]. 59 ERT v DEP (C-260/89) [1991] E.C.R. I-2925; [1994] 4 C.M.L.R. 540 at [42] [44]. 60 See also art.6(1) subs.3 TEU; cf. DEB v Germany (C-279/09) [2010] E.C.R. I-13849; [2011] 2 C.M.L.R. 21 at [32]; cf. also U. Becker, in J. Schwarze and H. Armin (eds), EU-Kommentar, 3rd edn (Baden-Baden: Nomos, 2012), art.52 para.21; M. Borowsky, in Charta der Grundrechte der Europäischen Union (2014), art.52 paras 47 47b.; Von Danwitz and Paraschas, A Fresh Start for the Charter (2012) 35 F.I.L.J. 1396, Cf. Huber, Die EU als Herausforderung für das Bundesverfassungsgericht in Europa in der Welt (2013), p.329 at p Cf. G. Britz, Bedeutung der EMRK für nationale Verwaltungsgerichte und Behörden Erweiterte Bindungswirkung nach EuGH, Slg. 2002, I-6279 Carpenter? [2004] NVwZ 173; G. Britz, Europäisierung des grundrechtlichen Datenschutzes? [2009] EuGRZ 1, 4 5; W. Cremer, Der programmierte Verfassungskonflikt: Zur Bindung der Mitgliedstaaten an die Charta der Grundrechte der Europäischen Union nach dem Konventsentwurf für eine Europäische Verfassung [2003] NVwZ 1452; U. Mager, Anm. zu EuGH, Urteil vom , Rs. C-60/00 (Carpenter) [2003] JZ 202, 204; M. Ruffert, Die künftige Rolle des EuGH im europäischen Grundrechtsschutzsystem [2004] EuGRZ 466, Fransson (C-617/10) EU:C:2013:105; cf. the previous reviews by G. Dannecker [2013] JZ 616; K. Eckstein [2013] ZIS 220; F. Fontanelli [2013] EuConst 315; R. Geiß [2014] DÖV 265; O. Gstrein and S. Zeitzmann (2013) 16 ZEuS 239, 247; S. Kadelbach (2013) 96 KritV 276; T. Kingreen [2013] EuR 446; F. Lange [2014] NVwZ 169;

63 502 European Law Review tax evasion to constitute an act of implementing Union law since the Member States are required under Union law to ensure that such taxes are collected and accordingly the Union s financial interests are indirectly affected. Such logic knows few boundaries. If one applies a broad interpretation to this decision, there remain close to no measures that cannot be conceived of as implementing Union law including decisions to purchase CD-ROMs with illegally obtained tax information or decisions on who to hire, and according to which standards, to collect taxes. 64 The Federal Constitutional Court of Germany has seen the need to urge caution: if one were to generalise this decision into meaning that any substantive link a provision may have to the merely abstract field of application of Union law can suffice, this would overextend the Charter and would constitute an ultra vires act or a violation of the identity of the German constitutional order and would as such not be acceptable. 65 This reaction shows that such an interpretation faces deep concerns. The call for a common fundamental rights status under Union law Such concerns are not exaggerated. For in legal scholarship, but also at the Court, there are express calls for such an extension. During the Zambrano proceedings, for instance, A.G. Sharpston openly and with much pathos called for making the European fundamental rights the basis for a common fundamental rights status for all of the Union s citizens: civis europaeus sum accordingly, everyone should have the same fundamental rights no matter where. This line of argument was particularly audacious since the proceedings in question did not directly concern the Charter of Fundamental Rights but rather citizenship of the EU. Sharpston advocated deriving the fundamental rights from the mere status of citizen of the EU. This would permit evading art.51 of the Charter. 66 We have to emphasise, however, that this is not the position of the European Court of Justice itself. On the contrary: if one takes account of the whole of its jurisprudence, the question of where it will lead remains open. Particularly in recent jurisprudence there are decisions that are evidently narrower 67 and quite often the Charter is declared inapplicable a limine. 68 In practically all of these cases the Court would H.-J. Rabe [2013] NJW 1407; J.-H. Reestman, L. Besselink [2013] EuConst 169; D. Thym [2013] NVwZ 889; R. Winter [2013] NZA E. Frenzel, Die Charta der Grundrechte als Maßstab für mitgliedstaatliches Handeln (2014) 53 Der Staat 1, BVerfGE 133, 277 at Opinion of A.G. Sharpston in Zambrano v ONEm (C-34/09) [2011] E.C.R. I-1177; [2011] 2 C.M.L.R. 46 at [83] [84]; cf. on this: Masing, Unionsbürgerliche Kernrechte? in Freiheit und Sicherheit in Deutschland und Europa (2013), p.355 at pp However, one has to concede that A.G. Sharpston ultimately describes her proposition to already attach European fundamental rights protection to Union citizenship and in general to the merely abstract competence of the Union as in the end premature instead basing her conclusion on an utterly broad understanding of the term link to Union law in the respective case that lastly also has hardly any limits (contradicting not only the assessments of all Member States involved in the proceeding but also of the Commission). Her caution regarding the comprehensive solution which she evidently favours, and her reference to a political statement of the Member States required for this solution (whichever legal form may be meant by this) appear at least half-hearted: at least she unfurls the comprehensive solution across several paragraphs as a proposal, and the Opinion concludes that the Court should not overtly anticipate a change, but that (sooner rather than later) the Court will have to choose between keeping pace with an evolving situation or lagging behind legislative and political developments that have already taken place (at [177]). Here, the pleading character is barely concealed. (One may of course hold the opinion that a court lagging behind legislative and political developments, i.e. being tied to them, should be the regular case.) 67 Cf. for instance Iida (C-40/11) EU:C:2012:69 at [79] [81]; Ymeraga v Ministre du Travail, de l Emploi et de l Immigration (C-87/12) EU:C:2013:291; [2013] 3 C.M.L.R. 33 at [41]; Siragusa v Regione Sicilia (C-206/13) EU:C:2014:126; [2014] 3 C.M.L.R. 13 at [24] [30]; Julian Hernández v Spain (C-198/13) EU:C:2014:2055; [2014] All E.R. (EC) 971 at [34] [37]; Annibaldi v Sindaco del Comune di Guidonia (C-309/96) [1997] E.C.R. I-7493; [1998] 2 C.M.L.R. 187 at [21] [22]. 68 See for instance Cholakova v Osmo rayonno upravlenie pri Stolichna direktsia na vatreshnite (C-14/13) EU:C:2013:374 at [28] [31]; Nagy v Hajdú-Bihar Megyei Kormányhivatal (C-488/12) EU:C:2013:703 at [16]; SC

64 Articles 503 have been able to argue applicability of the Charter. Almost every one of these cases has points of contact with Union law. But the Court did not. The search for exact criteria obviously continues. Sharpston s proposal at least was not successful with the ECJ. Thus, this article seeks not to generally criticise the ECJ s jurisprudence on fundamental rights but is an attempt at supporting its constructive evolution. Therefore, precisely delimiting the various levels of fundamental rights will remain an essential and further unresolved challenge for the future. Resolving this issue will require that the actors involved do not tackle it with clear-cut adversarial concepts of European v national or Federal Constitutional Court v European Court of Justice, but with a view to achieving a good balance between federal cohesion and diversity. A difficult path Before looking at possible perspectives, we will first analyse the difficulties posed by the wide interpretation of art.51(1) of the Charter. For these are the difficulties to overcome. Threefold division of fundamental rights protection on the horizontal level One of the first difficulties concerns the basic relationship between Union law and national fundamental rights: if the European fundamental rights also apply when Member States dispose of discretionary powers, they do not replace the constitutional fundamental rights but stand beside them. For if provisions are concerned in legal fields where Union law provides for diversity, there is no reason why the Member States fundamental rights should not apply, at least in a supplementary role. By now, the ECJ has expressly recognised this result: provided that the Charter s level of protection is not affected, national authorities and courts remain free to apply national standards of protection of fundamental rights. 69 This, of course, creates a completely new basic relationship: now for European fundamental rights, too, protection no longer is strictly divided but may be multi-layered. However, this relationship of multiple layers does not always apply between European and national fundamental rights protection. It applies only where the implementation of Union law involves discretionary powers. Thus, fundamental rights protection at this level is threefold: exclusive fundamental rights protection by the Union if no discretionary powers are involved; exclusive fundamental rights protection by the Member States if acts cannot be regarded as implementing Union law; and concurrent protection on both levels if acts must be regarded as implementing Union law but make use of discretionary powers. Under this system, the fundamental rights are no longer clearly juxtaposed in a federal way but overlap in part. 70 It is obvious that this system creates problems of delimitation and raises questions concerning the relationships between the various fundamental rights. Three vertical layers in the area of concurrent fundamental rights protection Creating an area of overlap i.e. acknowledging concurrent fundamental rights protection causes an increase in complexity. Since taking into account the European Convention on Human Rights, there are now three layers in a vertical sense as well. We have to distinguish three different levels of protection: the Convention as a minimum guarantee, the Charter as a broader framework in Union law, and national fundamental rights protection on top. It is with what leeway remains that we expect the legislature to show Schuster & Co Ecologic v Direcţia Generală a Finanţelor Publice a Judeţului Sibiu (C-371/13) EU:C:2013:748 at [16] et seq.; Criminal proceedings against Lorrai (C-224/13) EU:C:2013:750 at [11] [14]; Sociedade Agrícola e Imobiliária da Quinta de S. Paio v Instituto da Segurança Social IP (C-258/13) EU:C:2013:810 at [21]. 69 Fransson (C-617/10) EU:C:2013:105 at [29]; Melloni v Ministerio Fiscal (C-399/11) EU:C:2013:107; [2013] 2 C.M.L.R. 43 at [60]. 70 Cf. also: Kingreen, Die Grundrechte des Grundgesetzes im europäischen Grundrechtsföderalismus [2013] JZ 801, 806; Borowsky, in Charta der Grundrechte der Europäischen Union (2014), Vor Titel 7 para.24.

65 504 European Law Review political impetus and to make decisions that are systematically consistent. It is obvious that this will lead to considerable friction. Since fundamental rights protection essentially aims at guaranteeing universal liberties and rights that for a good reason are conceived of as being independent of the state, one will only rarely be able to base interpretation and differentiations on differences between the various levels that have intentionally been created for reasons of constitutional politics. The principle that guides the relationships between the individual levels under the multi-layered system can rather only be more or less, extensive or less extensive, or minimum protection or full protection. These criteria are extremely vague and do not permit specific differentiations that are to be expected. Moreover, more often is difficult to justify. For instance, the Member States right to provide more extensive fundamental rights protection will often be ineffective since it no longer easily fits into the framing distinctions and lines of arguments established by European fundamental rights protection. 71 This holds especially true since any such protection must now take into account not only requirements of international law that are limited to prescribing results but also Union law, which claims precedence over national law and is binding also in its reasoning. The flexibility that the European Convention on Human Rights being part of international law provides for dealing with difficulties does not exist here. 72 This becomes particularly difficult in situations that, as is often the case, require balancing multiple fundamental rights. For more fundamental rights protection in one case means less protection in the other. 73 Such a layered model that is dependent on three different court systems that may have to decide the same cases threatens to overburden the institutions involved. 71 Some examples: if preventive detention, as a not guilt-based, preventive police measure, is considered to be a punishment in view of the principle of non-retroactivity by European jurisprudence, and if national jurisprudence is bound by this definition, it will be difficult to adhere to the principle of guilt as an element of punishment that is grounded in human dignity (meanwhile, the ECHR leaves room for different doctrinal approaches; such room would not exist within the Charter). Likewise, if on the European level, state-owned enterprises are awarded full fundamental rights protection with binding effect, it would be difficult to grant private citizens a stronger fundamental rights protection vis-à-vis these enterprises than vis-à-vis privately owned enterprises (e.g. in the exercise of freedom of speech and assembly in public areas that were created by these enterprises). It would be equally problematic if on a hypothetical basis terms such as conscience, assembly, art were specified by definitions in European jurisprudence, whose criteria are narrower than and possibly of a different nature from those that result in more extensive fundamental rights protection. To define, e.g., the term art twice on the basis of entirely different criteria may not be completely precluded in theory but is hardly tenable in practice. The same applies if citizens freedoms that are guaranteed under the European Charter of Fundamental Rights conflict with a fundamental right to security (art 6 CFREU) a not unobjectionably delineated authorisation to infringe freedom provisions that is unknown in many other fundamental rights systems. It would be hard to justify national restrictions on security agencies that are tighter than those under European law. 72 For instance, the ECtHR s requirements concerning exemptions from obligations to hunt that owners of property may request for conscientious reasons (cf. Herrmann v Germany (2013) 56 E.H.R.R. 7) can be implemented by common statute without generally questioning the rules on public utility of property; according to the Charter, this would not be a suitable solution. German jurisprudence furthermore did not have to adopt the ECtHR s understanding of preventive detention constituting a form of punishment but could implement the corresponding requirements in another way (cf. BVerfGE 128, 326 at with further source); this, too, would very probably not be possible on the basis of a harmonised fundamental rights jurisprudence. 73 Cf. G. Lübbe-Wolff, L affaire Görgülü (2007), pp.9 10, [Accessed 7 July 2016]; Masing, Vielfalt nationalen Grundrechtsschutzes und die einheitliche Gewährleistung der EMRK in Festschrift für Achim Krämer (2009), p.60 at p.70; for German law, see R. Wahl and J. Masing, Schutz durch Eingriff [1990] JZ 553,

66 Articles 505 Basic protection or full protection of fundamental rights The relationship between basic protection and full protection of fundamental rights poses a further problem of concurrent fundamental rights protection: to the extent that the Union s fundamental rights leave room for national fundamental rights, they are conceived as framework, i.e. (similar to the ECHR) as minimum standards. On the other hand, when it comes to their main purpose of protecting against legal acts of the Union s organs, they shall provide full and final fundamental rights protection. This creates tension 74 : either the ECJ creates ambitious fundamental rights protection vis-à-vis the Union, and by doing so advances the harmonising tutelage of the Member States, or it protects the Member States and imposes only limited requirements concerning fundamental rights that would, however, result in weak fundamental rights protection vis-à-vis the EU. Thus the ECJ falls between two stools. A third path would be to develop double standards. However, that would clearly illustrate the weakness of the general approach. Difficulties of procedural law Concurrent fundamental rights protection also entails difficulties of procedural law. 75 Regular courts may be required to refer cases to two different superior courts before they can decide. This alone results in considerable delays and, thus, drawbacks in legal protection. What is more, the current criteria for determining whether cases need to be referred to a superior court are not suited to facing the challenges of concurrent fundamental rights protection. For if one were to strictly apply the criteria of the acte clair jurisprudence, regular courts would be required to refer cases if there were the mere possibility that European fundamental rights apply, as well as the mere possibility that this could affect the case in question. If one took this seriously and applied these standards to individual balancing acts e.g. in press law, asylum law or data protection law this would surely render the system ineffective. One might argue that, as has always been the case to date, court practice will find pragmatic solutions and that the ECJ will leave determinations in individual cases to the regular courts. 76 However, it is already in principle doubtful whether developing such pragmatism that may quickly lead to ambiguity can be a viable solution. In any event, one must take into account that, owing to their open-ended character that influences regular law in a general way, fundamental rights issues also often arise as individual questions and that, accordingly, the issue is presented in a new dimension. 77 These difficulties also become evident in constitutional procedural law. One thing is clear: the German Solange II jurisprudence, which normally leads to abstention from national fundamental rights control, 74 Masing, Unionsbürgerliche Kernrechte? in Freiheit und Sicherheit in Deutschland und Europa (2013), p.355 at p.371; cf. the early source of A. von Bogdandy, Grundrechtsgemeinschaft als Integrationsziel? Grundrechte und das Wesen der Europäischen Union [2001] JZ 157, Cf. for instance: Kingreen, Die Grundrechte des Grundgesetzes im europäischen Grundrechtsföderalismus [2013] JZ 801, 809; C. Thiemann, Verfassungsbeschwerde und konkrete Normenkontrolle im Lichte des Unionsrechts [2012] JURA 902, Cf. for instance Omega Spielhallen- und Automatenaufstellungs GmbH v Bundesstadt Bonn (C-36/02) [2004] E.C.R. I-9609; [2005] 1 C.M.L.R. 5 at [30]; and Sayn-Wittgenstein v Landeshauptmann von Wien (C-208/09) [2010] E.C.R. I-13693; [2011] 2 C.M.L.R. 28 at [91], in which the ECJ acknowledged discretionary powers on the part of the Member State; see also Proceedings against Melki (C-188/10) [2010] E.C.R. I-5667; [2011] 3 C.M.L.R. 45 at [57], in which the ECJ merely set out general guidelines on conformity of the question prioritaire de constitutionnalité with Union law. 77 Thus, in view of the jurisprudence of the ECtHR and the Federal Constitutional Court (e.g. when it comes to balancing the freedom of press and the right to privacy almost any proceedings could be subject to referral owing to the open-ended character of such cases), it is obvious that no one desires such a result. For the general problem, cf. B. Wegener, in EUV/AEUV, Das Verfassungsrecht der Europäischen Union mit Europäischer Grundrechtecharta (2011), art.267 TFEU para.32; Opinion of A.G. Jacobs in Wiener SI GmbH v Hauptzollamt Emmerich (C-338/95) [1997] E.C.R. I-6495; [1998] 1 C.M.L.R at [60] [63].

67 506 European Law Review as well as the corresponding jurisprudence of other Member States, do not apply in the area of overlap between European and national fundamental rights. Everything else remains unclear. Much depends on how one perceives the constitutional court s standard of review: if review is limited to national fundamental rights, one might argue that concurrent European fundamental rights protection in principle is not relevant to the decision. In that case, decisions would be made on the condition that nothing else results from European fundamental rights which would remain for the ECJ to decide, possibly upon referral by the regular courts. It would, however, also be conceivable to allow review on the basis of fundamental rights only in cases in which there are no apparent conflicts with European fundamental rights. It would be possible to narrowly delineate the term conflict and to restrict it to cases in which national fundamental rights require something that European fundamental rights prohibit (or vice versa); that would limit the need for referrals. For this would exclude cases in which national protection of fundamental rights simply exceeds the protection offered by the European system or provides less protection. Conversely, however, one could also regard it as constituting a conflict when national fundamental rights allow something that European fundamental rights prohibit; such a notion would conceive of national fundamental rights as an instrument that may not provide less protection than the European fundamental rights. Such a concept would require far more referrals. As a last possibility, one could also require the constitutional court to refer any unresolved legal issues to the ECJ in order to determine the scope of their margin of appreciation. If in such cases the mere possibility of the Charter being applicable suffices, the constitutional court like the regular courts would be required to refer almost every single case. Perspectives The second-best path Therefore, the approach of the European Court of Justice is not really convincing at least it creates considerable difficulties. We have to admit, however, that in some scenarios there are good reasons for an interpretation according to which the European fundamental rights bind the Member States even in cases in which they have discretionary powers. 78 This becomes particularly clear in cases in which the Member States have mere administrative leeway. If the basic political decisions on a particular subject-matter are predetermined by Union law and discretionary powers serve merely to provide national administrations with the possibility of implementing these decisions in a flexible manner, it is highly plausible to consider such discretionary powers as implementing Union law. In that case, it is also consistent that there cannot be any differentiation along the lines of whether it is the administration itself or the legislature that uses these discretionary powers since this may also vary from Member State to Member State. In cases, for instance, that like the Wachauf decision concern the implementation of the milk quota, which is governed by Union law in great detail, there are certain advantages to requiring the Member States to respect the Charter of Fundamental Rights, even if they possess discretionary powers. 79 This could similarly be argued for discretionary powers in implementing directives if and to the extent that these directives only permit the Member States to implement and integrate into their system regulatory concepts the content of which has essentially already been decided on 80 ; and similarly maybe even for restrictions on the fundamental freedoms of the EU to the extent that the fundamental rights merely mirror or further define and distinguish the obligations resulting from these freedoms. The ECJ has been right 78 Cf. on this: Ehlers, in Europäische Grundrechte und Grundfreiheiten (2014), 14 para.74; Jarass, in Charta der Grundrechte der Europäischen Union (2013), art.51 para.23; J. Kühling, in A. von Bogdandy and J. Bast (eds), Europäisches Verfassungsrecht, 2nd edn (Berlin, Heidelberg: Springer, 2009), p.657 at pp Wachauf (C-5/88) [1989] E.C.R at [19]. 80 Such was the situation in Caballero v Fondo de Garantia Salarial (FOGASA) (C-442/00) [2002] E.C.R. I-11915; [2003] I.R.L.R. 115 at [29] [31]

68 Articles 507 to determine the applicability of the fundamental rights on the basis of requirements of fundamental freedom restrictions; in doing so it honours the Charter s approach that it is not the fundamental rights but substantive law or primary law that determine the degree of harmonisation. 81 If alone for the ambivalence that art.52(7) of the Charter and the explanations add to the text of the treaty, one will not be able to refuse to consider the ECJ s basic approach. Under practical considerations, one will have to search for solutions of the second-best path, i.e. by acknowledging an area of overlap and thereby accepting the jurisprudence of the ECJ. 82 Challenges on two levels This is not the right place to suggest detailed solutions and lines of delimitation. However, I shall illustrate that solutions must be searched on two levels at the same time. Substantive criteria for the term implementation in Article 51(1) of the Charter To begin with, it is important to contain as much as possible the area of concurrent fundamental rights protection with its difficulties and to make the term implementation in Union law dependent on requirements that are strict in terms of content. Partially acknowledging an area of overlap may not lure us into looking for solutions only on the level of concurrent fundamental rights protection and into ignoring the general limits of the Charter s field of application. This also corresponds to the jurisprudence of the ECJ. It is not long since it was decided that any point of contact with Union law, with a directive or with the freedoms of the EU suffices to make the Charter applicable. The decisions were made in very specific contexts and the large number of decisions in which the ECJ does not apply the Charter show that the boundaries must still be taken seriously. It is the task of legal scholarship and jurisprudence on all levels to develop constructive new ideas. Therefore, it is not helpful to engage in discussions of whether restrictions on the freedoms of the EU or the implementation of directives render the Charter applicable. What is needed, rather, is a discussion on when this happens. In this respect, jurisprudence is still searching and needs impulses that are more than positivist repetitions of past decisions. The basic federal principle, which is in principle also recognised by the ECJ, 83 continues to provide for divided fundamental rights protection. The Charter of Fundamental Rights deliberately does not create a common fundamental rights status for the civis europaeus. 84 This is not only the heuristic point of departure but must also instruct the way the Charter is applied in practice. The approach that Member States implement Union law only if they are predetermined in their actions by substantive European law or if they perform specific obligations may serve as an impulse and one that is in need of further definition for further attempts at delimitation. To this end, one could also refer to the protective aim of this substantive law and 81 Proceedings brought by Pfleger (C-390/12) EU:C:2014:281; [2014] 3 C.M.L.R. 47 at [30] [36]; in the end also ERT (C-260/89) [1991] E.C.R. I-2951 at [42] [43]. 82 This is also the conclusion ultimately reached by the majority of German legal scholars; cf. for instance Frenzel, Die Charta der Grundrechte als Maßstab für mitgliedstaatliches Handeln (2014) 53 Der Staat 1, ; Kingreen, Die Grundrechte des Grundgesetzes im europäischen Grundrechtsföderalismus [2013] JZ 801, Cf. for instance McB v LE (C-400/10 PPU) [2010] E.C.R. I-8965; [2011] Fam. 364 at [51] [52]; Dereci v Bundesministerium für Inneres (C-256/11) [2011] E.C.R. I-11315; [2012] 1 C.M.L.R. 45 at [71]; Iida (C-40/11) EU:C:2012:69 at [78]; in its wording, however not in its practical results, even Fransson (C-617/10) EU:C:2013:105 at [29]. 84 Kühling, in Europäisches Verfassungsrecht (2009), p.685. By contrast, developing the suggestive term civis europaeus, see Opinion of A.G. Jacobs in Konstantinidis v Stadt Altensteig-Standesamt (C-168/91) [1993] E.C.R. I-1191; [1993] 3 C.M.L.R. 401 at [46]; K. Lenaerts, Civis europaeus sum : from the cross-border link to the status of citizen of the Union (2011) 3 Online Journal on free movement of workers within the European Union 13; Opinion of A.G. Sharpston in Zambrano (C-34/09) [2011] E.C.R. I-1177 at [83] [84].

69 508 European Law Review to the degree to which harmonisation is intended. Vague effects on the fundamental freedoms of the EU or on general aims of the Union do not suffice. Only in cases in which state measures put into action a politically defined legal programme is Union law implemented. One must respect the connection between political responsibility and legal responsibility under the rule of law. It is substantive law, not the fundamental rights that determines the degree of legal harmonisation within the EU. Designing concurrent fundamental rights protection in a spirit of diversity On the other hand, national fundamental rights must retain a substantial place even in the area of concurrent fundamental rights protection as well. To the extent that the Charter is applied to discretionary powers and thereby to areas in which it pertains primarily to the Member States to achieve justice in individual cases and to choose legal designs it is only logical if the Member States are primarily responsible for ensuring fundamental rights protection. As with the way discretionary powers are used, the Member States should have the first option though first option does not mean precedence. Considering the common basis in the European Convention on Human Rights, it might be safe to acknowledge a (rebuttable) presumption that this protection covers the protection provided by the Charter. Accordingly, there is much to argue that fundamental rights protection by Member States in principle is not subject to review by the European Court of Justice unless there are qualified reasons for believing that this national protection is insufficient in a general manner. 85 This must then of course be mirrored in a specific wording of the duties of referral. Referral cannot be obligatory whenever a national fundamental rights conflict could be rephrased to concern European law. Article 53 of the European Charter on Fundamental Rights can also provide solutions for the area of overlap between European and national fundamental rights protection. Contrary to what applies for the area of binding European law, in which as in the Melloni case 86 uniform rules claim final and authoritative effect, in the area of concurrent fundamental rights protection, in which Union law itself provides for diversity, there are no concerns against art.53 of the Charter permitting the Member States to institute more extensive fundamental rights protection. This has already been acknowledged by the ECJ in the case of Jeremy F. 87 This could be extended to scenarios in which fundamental rights conflicts e.g. between press law and personality law are resolved in different ways. If a legal system accorded precedence to one of the two when balancing fundamental rights, this would under art.53 of the Charter also be valid considering the balancing according to the Charter. Outside the unity of European law there may also be diversity when resolving fundamental rights conflicts. If one opens the area of concurrent fundamental rights protection in this manner to accommodate diversity, one can resolve many of the difficulties mentioned above. Such an approach would also ensure that fundamental rights conflicts are first tackled on the national level before coming before the ECJ. The decision on data retention has shown that it can be advantageous to be able to rely on such extensive experience. 85 This proposal is deliberately not termed a reverse Solange assumption in order to prevent confusion with the model of the Max Planck Institute in Heidelberg: the proposal elaborated there concerns a different issue and aims in the opposite direction. The MPI s model involves an extension of the Charter that transcends its boundaries in its art.51(1); according to the MPI, the Charter s boundaries should apply only as long as the Member States otherwise provide effective fundamental rights protection: cf. on this A. von Bogdandy et al., Ein Rettungsschirm für europäische Grundrechte [2012] ZaöRV Melloni (C-399/11) EU:C:2013: F v Premier ministre (C-168/13 PPU) EU:C:2013:358; [2014] 2 C.M.L.R. 19.

70 Articles 509 Federal diversity of European fundamental rights protection However, European fundamental rights protection should not be reduced to issues of interpretation. One must take a step back in order to comprehend its complete dimensions: is not more fundamental rights protection always desirable? Indeed the solemn declarations contained in the European Charter of Human Rights in practice often develop a suggestive force that makes any federal objections appear as narrow-minded criticism or as institutional trench warfare. Yet, one must beware of attributions of powers by pathos particularly if they are used by elite circles to promote developments that bypass the political process. Creating a comprehensive fundamental rights status is a major step towards centralisation. Political leeway is pre-structured by a network of harmonised European requirements for conflict evaluation and balancing that easily forgets specific historic experience as well as the essential traditional regulatory concepts and sensibilities of civil society. Creating centralised fundamental rights protection has always led to extensive harmonisation be it in the US or in Germany. In Germany, such efforts have led to subject-matters falling under the legislative competence of the Länder, such as public safety law, the law of assembly, data protection law, press law or university law, to be widely harmonised. While it is the Länder which make the laws in these areas, the laws are more or less all the same owing to the influence of federal jurisprudence. Is such harmonisation desirable in Europe? Is it really appropriate to subject rules on abortion, stem cell research or on the way public broadcasting or universities are organised to the same constitutional requirements in all Member States? If I recall how decisions evoked political emotions in Germany for allowing a public statement saying soldiers are murderers, prohibiting a decree that required exhibition of a crucifix in public schools, or cancelling the Pendlerpauschale (i.e. fixed-rate tax reductions for commuters), I doubt that this is a good idea for Europe. This is even truer if one considers the consequences that such a centralistic and hierarchical model would have on the details of fundamental rights protection, such as on the requirements concerning legal review in cases of seizures, on plea bargains in criminal law, on balancing the freedom of press and the right to privacy, on exemptions from inheritance tax for companies, on denying child custody to parents, or on guarantees for banks. This cannot be countered by the argument that since the European Convention on Human Rights also establishes a common fundamental rights status no further surge of harmonisation is to be expected. Indeed, the Convention to a certain degree narrows the gap between the legal systems and that is reasonable. However, being a treaty under international law, it does not itself directly affect the legal systems but leaves implementation to the Member States, permitting diversity. It does not set directly applicable rules but merely requires that results be achieved, which may be implemented in various ways, be it by the legislature, by the administration or by the courts. Being a requirement under international law, it leaves considerably more space for diverse solutions and even here this can be rather difficult in practice. However, it results from the sheer number and diversity of its Member States that the Convention on Human Rights must be considerably open to diversity in fundamental rights tendencies towards excessive harmonisation are likely to be frustrated vis-à-vis 47 states that include inter alia Russia and Turkey. The number of 56,000 proceedings brought before the ECtHR each year proves this point. 88 Of course the EU needs extensive fundamental rights protection beyond the basic standards of international law, and that is what the Charter of Fundamental Rights is for. However, stripping the Charter of its federal character and transforming it into the all-encompassing common basis of the Member States legal systems appears sinister considering the diversity in fundamental rights protection in Europe. The basic understandings of law and politics and of the relationship between courts and political organs alone differ considerably. The UK, which as a matter of principle does not acknowledge constitutional law as 88 See [Accessed 7 July 2016].

71 510 European Law Review having precedence over statutory law 89 and which regards review of parliamentary decisions by a constitutional court as something alien, may serve as contrast to the highly legalised requirements for legislation in Germany. Even apart from fundamental right issues, judicial review of acts of the administration by regular courts struggles in some fields of law to go beyond the Wednesbury test e.g. vis-à-vis public security authorities, i.e. in an area in which effective fundamental rights protection appears to be particularly important in a German perspective 90 ; courts continue to apply a standard of arbitrariness that seems extremely reduced to other countries. France also has a deeply rooted fear of a nation of judges that stems from the memories of the ancien régime. 91 The possibility of ex-post review of statutes, which was only recently introduced and which has clear procedural limits, is regarded as ground-breaking. 92 Accordingly, constitutional court judgments often provide only little reasoning. 93 The existing contrasts are particularly stark when it comes to the amount of legal requirements for and the understanding of concepts such as freedom of press, data protection law, general right of personality or the law of assembly this goes even more for terms that are essential for restricting such concepts, e.g. public safety. If the differences between States that are very closely related like Germany and France are immense, this must be even truer for States that possess a completely different history and cultural background and of whose legal practice alone for reasons of language few people in other countries have detailed knowledge. Considering such discrepancies, European harmonisation can establish binding fundamental rights protection only at a very low level. Many instruments that are essential for fundamental rights protection in our country 94 do not fit into the structure of other legal systems likewise, we lack many traditional institutions that in other countries inspire trust. Overly harmonising fundamental rights will rather weaken the observance of the rule of law and risks watering down standards. The absolute obligation to extradite criminals who were sentenced in their absence in order to execute the judgment serves as an example. 95 There is great danger that limits resulting from the rule of law will be met with understanding only in cases in which they do not affect efforts to establish public security or to secure public and private wealth; fundamental rights could wither into well-sounding lip-service. The apparent increase in European fundamental rights protection could quickly become a decrease. Indeed, Europe is confronted with serious difficulties at the national level, difficulties that already concern the baseline standards of the rule of law. The developments in Poland and Hungary are disturbing and give rise to serious concerns. It appears that we in the EU presumed common political grounds which possibly did not exist to this extent or at least whose maintenance is far less certain than it seemed. Europe needs to fight to close ranks on these fundamental questions. The Member States need to reciprocally demand compliance with standards of democracy and rule of law without this being dismissed as interference in domestic affairs. The Union cannot be built solely with the objective and from the perspective of economic advantages. The primary basis for safeguarding such cohesion rests according to the original 89 Only the rule of law and the principle that Parliament cannot bind its successors could be discussed as rules with priority, cf. on this: G. Sydow, Parlamentssuprematie und Rule of Law (Tübingen: Mohr Siebeck, 2005). 90 Cf. P. Craig, Administrative Law, 7th edn (London: Sweet & Maxwell, 2012), p Cf. O. Duhamel, Droit constitutionnel et institutions politiques (Paris: Le Seuil, 2009), p Cf. G. Carcassonne, Le Parlement et la QPC (2011) 137 Pouvoirs, revue française d études constitutionnelles et politiques 73; P. de Montalivet, La Question prioritaire de constitutionnalité, Étendue et limites d un nouveau droit (2010) 3 Droit administratif Cf. the decision on the prohibition of wearing a burka in public, which essentially gives only half a page of reasons, Cons. const., decision no DC of 7 October English translation at -constitutionnel.fr/conseil-constitutionnel/root/bank_mm/anglais/en2010_613dc.pdf [Accessed 7 July 2016]. 94 Cf. for instance instruments such as the statutory domaine résérvé, requirements on legal certainty, the requirement of a judicial decision, or the review of appropriateness. 95 Council Framework Decision 2002/584/JHA [2002] OJ L190/1 art.4(a); introduced by Council Framework Decision 2009/299/JHA [2009] OJ L81/24; on this subject see Melloni (C-399/11) EU:C:2013:107 at [55] [64].

72 Articles 511 blueprint in the European Convention on Human Rights as the foundation of all Member States that the Union presupposes. In addition, in arts 2 and 7 TEU the Union also now rightly provides its own mechanisms, which take account of the increased cohesion in the Union. In this respect the Union also postulates mutual trust beyond particular policies. However, this again precisely shows that a resolution cannot be found in a sweeping, unitising hierarchisation of fundamental rights protection through the Charter. It is not without reason that the Treaty on the EU distinguishes between art.2 TEU and art.6 TEU, and that art.7 TEU refers only to art.2 TEU. Europe neither wants nor needs a unitising fundamental rights protection that deprives the domestic legal orders of intrinsic political options for balancing fundamental rights. Instead it needs shared fundamental values. These values need to form the basis for the Union s presupposed mutual trust. 96 However, here already profound difficulties exist. The EU needs to address these difficulties, and the Commission s Rule of Law Framework is a step forward though for the time being only a small one. It is very possible that further steps will be necessary and that institutional standards concerning separation of powers, parliamentary control, media, opposition rights and judicial review also need to be developed at least initially in the form of a benchmarking. The key issues precisely in Hungary and Poland are already located on this level: if one were to let the constitutional courts do their work regularly and independently, a standard of fundamental rights protection that is compatible with the Union on the one hand, but at the same time also diverse, would in principle be readily ensured. Certainly, one has to note that we are still far from common ground even in this respect. Europe needs a proactive dialogue on this which does not obscure the political dimension of this question and which acknowledges as a matter of course particularly here the variety of different configuration options. Bypassing this procedure by unitising fundamental rights protection through the European Court of Justice is not only incompatible with the treaties but also inadequate with regard to the structural and political tensions that erupt with respect to this point. To respond to such deep differences and to the push for autonomy with a hierarchising expansion of the Charter of Fundamental Rights already seems as politically futile as it does risky whether one considers potential conflicts or whether one contemplates a devaluation of the Charter s content through conflict-avoiding interpretation. 97 Human rights come to life only in specific contexts. Therefore, the concept of federalism also opposes such harmonisation. In addition to unity in fundamental rights protection for jointly designed European law, it is necessary to have diversity in fundamental rights protection in areas in which Union law prescribes diversity not under the tutelage of European law but independent of it. Within a structure that is as rich in different history as the EU, such a design enables countries to independently learn from their own experience. At the same time it creates a laboratory to experiment with various possible solutions. The Member States will continue to narrow the gaps between themselves but in a manner that permits productive and free exchange of experience, in any case interwoven by the Convention on Human Rights. There is much to argue that the future of Europe lies in a federal state, but even in a European federal state fundamental rights protection that is federally divided as is envisaged by the Charter on Fundamental Rights may be more effective than protection that imposes centralised requirements. In any event, it is not the task of the judicial branch to homogenise federal diversity by centralising and by creating hierarchy. Here as well there is a danger that powers lacking political backing are transferred to the central level, 96 Inasmuch as specific legal regimes build on particular mutual trust it is up to the EU institutions policy-making to fashion concrete common standards or minimum standards. An example for this is the regulations on data interchange between security agencies that need to be complemented by common minimum standards that are binding upon all. As far as such standards exist and are affected, European fundamental rights naturally apply. 97 The conception developed by von Bogdandy of having recourse to the Charter in circumstances of structurally deficient fundamental rights protection and installing temporary supervision by the European Court of Justice (cf. fn.87) is therefore at least in absence of an interposed political process dubious as a solution; in any event, it does not comply with the current law.

73 512 European Law Review bypassing public and political actors. Before the ECJ, A.G. Sharpston called for a decision along the lines of the US Supreme Court s Gitlow decision of In this decision the Supreme Court made freedom of the press and freedom of speech, which are guaranteed by the federal constitution, binding upon the states of the Union, 99 and initiated a process that led to virtually complete applicability of the federal fundamental rights. 100 However, one needs to bear in mind that Gitlow came after 130 years of common US history as a federal state, after a civil war and 50 years after a constitutional amendment that had democratically decided to extend the federal fundamental rights to the states of the Union incidentally, because there was no common framework such as Europe has with the Convention on Human Rights. The ECJ did not satisfy Sharpston s request. It was right not to. Such a decision would destroy diversity and acceptance in Europe and would rather destroy any chance of further consolidation than support it. The same goes for new ways of interpreting the Charter that would slowly lead to the same result. It is up to the ECJ and us together to preserve diversity in fundamental rights protection in a federal European spirit. 98 Opinion of A.G. Sharpston, in Zambrano (C-34/09) [2011] E.C.R. I-1177 at [172] [177]. 99 Gitlow v New York 268 U.S. 652, 666 (1925); this decision, of course, was just the starting point of slowly introducing federal fundamental rights on state level. 100 Subsequent decisions include DeJonge v Oregon 299 U.S. 353 (1937) (freedom of assembly); Cantwell v Connecticut 310 U.S. 296 (1940) (freedom of religion); Duncan v Louisiana 391 U.S. 145 (1968) (right to a jury trial); McDonald v Chicago 561 U.S. 742 (2010) (right to keep and bear arms).

74 Standardisation in Services European Ambitions and Sectoral Realities Panagiotis Delimatsis * Tilburg University EU law; Internal market; Standards; Supply of services Abstract Standard-setting has come to the forefront in the aftermath of the new EU Standardisation Regulation and recent cases relating to firm behaviour within standard-setting organisations (SSOs). Being for a long time a no passing zone for everyone but engineers and technical experts, SSOs have produced a growing solid body of standards that improved our everyday life, from wireless communications to household appliances. If standardisation in goods is vague, standard-setting in services is uncharted territory owing to the tailor-made, typically non-technical nature of rules on services supply. However, interest in this area is growing and the EU has paved the way for a revolution in service standard-setting as encouraged by the controversial EU Services Directive, and, more recently, by the Single Market Act. Based on these developments, the present article maps this new and promising area of rule-making in services, clarifies the substantive scope of the relevant legal instruments and identifies the prospects for pan-european service standards with a view to promoting trade in services. Introductory remarks Standards are a form of codified technical knowledge that enables the development of products and processes. They define those requirements with which products, production processes and methods, or services may voluntarily comply to decrease compliance costs and alleviate information asymmetries. 1 In this respect, standards regularise and constrain behaviour (regulative function); lend a taken-for-granted quality to certain technologies and modi operandi (cognitive function); and favour co-operative strategies over adversarial ones (normative function). 2 The last function in particular can have a long-lasting beneficial effect: this is because standardisation establishes an infrastructure that, once created, parties (be it industry, public authorities, hybrid bodies or individual companies and consortia thereof) have an incentive to use it, resulting in increased co-operation and enabling users to take full advantage of the network effects of standardisation. * Professor of Law and Director, Tilburg Law and Economics Center (TILEC); and Fellow, Program on International Financial Systems, Harvard Law School. Many thanks go to George Comnenus for excellent research assistance. The author would like to thank Knut Blind, Fabien Gehl, Juan Marchetti, Petros Mavroidis and the anonymous referees for useful insights and suggestions. This work forms part of TILEC s research on standard-setting processes. Financial support from Qualcomm Inc is gratefully acknowledged. The research on which this article is based was conducted in accordance with the rules set out in the Royal Dutch Academy of Sciences (KNAW) Declaration of Scientific Independence. Remaining errors are the author s alone. Contact: p.delimatsis@uvt.nl. 1 See World Trade Organization (WTO), World Trade Report 2005 (2005). 2 C. Lane, The Social Regulation of Inter-Firm Relations in Britain and Germany: Market Rules, Legal Norms and Technical Standards (1997) 21 Cambridge Journal of Economics

75 514 European Law Review Absent some form of standard-setting, technological progress would miss an important instrument for benchmarking and capitalising on advances in human thinking, be it in the field of technology, quality assurance or level of service. In addition, first-mover advantages in standardisation (and ensuing royalty revenues) are prominent incentives for firms to innovate in their processes, production methods or level of service. 3 Hence, standards are constitutive elements of markets 4 and a decisive instrument for economic growth. 5 However, standardisation can lead to exclusion and foreclosure, notably by increasing barriers to entry, thereby raising concerns about the consistency with competition rules of standardisation agreements or of the behaviour of individual companies participating in the standardisation process. 6 The semi-commons nature of SSOs also sometimes creates fertile ground for opportunism. 7 Structural issues and institutional design of SSOs can increase rivals costs in an unduly manner, lead to strategic behaviour within an SSO or among SSOs and ultimately create unnecessary barriers to trade and innovation. 8 Compared with the importance of standardisation for overall economic activity and growth, the information that we have on standardisation processes and properties at the domestic, European or international level is astonishingly scarce. If standardisation in goods is vague, standard-setting in services is uncharted territory. This comes as no surprise; owing to their nature, services are harder to standardise. However, interest in this area is growing as exemplified by recent regulatory trends in the EU legislative machinery: In the controversial EU Services Directive, 9 and, more recently, in the Single Market Act, 10 the European Commission is called upon to lead the development of voluntary European standards to facilitate compatibility among services, whereas EU Regulation 1025/2012 (the Standardisation Regulation) provides the legal basis for a new era in service standard-setting in the EU. 11 At the same time, the EU is actively involved in the work on services-related standards undertaken under the auspices of the International Organization for Standardisation (ISO). To be sure, work on standard-setting in services is everything but new; rather, it existed prior to the EU Services Directive at the national, European or international levels. 12 However, such standards were developed on an ad hoc basis, reflecting market needs and pressures or lobbying by certain interests. The 3 See, inter alia, D. Spulder, Innovation Economics: The Interplay Among Technology Standards, Competitive Conduct, and Economic Performance (2013) 9 Journal of Competition Law and Economics 777. Again, and more generally, if we consider standardisation as infrastructure, which is a plausible assumption, it can promote but also hamper innovation. See also D. Acemoglu; G. Gancia; and F. Zilibotti, Competing Engines of Growth: Innovation and Standardization (2012) 147 Journal of Economic Theory H. Schepel, The Constitution of Private Governance: Product Standards in the Regulation of Integrating Markets (Oxford: Hart Publishing, 2005). 5 K. Blind and A. Jungmittag, The Impact of Patents and Standards on Macroeconomic Growth: A Panel Approach Covering Four Countries and 12 Sectors (2008) 29 Journal of Productivity Analysis See European Commission Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements [2011] OJ C11/1, Recital 38, paras For a recent case relating to standard-essential patents (SEPs) and the potential for abuse of dominant position of the patent holder within a standard-setting body (ETSI, in casu), see Huawei Technologies (C-170/13) EU:C:2015:477; [2015] 5 C.M.L.R See also H. Smith, Property as Platform: Coordinating Standards for Technological Innovation (2013) 9 Journal of Competition Law and Economics See, among others, M. Lemley and C. Shapiro, Patent Holdup and Royalty Stacking (2007) 85 Texas Law Review Directive 2006/123 on services in the internal market [2006] OJ L376/ See Commission, The Single Market Act Twelve levers to boost growth and strengthen confidence: Working together to create new growth COM(2011) 206 final. 11 See Regulation 1025/2012 on European standardisation [2012] OJ L316/ See also Technopolis Group, Mapping services standardization in Europe, Final Report to the Danish Enterprise and Construction Authority (10 Novermber 2010).

76 Articles 515 present article, however, deals with the current, more concerted efforts to establish pan-european standards in the area of services, including horizontal (i.e. across services sectors) standards. Based on these developments, this article maps this new and promising area of rule-making in services. Standard-setting procedures and institutions will be analysed with a view to identifying how conducive these new endeavours are to promoting trade in services within the EU internal market, but also beyond. The conceptual delimitations relating to and the raison d être behind reinvigorating efforts for more co-ordinated service standardisation are discussed, whereas the final part of the article critically reviews the EU standardisation system focusing on services and how such focus has evolved in recent years. The peculiar case of standard-setting in services Delimiting among the relevant concepts Standards are essential for the improvement of the suitability of products, processes and services for their intended purposes, the prevention of trade barriers and the facilitation of technological innovation through cooperation and, at times, reward of creativity. At the outset, it appears opportune to clarify conceptually the substantive scope of this article. For our purposes, a useful start is the definition of a standard in ISO. According to the ISO Guide 2:2004, a standard is a, 13 document, established by consensus and approved by a recognised body, that provides for common and repeated use, rules, guidelines or characteristics for activities or their results, aimed at the achievement of the optimum degree of order in a given context Note: Standards should be based on the consolidated results of science technology and experience, and aimed at the promotion of optimum community benefits. (Emphasis added.) In turn, standardisation is defined as the activity of establishing, with regard to actual or potential problems, provisions for common and repeated use, aimed at the achievement of the optimum degree of order in a given context. 14 Standard-setting in services (just like trade in services) was inconceivable for several decades. Most likely, the same reasons that led to consider services as non-tradable for years such as non-storability, intangibility or invisibility, but also the need for proximity between supplier and consumer were to blame for the fact that services were out of the spectrum of SSOs. 15 In addition, standardising the supply of a service may prove to be a daunting task owing to the tailor-made nature and heterogeneity of service supply, depending on the characteristics of the supplier, but also of the consumer. In addition, and contrary to goods, regulations in services would very much focus on characteristics that are not visible at the final content of the service, but still influence the process of supplying the service. 16 Thus identifying particular traits and creating common denominators would be a much more challenging and uncertain venture in the case of standard-setting in services. Standard-setting was for a long time understood to deal with technical characteristics and content for goods. It was only more recently that the scope of standardisation was broadened to include improvement 13 See ISO/IEC Guide 2: 2004 art ISO/IEC Guide 2: 2004 art.1.1. In Note 1, the provision reads: in particular, the activity consists of the processes of formulating, issuing and implementing standards. 15 See also P. Delimatsis, International Trade in Services and Domestic Regulations: Necessity, Transparency and Regulatory Diversity (Oxford: Oxford University Press, 2007), p See also V. Hatzopoulos, Regulating Services in the European Union (Oxford: Oxford University Press, 2012), p.277.

77 516 European Law Review of the suitability not only of products (and processes), 17 but also services. In essence, focus on standardisation in services largely coincided with the creation of the World Trade Organization (WTO). 18 Whereas work within ISO technical and project committees has delivered mixed results, ISO standards that are directly related to the service sector currently account for about 4 per cent of ISO s total output. These standards may relate to specific sectors (such as the ISO series on financial services or the ISO on tourism services) or they can deal with horizontal issues, that is, be applicable across services sectors (such as the existing standards on service consumer satisfaction, including ISO on dispute resolution or ISO on complaints handling). 19 ISO/IEC Guide 2:2004 defines a standard in the realm of services as a, standard [that is, document, established by consensus and approved by a recognised body] that specifies requirements to be fulfilled by a service, to establish fitness for purpose Note: Service standards may be prepared in fields such as laundering, hotel-keeping, transport, car-servicing, telecommunications, insurance, banking, trading. 20 Thus, just like in the case of standard-setting in goods, standard-setting in services aims to optimise a given service in that it makes it suitable for the achievement of its ends, or else, fit for purpose. Fitness for purpose, that is, the ability of a given service to serve a defined purpose under specific conditions, may in particular relate to variety control, usability, compatibility, interoperability or interchangeability, and trade, but it can also refer to the protection of non-economic values such as those relating to health, safety or the environment. 21 From the sectors to which the ISO definition of service standards refers one can infer that, for the most part, service standards are expected to comprise some technical specifications. For instance, in terms of telecommunications, service standards would most likely include standardised technical specifications or requirements; for instance, to ensure interconnection/interoperability. 22 The same would apply to banking, including issues relating to the personal identification number (PIN) or the business identifier code (BIC). 23 The same focus on technical content also is clear in the WTO General Agreement on Trade in Services (GATS), whereby the negotiating mandate of art.vi:4 (but also art.vi:5 by implication) refers to technical standards in services sectors as potential impediments to trade. 24 This is so because standards may unduly increase foreign rivals costs or otherwise restrict market access by unnecessarily increasing the costs of the supply of a given service. Discussions within the Working Party on Professional Services (WPPS) 17 See, for instance, the ISO quality management system series, the best-known of which is ISO 9001:2008 (review to be completed in 2015): [Accessed 10 July 2016]. 18 See also WTO, Service Standards for Open Global Markets (14 September 1998), /news_e/news98_e/iso.htm [Accessed 10 July 2016]. 19 See also Servicing the Services Sector, ISO Focus, Vol.3 No.3 (March 2012). 20 See ISO/IEC Guide 2:2004 art.5.6. This ISO Guide has been taken over as European Standard EN 45020:2006. The CEN Guide 15:2012 defines service standards similarly to ISO, but adds that such standards can include both specific requirements on the service (measurable) and organisation procedures in place for repeated or continuous application to ensure that the service level is reached. It further clarifies that those standards can describe requirements for the service or part of it, and they may establish services levels or categories. See CEN Guide 15:2012: Guidance document for the development of service standards (1 February 2012), para ISO/IEC Guide 2:2004 arts 2.2 to Cf. Telecoms Reference Paper (24 April 1996), para.2.2(b). 23 See the list of standards on financial services that the relevant ISO technical committee (TC 68) has adopted to date, &includesc=true [Accessed 10 July 2016]. 24 Reference to technical standards is also made in the Decision on Professional Services (S/L/3 of 1 March 1995) and in the Accountancy Disciplines (S/L/64 of 17 December 1998).

78 Articles 517 and more recently within the Working Party on Domestic Regulation (WPDR) 25 made clear that measures relating to technical standards include substantive and procedural aspects of measures laying down the characteristics of a service; the manner in which it is supplied; or the manner in which such standards are enforced. Typically, such standards relate to the supply of a given service (including requirements and technical specifications on the resources and facilities required for the service, the terminology used and the required information to be disclosed) and aim at ensuring compatibility, comparability and interoperability, depending on the services sector at issue. 26 For instance, during the discussions on accountancy disciplines, it was suggested that technical standards in this sector would define the way a normally diligent auditor should perform an audit, that is, which types of checks he should perform according to the type of company (industrial companies, banks, SMEs, etc.), the way work should be documented and so on. 27 Acknowledging that accountancy is one of those services sectors where substantial regulatory convergence would be desirable allowing for comparisons at a cross-border level, the WPPS worked under the assumption that relevant international standards developed by the International Federation of Accountants (IFAC), the International Accounting Standards Board (IASB) and the International Organization of Securities Commissions (IOSCO) would function as yardsticks for any work in this matter. 28 The final draft accountancy disciplines are explicit in this respect, requiring that regulatory authorities take into account compliance with these standards when determining the acceptability of foreign service suppliers. 29 This requirement goes beyond the obligation enshrined in art.vi:5(b) GATS in that it requires, when examining whether certain technical standards create unnecessary barriers to services trade, to take into account international standards created by relevant (i.e. open to all WTO members) international bodies and which are applied by the member in question. 30 Technical standards in services were discussed only once before the WTO adjudicating bodies. In China Electronic Payment Services, the US challenged various Chinese measures that restricted foreign service suppliers of electronic payment services (EPS) from providing domestic RMB payment card transactions in China under conditions similar to the Chinese UnionPay (CUP). 31 The so-called issuer 25 According to art.vi:4 GATS, the WPDR is tasked with the mandate to produce disciplines to ensure that measures relating to qualification requirements and procedures, licensing requirements and procedures, and technical standards, inter alia, are not more burdensome than necessary to ensure the quality of the service supplied. 26 WTO, Working Party on Domestic Regulation, Technical Standards in Services, Note by the Secretariat, S/WPDR/W/49 (13 September 2012), p.7. See also K. Blind, Standards in the Service Sectors: An Explorative Study Final Report (2014), pp.13 14, [Accessed 11 July 2016]. 27 See S/WPPS/W/1, 27 June 1995, p Interestingly, the Singapore Ministerial Declaration of 1996 referred to these three sister international SSOs in the accountancy sector, encouraging the completion of their work. 29 Trachtman suggested that this provision signals the WTO s deference and, in effect, delegation (at least in part), to these organizations. Thus the WTO has delegated to specific functional organizations the task of establishing standards to facilitate tht free movement of accountancy services : J. Trachtman, Accounting Standards and Trade Disciplines Irreconsilable Differences? (1997) 31 Journal of World Trade This is a much softer obligation than the one prescribed in art.2.4 TBT for several reasons: first, and most crucially, because it presupposes that the relevant international standards are applied by the member at stake. Thus, by implication, if that member has not endorsed these standards, then it is not bound to use them for its domestic regulations or technical standards; secondly, because such standards should only be taken into account to examine conformity with the principle of necessity. Thus, compliance or not with given international standard is not dispositive of GATS-consistent behaviour. 31 See P. Delimatsis, The WTO Outlaws the Privileges of the Chinese Payment Services Giant (2012) 16 ASIL Insights, [Accessed 11 July 2016].

79 518 European Law Review requirements 32 and terminal equipment requirements, 33 but also certain acquirer requirements established, inter alia, various technical standards with which compliance was mandatory and which allowed, so the US, the Chinese services supplier, CUP, to dominate the payment services market. In US view, these requirements led to the CUP de facto becoming the exclusive EPS supplier for RMB bank card transactions in China. China, on the other hand, claimed that the system did not attempt to create any distortions in the market to the benefit of CUP, but rather to create uniform technical and commercial standards that would allow a national inter-bank payment card network to function. The Panel found that, through a complex matrix of documents, China regulates all aspects of the market for bank card transactions and all entities in the process, including issuers, acquirers, merchants, EPS suppliers and most likely third parties involved in the handling of bank card transactions. Such requirements are mandatory, rather than voluntary schemes with which a given economic actor may choose not to comply. Still, the Panel found that the US failed to adduce evidence suggesting that these Chinese instruments would legally prohibit EPS suppliers other than CUP from supplying their services in the Chinese market. 34 For our purposes, a very interesting issue that the US raised was the allegation that China seeks to favour CUP by requiring the use of Chinese standards (PBOC 2.0), which were co-developed by CUP and the People s Bank of China (PBOC). The US contended that these standards deviated from the otherwise recognised global standard for chip cards developed by EMV. 35 The US argued that PBOC 2.0 and EMV standards are incompatible. Being a country with important monopsony power, any problems with interoperability could effectively deprive foreign service suppliers from getting access to the market. Whereas the Panel did not question the existence of a parallel set of technical standards adopted at the national level by PBOC and CUP, it still shied away from finding that the current or future Chinese standards discussed would lead to the CUP remaining the sole supplier in the EPS market. In the Panel s view, the redesign would not be so significant as to lock certain EPS suppliers out of the market. 36 More generally, discussions among members regarding technical standards have benefited from lessons drawn by the drafting and functioning of the WTO Agreement on Technical Barriers to Trade (TBT), but also have suffered therefrom in that members have been divided between transposing TBT concepts and approaches to the GATS and drawing a new line of thinking which would be commensurate with the peculiarities of services. Although art.vi:4 GATS appears to refer to technical standards promulgated at the national level, the nature of standardisation processes is such that many times standards in the area of services are developed by national and international SSOs in tandem owing to issues relating to interoperability, transaction costs, and negotiating effort. 37 One of the most important sources of disagreement among members has been the role of international standards when assessing the compliance of domestic measures with the GATS. 38 While this is a very interesting and ongoing issue at the current 32 See Panel Report, China Electronic Payment Services, para Panel Report, China Electronic Payment Services, para Only certain requirements relating to card use by Hong Kong and Macao nationals that travel to China and Chinese nationals that travel to Hong Kong or Macao were found to grant CUP exclusive privileges. 35 EMV stands for Europay, MasterCard and Visa. In May 2013 (that is, after the issuance of the Panel Report on China Electronic Payment Services), CUP became a member of the EMVCo, which are currently six: MasterCard; Visa, JCB; American Express, CUP and Discover. 36 See Panel Report, China Electronic Payment Services, paras to 7.473, This would notably be the case for network industries such as financial or telecommunication services. 38 See Delimatsis, International Trade in Services and Domestic Regulations (2007). It is submitted that WTO members decided at the time for a soft commitment in applying international service standards under the GATS, simply because such international standards did not exist and thus members were reluctant to commit to future standards that they would be unable to conceive or influence.

80 Articles 519 negotiations within the WPDR that aim to create new rules for domestic regulations in services, 39 what remains quite striking is the only indirect focus on quality standards in services. It is this type of standards to which the following section will turn. The shift of focus towards quality standards in services Services standards may relate to terminology to establish common terms and definitions in a given sectors (such as EN Maintenance Maintenance terminology); measurement methods and key performance indicators to compare and measure quality, performance and other aspects (such as EN Facility Management Part 6: Area and Space Measurement in Facility Management); specifications describing requirements in relation to the service, its provision or any other aspects relevant for the service provision (such as EN Self-storage Specification for self-storage services); codes of conduct or best practices (such as EN Postal Services Quality of services Complaints handling principles); or focusing on processes and establishing requirements or recommendations associated with these processes with a view to improving them and achieving a specific outcome (such as EN Facility Management Part 5: Guidance on Facility Management processes). 40 Quality assurance in service supply and the possibilities for codifying requirements to improve quality of a given service have been barely discussed to date. However, substantial gains for consumers and service suppliers alike can be achieved by setting standardised, commonly accepted and clearly defined approaches and mechanisms relating to the supply of a given service. 41 This could tremendously improve the quality of the service supplied but also the confidence of consumers in the capabilities of the service supplier. Thus, a more general distinction between technical standards and quality standards in the service sector appears to be in order. The distinction between technical standards in services and quality standards in services may sound artificial or hard to defend at first blush but, arguably, it is meaningful in that it explains why the creation of service standards in the two categories did not advance at an equal pace. More specifically, the creation of technical standards in services is less trivial: such standards are facilitative and typically stripped of any normative content; they simply set technical requirements to allow for interoperability or interconnection to a given network in order to facilitate the smooth functioning of a given services sector. In contrast, quality service standards notably in sectors where the personal aspect is decisive 42 are more aspirational, as their drafters have to implicitly choose a specific benchmark which expresses a particular level of regulatory intervention that eventually is expected to be adhered to. This is so even if upward regulatory diversity that is, the right of those affected to choose higher levels of protection is allowed, 43 just like in the case of safety regulations. 44 Despite being of a soft law nature recall that standards are of voluntary character the increased normativity of such rules may lead to confrontation 39 See P. Delimatsis, Who s Afraid of Necessity? And Why it Matters? in A. Hoe Lim and B. de Meester (eds), WTO Domestic Regulation and Services Trade (Cambridge: Cambridge University Press, 2014), p High-Level Group on Business Services, Final Report (April 2014), pp We adopt a broad definition of supply here to cover preparatory stages (e.g. acquiring qualifications) to the post-supply stage (e.g. relating to handling of complaints and enforcement of remedies). 42 See, for instance, DIN/DKE, Deutsche Normungsroadmap Dienstleistungen (January 2015), p Cf. R. Howse, Importing Regulatory Standards and Principles into WTO Dispute Settlement: the Challenge of Interpreting the GATS Arrangements on Telecommunications in I. Lianos and O. Odudu (eds), Regulating Trade in Services in the EU and the WTO: Trust, Distrust and Economic Integration (Cambridge: Cambridge University Press, 2012), p.445 at p See, for instance, the flexibility in the case of public health in Blanco Pérez v Consejeria de Salud y Servicios Sanitarios (C-570/07) [2010] E.C.R. I-4629; [2010] 3 C.M.L.R. 37.

81 520 European Law Review and impasse. This can be due to many reasons; for instance, already because the most reluctant economic actors anticipate the gradual upgrading of such rules to harder forms of law. 45 The adequacy of this distinction between technical and quality standards seems to be accepted in legislative and policy circles. First, the ISO definition of standards in services mentioned earlier points indeed to this duality of service standards: it provides that fitness for purpose can relate to technical issues such as interoperability or usability but can also refer to non-economic objectives such as safety, professional integrity or the environment. Secondly, the EU Commission s guidelines on horizontal co-operation agreements define standardisation agreements as having 46 as their primary objective the definition of technical or quality requirements with which current or future products, production processes, services or methods may comply (emphasis added). Thus, the possibly dual nature of standards in services is not as artificial as one would believe at first. When discussing quality standards in services, one should beware of the possible overlap with (quality) management system standards (MSS). 47 The latter can cover such aspects as quality, safety, risk, environment, financial management, internal organisation of the entity or undertaking at issue, or additional requirements. Thus, the overlap is more than obvious in that services standards may include such aspects, which, however, are more generic, as they do not relate to any management system of a given entity. At the same time, service standards focus on requirements that are relevant to ensure the agreed level of service supply such as recommendations of the supply of a given service, information about the service, state of the art and so on. Such requirements should be written in the form of objective measurable demands to allow assessing compliance and comparing among various service providers. A key difference with MSS is, then, that compliance with the latter may lead to outcomes which are not necessarily the same for every organisation and are, therefore, not readily comparable by a customer. 48 Increased tradeability of services leads to commoditisation and this in turn facilitates standardisation of services. This applies not only to technical but also to quality standards in services. Attention to the particular issue of quality standards in services has grown in the EU for two reasons: first, because the focus of standard-setters has been extended to cover not only upstream service markets but also downstream service markets whereby interaction between service suppliers and consumers is direct. A second reason is because regulators and policy-makers have come to realise that quality assurance has been used as a pretext in order to raise barriers to the unfettered supply of trade in services or unduly discriminate among service suppliers originating in other EU Member States. Arguably, this new emphasis on the side of the EU executive was inevitable owing to the reluctance on the side of the Court of Justice of the EU (CJEU) to explicitly use in the services realm the regulatory technique of mutual recognition and home country control, well established under the free movement of 45 K. Abbott and D. Snidal, The Governance Triangle: Regulatory Standards Institutions and the Shadow of the State in W. Mattli and N. Woods (eds), The Politics of Global Regulation (Princeton, NJ: Princeton University Press, 2009). 46 See European Commission s 2011 Guidelines [2011] OJ C11/1, para.257. As suggested, the guidelines also cover agreements by SSOs establishing standards in services. As made clear in the guidelines, standard-setting in services can cover technical specifications in services markets but also terms of access to a particular quality mark or for approval by a regulatory body. Interestingly, the guidelines include a carve-out for standards in professional services. This suggests that the guidelines would not apply to all rules promulgated by self-regulatory, typically private professional bodies such as rules relating to access to and exercise of a given profession: Ibid. In that case, EU primary law (free movement rules and arts 101 and 102 TFEU) would still be applicable. 47 See Hatzopoulos, Regulating Services in the European Union (2012), p See CEN Guide 15:2012, section 6.2. The Guide also establishes the mutual exclusivity between MSS and service standards in that one and the same standard cannot include requirements on the management system and requirements of the supply of a given service.

82 Articles 521 goods after Cassis de Dijon. 49 The CJEU has eschewed the unfettered application of the principle of mutual recognition in the area of services. 50 For instance, whereas in the area of recognition of professional qualifications, mutual recognition is through extensive secondary legislation the rule, in certain sensitive sectors the CJEU ruled out such recognition, allowing for a broad margin of discretion to the regulatory authorities of the host EU Member State. 51 Thus, standardising certain aspects of service supply relating to quality assurance (for instance, under which conditions, specific quality labels for the supply of certain services are attributed or what professional competence should entail in a given service sector) was seen as an appropriate means to minimise disguised trade restrictions by increasing transparency and allowing for objective comparisons. Within the EU, this issue was associated with the acknowledgement that integration of the EU services industry was quite disappointing, with no completion of the single market for services in sight despite the ever-growing demand for services. Indeed, most of developed countries economies are nowadays services economies, whereby a high percentage of EUs GDP is due to services activities. This also means that an increasing amount of money is spent on the consumption of services, raising consumer protection concerns. Creating pan-european standards to this effect is a passage obligé for infusing higher levels of trust vis-à-vis intra-eu transactions in services so that important welfare gains are created. To be sure, standardisation of services in the EU is difficult also because of the unique institutional features and the complex system of competences. Contrary to goods where the existence of a customs union generates centripetal forces to the benefit of a centralised agency such as the European Commission, the EU competences in services are anything but straightforward. For instance, social and healthcare services remain largely within the realm of EU Member States competences whereby the EU has only supporting competences or shares competences with its Member States. 52 The EU standard-setting system and the new emphasis on services Standard-setting in the EU in a nutshell The EU standard-setting system has grown in prominence since the mid-1980s, after the realisation that full harmonisation on every possible technical detail through the powerful instruments of Regulations would be undesirable and extremely time-consuming. 53 The new Delors Commission in 1984 was adamant about the need for a more flexible stance towards the dismantling of trade barriers See Ker-Optika bt v ANTSZ Del-dunantuli Regionalis Intezete (C-108/09) [2010] E.C.R. I-12213; [2011] 2 C.M.L.R. 15 at [48]. On mutual recognition in services, see V. Hatzopoulos, Forms of Mutual Recognition in the Field of Services in Regulating Trade in Services in the EU and the WTO (2012), p See, for instance, Commission v Italy (Sanitary Services) (C-358/98) [2000] E.C.R. I-1255 at [13]; and Commission v Italy (C-465/05) [2007] E.C.R. I-11091; [2008] 2 C.M.L.R See, for instance, in the gambling sector, among many, Sporting Exchange Ltd (t/a Betfair) v Minister van Justitie (C-203/08) [2010] E.C.R. I-4695; [2010] 3 C.M.L.R. 41; Ladbrokes Betting & Gaming Ltd v Stichting de Nationale Sporttotalisator (C-258/08) [2010] E.C.R. I-4757; [2010] 3 C.M.L.R. 40 at [54]; and Digibet v Westdeutsche Lotterie GmbH & Co. OHG (C-156/13) EU:C:2014:1756 at [32]. Services of general (economic) interest is an area whereby one also sees the limits of mutual recognition in services. Cf. Hatzopoulos, Regulating Services in the European Union (2012), p Cf. TFEU art.207(4). For a depiction of the complexity in the internal attribution of competences within the EU, see the CJEU s Opinion on the competence to amend the EU s GATS schedule of commitments: Opinion 1/08 [2009] E.C.R. I-11129; [2010] 2 C.M.L.R See also R. van Gestel and H.-W. Micklitz, European Integration Through Harmonization: How Judicial Review is Breaking Down the Club House of Private Standardization Bodies (2013) 50 C.M.L. Rev. 145, See Commission, White Paper on completing the internal market COM(85)310 final.

83 522 European Law Review The introduction of the New Approach in 1985 was based on certain key principles 55 : setting general, essential safety requirements (the CE marking, attached to the product by the producer himself, would prove compliance with these requirements); adopting voluntary standards within hybrid SSOs at the EU level that conform to these essential safety requirements; the home Member State would be in charge of market surveillance, but should recognise that products manufactured in conformity to these harmonised standards (which, one should mention, are incorporated by reference in the EC legislature, as they are published in the Official Journal of the EU, thereby giving a quasi-legislative status to the output of European standards organisations ESOs 56 ) are presumed to comply with the essential requirements. 57 In addition, once adopted, European standards would become national standards and existing national standards which could be in conflict with the European ones would have to be withdrawn. The Single European Act, the first significant amendment of the Rome Treaty, introduced a new legal basis for harmonisation, which provided for qualified majority voting (rather than unanimity). Thus, the adoption of directives setting essential safety requirements (minimum harmonisation) and self-certification for producers, coupled with the creation of standards (European Norms EN) within technical ESOs are the fundamental traits of the New Approach to technical harmonisation and further European integration. 58 The Commission subsidises the work of ESOs (the European Committee for Standardisation CEN; the European Committee for Electrotechnical Standardisation CENELEC; and the European Telecommunications Standards Institute ETSI) and regularly gives mandates 59 to the ESOs to elaborate new standards in areas where the Commission seeks to attain specific objectives. In this respect, ESOs are semi-private bodies, tied to the industry but still co-operating closely with the EU institutions. Their members are the national SSOs of EU and EEA countries as well as Switzerland. 60 They can develop standards not only based on Commission s requests but also at the initiative of the industry or users. Non-mandated standards constitute the majority of ESOs work (over 70 per cent). The standards developed by the ESOs can relate to the single market (integration in technical matters) or other EU policies (for instance, sustainability issues). Although unanimity will be striven for, disagreements will not necessarily delay decisions. Rather, a system of qualified majority voting can be used to avoid deadlock, whereby 71 per cent of the weighted 55 See Council Resolution of 7 May 1985 on a new approach to technical harmonization and standards [1985] OJ C136/1. 56 See D. Chalmers et al., European Union Law (Cambridge: Cambridge University Press, 2007), p.491; also A. M. El-Agraa, The European Union: Economics and Policies (Cambridge: Cambridge University Press, 2011), p For an example in the area of postal services, see Commission s communication in the framework of the implementation of Directive 97/67 on common rules for the development of the internal market of Community postal services and the improvement of quality of service [2005] OJ C30/3. This is one early example of service standards also relating to the quality of the services at issue (e.g. EN 14012:2003 on the measurement of complaints and redress procedures). 58 The key directive for technical standardisation and harmonisation in the EU is the Notification (Transparency) Directive 98/34 laying down a procedure for the provision of information in the field of technical standards and regulations [1998] OJ L204/27. This framework was extended to the field of information society services through Directive 98/48 [1998] OJ L 217/ There are three types of mandates: standardisation mandates, which call for specific deliverables over a given period; programming mandates, which call for the elaboration of a standardisation programme; and study mandates, which assess the feasibility of European standard-setting in a given field or subject. According to the current legal framework, mandates must be submitted to the Committee on Standards before being formally addressed to the ESOs. See art.22 of Regulation 1025/ ETSI is quite peculiar in its membership with a quasi-global outreach. It currently has over 800 members from 64 countries although full members are mostly European. Thus, contrary to CEN and CENELEC, which are premised on the national delegation principle (just like ISO and IEC), ETSI is based on direct participation.

84 Articles 523 votes cast lead to the adoption of the standard. 61 Whereas it is doubtful whether the EU can be held liable for acts of the ESOs (it would most likely depend on whether a given standard was mandated or not and then referred to in the Official Journal), ESOs are still subject to EU competition law rules, as they can be deemed an undertaking or an association of undertakings. 62 They would most likely continue not to be subject to free movement rules, as these would rather apply to national standards which unduly restrict market access of economic actors originating in other EU Member States. 63 The EU standard-setting system is regarded as a success story, not only internally, but also outside the EU within international standard-setting fora such as the ISO, whereby the EU has exerted a significant level of influence mainly owing to its co-ordinated activities. 64 Such a high level of coordination is also the result of the New Approach and the homogeneity that the acquis communautaire brought about in otherwise highly technical matters. In addition, ESOs have concluded co-operation agreements with international standard-setting bodies 65 or other international organisations, 66 whereas statements of mutual recognition between European and international organisations have only augmented EU s impact on standard-setting activities globally. 67 Setting standards in services in the EU a long and winding road? Standardisation in services became a priority only recently within the EU. In the recent Single Market Act, a flagship initiative of the European Commission amid the most severe economic crisis that the EU has experienced, standardisation in services became one of the 12 key, priority actions (or levers ) for boosting competitiveness and growth in the EU. 68 However, efforts to develop standards in the area of services are traced at least as early as in the early 2000s, 69 during the consultations for the completion of 61 The weighted voting system is based on the attribution of votes within the Council of the EU agreed upon in the Treaty of Nice. 62 See also EMC Development AB v European Commission (T-432/05) [2010] E.C.R. II-1629; [2010] 5 C.M.L.R. 13. Regulation 1025/2012 gave an ending to the doubts on this issue: see Recital 13. CEN and CENELEC accepted that adherence to the EU competition law rules when developing standards is important: see CEN-CENELEC Guide 31:2015, Competition law for participants in CEN-CENELEC activities, 1st edn (2015). It bears mention that ESOs do not come within the Eurocontrol case law (SAT Fluggesellschaft mbh v Eurocontrol (C-364/92) [1994] E.C.R. I-43; [1994] 5 C.M.L.R. 208). This is because, first and foremost, the ESOs engage in economic activities already through the contributions that they receive from their members, the level of which ESOs are free to determine collectively within their respective organisational structures. Even if ESOs are involved in non-profit activities, these are easily separated from the for-profit ones. Arguably, this observation holds even in the case of standards referred to in EU legislation. 63 See Commission v Belgium (C-227/06) [2008] E.C.R. I-46; and Fra.bo SpA (C-171/11) EU:C:2012:453; [2012] 3 C.M.L.R. 38. As exemplified in EU:C:2012:176, the private law nature of the standardisation body did not prevent the CJEU from applying the EU rules relating to free movement of goods. While the Advocate General in that case argued that horizontal direct effect can be recognised per analogiam under this freedom as well (Opinion of A.G. Trstenjak in EU:C:2012:176 at [43]), the CJEU appeared to suggest that the direct effect was still vertical, as the standard was referred to in State legislative instruments. 64 For the EU s influence within ISO, see P. Delimatsis, Into the Abyss of Standard-Setting An Analysis of Procedural and Substantive Guarantees within ISO, TILEC Discussion Paper (October 2014). 65 Dresden (IEC-CENELEC) Agreement (October 1996), and Vienna (ISO-CEN) Agreement, Version 3.3 (20 September 2001). 66 See General Guidelines for the Cooperation between CEN, CENELEC and ETSI and the European Commission and the European Free Trade Association [2003] OJ C91/7. These Guidelines were also included in the CEN/CENELEC Guide See also Report of the Expert Panel for the Review of the European Standardization System (EXPRESS), Standardization for a competitive and innovative Europe: A vision for 2020 EXP 384 final (February 2010), p See Commission, The Single Market Act COM(2011) 206 final, p.10, para See, for instance, Commission, The State of the Internal Market for Services COM(2002) 441 final.

85 524 European Law Review the single market for services and the high expectations that accompanied the proposal for an EU Directive on services. 70 In fact, by the time the Services Directive was adopted, the European Commission had already addressed the first programming mandate to the three sister ESOs for the development of a standardisation work programme to support the internal market for services. 71 This followed the revision of the co-operation agreement between, on one side, the ESOs and, on the other side, the European Commission and the European Free Trade Association (EFTA). In this agreement, emphasis was put on the accountability of the European standard-setting system. More particularly, it was underscored that ESOs should take into account the broadest possible range of interests, follow open and transparent procedures and ensure coherence among them regarding the planning, execution and implementation of standards-related activities. 72 In the programming mandate, the Commission requested the ESOs to focus on those sectors where trade was already significant, but also on the sectors where requests by stakeholders for standard-setting were present. It suggested that seeking input by users was important, as they can only benefit by higher levels of comparability in services sectors. However, input by business service associations such as ANEC (consumer interests), TUTB (worker interests) or ECOS (environmental interests) was equally warranted. 73 It was for the ESOs to decide whether a sectoral or rather a horizontal approach had to be opted for. Service standardisation being a largely uncharted territory, the Commission was adamant about the importance of impact assessment. Every effort in this regard should be accompanied by an analysis of the appropriate timing; the feasibility of achieving the proposed deliverables; the potential users; the levels of use; the benefits (in particular, specific information about the relevance of the proposed standard and the market needs that it aims to satisfy); and any negative consequences of producing a European standard. The ESOs responded that a combination of both bottom-up and top-down approaches would be apposite, whereby national standards organisations (NSOs) would be able to submit standardisation projects at the European level when the market need arises (for instance, in the case of call centres) and ESOs would regularly examine services sectors to identify needs for new standards. Before the adoption of the Services Directive in 2006, a second programming mandate was produced by the Commission. This time, CEN was the only addressee. 74 At the outset, the Commission felt the need to underscore the traits of the European standardisation system: transparency, openness and participation, consensus, voluntary character. 75 First, the then recent Decision of the TBT Committee at the WTO level on the principles of international standardisation rendered such a reminder opportune. 76 Recall that the 70 This was notably due to the country of origin principle. See the discussion in P. Delimatsis, Thou Shall Not (Dis)Trust : Codes of Conduct and Harmonization of Professional Standards in the EU (2010) 47 C.M.L. Rev See Commission, DG Enterprise, Programming mandate addressed to CEN, CENELEC and ETSI in the field of services, M340 - EN (8 October 2003). 72 See General Guidelines [2003] OJ C91/7, section See European Environmental Citizens Organisation for Standardisation: [All accessed 11 July 2016]. 74 Commission, DG Enterprise, Second Programming Mandate Addressed to CEN in the field of services, M 371 EN (19 July 2005). 75 See also Council s Resolution on the role of standardization in Europe [1999] OJ C141/1. The Commission was adamant very early on as to the fact that the presumption of conformity that the New Approach offers would only be justified if the ESOs abide by certain due process principles, including transparency, openness and participation. See Commission, Efficiency and Accountability in European Standardization under the New Approach COM(1998) 291 final, para WTO, TBT Committee, Second Triennial Review of the Operation and Implementation of the Agreement on Technical Barriers to Trade, Annex 4: Decision of the Committee on Principles for the Development of International Standards, Guides and Recommendations with Relation to Articles 2, 5 and Annex 3 of the Agreement, G/TBT/9 (13 November 2000).

86 Articles 525 TBT Committee identified six principles that international SSOs have to adhere to: transparency; openness; impartiality and consensus; effectiveness and relevance; coherence; and addressing the concerns of developing countries. 77 In addition, allegations about exclusion; limited possibilities for participation by interested parties, including consumers; and lack of due process resolutely drew public scrutiny on standard-setting practices. 78 Owing to the unsatisfactory state of the single market for services and the failure of previous top-down approaches, the Commission urged the leading ESO to focus on new standards (or deliverables) that have added value for the EU as a whole, that is, projects that cover a clear need and have an impact on EU trade or upon users of services at the EU level, acknowledging that significant trade gains can be achieved from new EU service standards that could boost EU s scanty competitiveness. 79 In line with the TBT Committee Decision but also the ISO fundamental principles underlying the importance of transparency, due process, wide participation and consultation, 80 the Commission emphasised the need to adopt an open, multi-stakeholder approach that would involve service suppliers and users, consumer representatives and other societal stakeholders. In order to fulfil this mandate, CEN undertook various projects in the following years focusing on the horizontal level (i.e. the creation of a Horizontal European Service Standardisation Strategy-CHESSS, for which the BSI, the British standard-setter, took the lead) but also on a sector-specific level (such as consultancy engineering services, welcome and reception services, recruitment services, IT outsourcing and smart house services). Based on this mandate, CEN prepared a number of feasibility studies to evaluate the challenges of standardisation activities in services. However, progress in the development of European service standards has been slow. 81 In the period , only 24 new European service standards were created, as opposed to 453 national standards. 82 This represents about 5 per cent of the overall standardisation activity in services, compared with over 20 per cent in the area of goods. If one also considers that the Professional Qualifications Directive (PQD) was adopted in that same period, 83 then it becomes clear that the Commission was willing to give a new impetus to the internal market for services through a more coherent strategy. The PQD did not go as far as to establish common requirements as far as the professional skills for a given service supplied are concerned. However, it still 77 For a discussion, see P. Delimatsis, Relevant International Standards and Recognised Standardisation Bodies under the TBT Agreement in P. Delimatsis (ed.), The Law, Economics and Politics of International Standardisation (Cambridge: Cambridge University Press, 2015). With the exception of the principle relating to developing countries, the EU standardisation system considers the WTO principles as the founding principles of European standardisation. See Regulation 1025/2012, Recital For an application of the Commission s view as to openness, transparency and participation, see the structural remedies agreed in the International Association of Classification Societies Ltd (IACS) case: see Commission s Decision in Case COMP/ Ship classification, 14 October A summary is to be found in [2010] OJ C2/5. For the views on the other side of the Atlantic, see US Department of Justice and the Federal Trade Commission, Antitrust Enforcement and Intellectual Property Rights: Promoting Innovation and Competition (April 2007). 79 Already in the mid-noughties it became clear that the EU would have a hard time to achieve its objective to become the most competitive and innovative economy in the world by 2010, as set out in the notorious Lisbon Strategy. See also André Sapir et al., An Agenda for a Growing Europe Making the EU Economic System Deliver (Sapir Report) (July 2003). Interestingly, the Sapir Report did not seem to recognise the value of intensifying efforts to standardise services supply. 80 See also ISO List of fundamental principles of the ISO system, as approved by Council under Resolution 25/1999 (1999), Responsibility 4a. 81 While considered a flexible, quasi-legislative technique, standard development can take several years. Cf. EC Commission Staff Working Paper, The Challenges for European Standardization (2003). 82 See Commission, Moving forward to enhance and accelerate the sustainable growth of the European economy by 2020 COM(2011) 311 final, p.14. The EU Standardisation Regulation and this Communication constitute the two key pillars of the so-called Standarization Package. 83 Directive 2005/36 [2005] OJ L255/22.

87 526 European Law Review was a very important improvement when compared with the previous general system. 84 This is so because the PQD provides for the mutual recognition of professional qualifications for regulated professions. With respect to services, it also constitutes a hallmark legislative development, as it extends this framework beyond establishment to require recognition of qualifications of those professionals who temporarily offer their services in an EU Member State other than their home country. In this respect, the PQD, other than confirming the automatic recognition for certain professions such as doctors, architects or midwives, 85 calls in essence for mutual recognition of practical experience for professionals. 86 Thus, this Directive materialised, at least in part, the basic tenets of the country of origin principle. 87 The EU Services Directive and the call for standards in services in the new EU standardisation system For some, the final text of the Services Directive was disappointing not only because of the absence in the final draft of the country of origin principle 88 but also owing to the relatively high number of services sectors that were excluded. Nevertheless, the Directive has been important in one specific respect, for our purposes: it upgraded to the most prominent concepts the freedom to provide services and the freedom of establishment for service suppliers. In addition, it clarified that home country control should be the rule rather than the exception 89 and that host country control can only take measures in exceptional circumstances relating to the safety of a given service. 90 For this deregulatory construct to function smoothly, standardisation is a prerequisite, as it is there to compensate for the lack of legal rules on services supply and entails a more politically palatable bottom-up approach. The Services Directive includes a soft-law-type, yet very important chapter entitled Quality of Services, which in essence attempts to communitarise the concept of quality in the services realm and, in addition, draw a common policy on this issue, which will include measures ensuring transparency on quality marks; co-operation among professional bodies, chambers of commerce or consumers associations to establish common methods for assessment of professional competence; and development of voluntary service standards at the EU level to facilitate compatibility between services supplied in different Member States, increase transparency and ensure the quality of service supply. 91 The Preamble to the directive made clear that the number of quality marks and labels in services was increasing and, therefore, action in areas such 84 Directives 89/48 [1989] OJ L19/16 and 92/51 [1992] OJ L209/ Automatic recognition means that no discretion is left to the host country. See Ordre des architectes (C-365/13) EU:C:2014: See also art.4(1) of PQD. 87 The recent amendment of the PQD introduced the European professional card, a mechanism that will further lead to the erosion of protectionist biases by host Member States. See Directive 2013/55 amending Directive 2005/36 on the recognition of professional qualifications and Regulation 1024/2012 on administrative cooperation through the Internal Market Information System [2013] OJ L354/ This principle was replaced by the principle of free movement in services under art.16 of the Directive. For its exact scope, see Commission, Handbook on the implementation of the Services Directive (2007), p See also Commission v Portugal (C-458/08) [2010] E.C.R. I This is also in line with the expression of the principle of mutual recognition in the area of services in cases like Säger v Dennemeyer & Co Ltd (C-76/90) [1991] E.C.R. I-4221; [1993] 3 C.M.L.R. 639; or Cipolla v Fazari (C-94/04) [2006] E.C.R. I-11421; [2007] 4 C.M.L.R See Services Directive art.18 in conjunction with art See Services Directive art.26(5). This should not be taken to mean that technical standards in the area of services left the EU legislator indifferent. On the contrary, the directive calls for the creation of common technical standards where feasible. See, for instance, arts 8(3) or 21(4).

88 Articles 527 as tourism services was necessary. 92 It also referred to the possibility of specifically tasking the ESOs with the creation of pan-european standards in services. 93 This is an interesting development, suggesting a new soft law approach to regulate quality of services. This approach is to be based on a series of instruments such as certification, quality charters, labels and quality marks, methods for assessing the competence of service suppliers, testing and voluntary European standards. It is to be elaborated by professional bodies, chambers of commerce, consumer and business associations as well as standardisation bodies, acting jointly or in isolation from one another. From the above it becomes clear that the intent of the drafters is to use in the field of services the extant infrastructure on technical standardisation in the area of goods and the first programming mandate addressed to the three ESOs only corroborates this view. 94 Contract law and the possibility for standardising contractual terms in services contracts an area whereby EU law has barely evolved also acquired new interest owing to the wording of the directive. 95 After the acknowledgement of the failure of the Lisbon strategy, the Barroso Commission revamped the everlasting attempt to complete the single market as the means to resolutely move towards the achievement of the Europe 2020 strategy for smart, sustainable and inclusive growth. 96 The Monti Report in drew the attention of the EU institutions to the untapped potential of the service sector, which remained fragmented, with high levels of regulatory diversity that dissuaded cross-border services trade. The Single Market Act underscored that the new strategy for services within the EU should evolve around two axes: the full and immediate implementation of the Services Directive and the more determined shift towards the creation of European standards for services on the occasion of the review of the European standard-setting system, 98 priority being given to business-to-business (B2B) services, such as logistics or facility management services, but also business services in general (business-to-consumers, B2C, including professional services), construction and tourism. 99 On business services in particular, owing to its growth-enabling potential, a High-Level Group on Business Services was created. 100 Parallelism (or complementarity) between internal and external policies in services was also considered as a strategic objective for the EU external trade policy as a way to achieve the Europe 2020 agenda. 101 Such coherence and complementarity have to be part of regulatory co-operation initiatives with major third countries, including first and foremost the US within the framework of the negotiations for a 92 Services Directive, Recital See the analysis of the first programming mandate for service standards based on art.26(5) below. 94 See Commission, The State of the Internal Market for Services COM(2002) 441 final. 95 See also H.-W. Micklitz, Services Standards: Defining the Core Consumer Elements and their Minimum Requirements (19 April 2007), p See Commission, Europe 2020 A strategy for smart, sustainable and inclusive growth COM(2010) 2020 final. 97 See the Report on a new strategy for the single market at the service of Europe s economy and society (Monti Report) (2010), [Accessed 11 July 2016]. 98 The inclusion of services in the standard-setting system would also coincide with increasing the effectiveness, efficiency and inclusiveness of standard-setting processes at the European level. See also Commission, An Integrated Industrial Policy for the Globalization Era COM(2010) 614 final. 99 See Commission, The Single Market Act COM(2011) 206 final, pp This was also part of the Europe 2020 strategy flagship initiative on industrial policy, showing the importance of standardisation for industrial policy in both goods and services within the EU. See Commission, Europe 2020 A strategy for smart, sustainable and inclusive growth COM(2010) 2020 final. Business services is also one of the growth-enabling sectors on which the EU has aggressive interests in the negotiations with the US for a Transatlantic Trade and Investment Partnership (TTIP). 101 See Commission, Trade, Growth and World Affairs Trade Policy as a core component of the EU s 2020 strategy COM(2010) 612 final.

89 528 European Law Review Transatlantic Trade and Investment Partnership (TTIP). 102 For the time being, focus and negotiating efforts have been on technical barriers to trade in goods, but services may follow suit. This will be not only because the ISO has already been too active in the area of services to leave the US and the EU indifferent, 103 but also because standardisation in certain growth-enabling sectors such as business services may be key in the process of further integrating the transatlantic market. Overall, the upgrade of the importance of standardisation in the EU has been one of the hallmark developments in recent years. After an extensive review of the EU standard-setting system in the period , the European Council in 2011 called for accelerated, simplified and modernised standardisation processes within ESOs to boost EU s competitiveness and first mover advantage in such diverse areas as energy efficiency, electric vehicles, security or smart grids. As one would expect, owing to its importance as net creator of growth and jobs, services is also one of the areas in which the EU wants to pioneer in an ever-expanding EU-controlled market. A review of the new Standardisation Regulation In its strategic vision for standards that accompanied the new Regulation on standardisation, 104 the EU identified the following strategic objectives for the ESOs: (a) expedited availability of (interoperability) standards in the information and communications technology (ICT) sector; (b) keeping pace with ever faster product development and shorter innovation cycles; (c) adequately responding to increasing demand to perform the supportive role to EU policies and legislation; (d) improving the representativeness and inclusiveness of standardisation processes and renewing the commitment in the values of openness, transparency and scientific solidity; and (e) supporting the competitiveness of European firms. As one can infer, the new standard-setting system within the EU provides for a much closer partnership between the EU political institutions and the ESOs. ESOs output becomes a de facto legislative tool in the service of the EU s objectives to become more competitive. This is particularly the case for mandated standards, which, after their preparation by the ESOs, acquire a quasi-public law function through their incorporation in EU legislative instruments. 105 The Commission calls for a more inclusive and open approach to European standardisation without nevertheless compromising on quality. 106 A follow-up procedure is also in place to ensure, for instance, that functional communication channels exist to allow for directly concerned parties to follow developments within ESOs. 107 It also puts pressure on ESOs to become more efficient. In this regard, EU s financial support to ESOs becomes conditional on their performance not only in terms of productivity, but also based on the respect of substantive and procedural guarantees such as representation, relevance or timeliness. It is the first time that conditionality appears so emphatically in a 102 For the current state of play in the TTIP negotiations (in the case of services, advances have been made on telecoms and professional services), see [Accessed 11 July 2016]. 103 See for example, some of the relevant ISO standards that have been adopted the last 5 to 10 years such as ISO on customer codes of conduct; ISO on network services billing; ISO on complaints management; and ISO on dispute resolution. 104 See Commission, Moving forward to enhance and accelerate the sustainable growth of the European economy by 2020 COM(2011) 311 final, p See, by analogy, the confirmation in (C-171/11) EU:C:2012: This is also in line with the General Guidelines [2003] OJ C91/ See Commission, Vademecum on European Standardization Part II: European standardization in support of European policies Chapter 4.2: Follow-up of Mandates (15 October 2009).

90 Articles 529 Communication by the Commission addressed to the ESOs. 108 In the Commission s view, standards development could be accelerated so that the average time for the production of ESOs deliverables is shortened by half, to 18 months from 36 months currently, by With respect to service standardisation, the Commission underscored the disappointing progress that was made. Only 3 per cent of all standards are service standards at the European level. On the other hand, a rapid growth of national standards in services takes place, raising compliance costs for businesses and thereby putting services market integration into jeopardy. The extension to services of the material scope of the new Regulation on European standardisation is therefore regarded as crucial in order to minimise the possibilities of conflicting national standards and allowing the Commission to issue mandates for standards development in the services sector after consulting economic actors and stakeholders to ensure that future standards meet the principle of relevance as established in the TBT Committee Decision. 109 This addition to the Regulation indirectly acknowledges the delay (some would call it failure) of the Services Directive in this field. Indeed, art.26(5) of the Directive alone was regarded as an insufficiently strong driver of change inducing the creation of pan-european service standards. 110 In this regard, the Standardisation Regulation adopts a more decisive stance by essentially paving the way for the expansion of the New Approach to Services. 111 The Regulation s vantage point is that the delineation between goods and services becomes less compelling nowadays, as standards for goods sometimes have a service component and, vice versa, service standards often relate in part to goods. According to the Regulation, standards for services are, like goods, market-driven, should take into account the public interest and adhere to the fundamental principles of European standardisation: coherence, transparency, openness, consensus, voluntary character, independence from special interests and efficiency. Owing to the novelty of the field, the Regulation prioritises the creation of standards in services linked to products and processes. 112 The Regulation provides that a service standard is a document that prescribes technical requirements to be fulfilled by a service or system and which lays down the characteristics required of a service including levels of quality, performance, interoperability, environmental protection, health or safety, and including the requirements applicable to the provider as regards the information to be made available to the recipient of the service. 113 Furthermore, the Regulation calls for transparency and public availability of standardisation activities in NSOs and ESOs thereby establishing much-needed communication channels through mandatory notification. 114 In addition, it reiterates the need for a multi-stakeholder approach in setting standards, notably as far as the participation of SMEs is concerned Having said this, it appears that the costs of standard-setting by ESOs is mainly borne by the industry (currently over 90 per cent). The Commission s (or EFTA s) contribution is estimated to be around 2 per cent. See Impact Assessment accompanying the Proposal for a Regulation on European Standardisation SEC(2011) 671 final, p As noted earlier, the principles enshrined in the TBT Committee Decision are considered as equally applicable and in fact binding in the context of ESOs, through their reference to the EU Standardisation Regulation. 110 Again, as noted below, the new programming mandate for standardisation in services (see fn.117) is based on art.26(5) of the Services Directive. A possible explanation for the Commission s procrastination may be the fact that proper transposition and implementation of the Services Directive has been a priority for the Commission. 111 Note, however, that, for the time being, the framework of the Transparency Directive 98/34 does not apply to services (other than ICT services). See fn See Regulation 1025/2012, Recital Regulation 1025/2012 art.2. The Regulation here cross-refers to art.22 of the Services Directive, suggesting the type of information on service suppiers that could be standardised in the near future. 114 See Regulation 1025/2012 arts 3 and NORMAPME is the organisation that represents SMEs interests in the EU standardisation system. It is financed by the European Commission. The new EU Standardisation Regulation provides in Annex III the conditions under which pan-european entities representing SMEs, consumers, or social interests can be eligible for Union financing. See Regulation 1025/2012 on European standardisation [2012] OJ L316/12. In December 2013, a new organisation, Small Business Standards (SBS), was created, again with the support of the European Commission, to further enhance

91 530 European Law Review In art.9, the Regulation describes the procedure for the issuance of a mandate addressed to a given ESO. It bears mention that the ESO can deny the mandate. If it accepts the mandate and subsequently creates the harmonised standard in accordance with the corresponding EU harmonisation legislation, then a reference of the standard must be published promptly in the Official Journal. This would suggest that, just like in the case of goods, compliance with a harmonised service standard would create a rebuttable presumption of conformity with EU law, shifting the burden of proof to the host country authorities. 116 Thus, voluntary standards would become proxies for the assessment of compliance with EU law, but also national law of a given Member State in the case of secondary harmonisation measures. However, any Member State or the European Parliament can object to the standard. In that case, it is for the Commission, after consultations, to publish, not to publish or publish with restriction to the Official Journal the references to the harmonised standard. Service standardisation 2.0 towards the creation of horizontal standards In 2013, the European Commission issued a new programming mandate addressed to all three ESOs for the programming and development of horizontal service standards. 117 Interestingly, the mandate M/517 is not based on the new Standardisation Regulation, but on art.26(5) of the Services Directive. The Commission referred to Mandate M/371 and the CHESSS study which was completed in 2008 and made the case for a single generic, horizontal service standard as a facilitating device of intra-eu services trade. 118 In this mandate, however, the Commission suggested that developing narrower horizontal service standards for particular aspects of a given service may meet market needs. 119 Such aspects would include handling of complaints, outsourcing of services, the provision of inclusive services for vulnerable persons and so on. In the mandate, the Commission asks the ESOs to develop a clear programme for the development of this type of horizontal standard and also to develop a number of voluntary horizontal European service standards that would meet market and societal needs, while raising the quality of services. At the outset, the Commission asked ESOs to identify existing horizontal standards at the national and international levels on issues relating to design (e.g. risk assessment, resource planning); supply of information to consumers (e.g. description of service, marketing and awareness, reference to the contract or agreement); the service supplier (e.g. human resources, subcontracting, compliance with legislation, after sales service); terms of services contracts; billing; and complaints and remedies. At the end of phase I, the Commission asked the ESOs to report on possible needs relating to the development of European horizontal service standards and develop a roadmap and a tentative work the role of European SMEs in the standard-setting process. The new organisation established in the aftermath of the adoption of the new Standardisation Regulation appears to be a top-down attempt to address critisism relating to the difficulties on getting access to European standardisation: see, for instance, European Parliament Resolution of 21 October 2010 on the future of European Standardisation, 2010/2051(INI), para.40; also K. van Elk and R. van der Horst, Access to Standardization Final Report, Study for the European Commission, DG Enterprise and Industry (10 March 2009). 116 See also Opinion of A.G. Trstenjak in (C-171/11) EU:C:2012:176 at [19]. 117 Commission, Mandate Addressed to CEN, CENELEC and ETSI for the programming and development of horizontal service standards, M/517 EN (24 January 2013). In the same month, the Commission issued a second, broader yet sector-specific service-related mandate on interpretation services: Commission, Request addressed to CEN, CENELEC and ETSI for standardisation activities regarding facilities and equipment for interpretation services, M/516 EN (23 January 2013). 118 See CHESSS Feasibility Study CEN s Horizontal European Services Standardization Strategy in response to Mandate M/371 (July 2008), %20inc%20Modules%201%202% pdf [Accessed 11 July 2016]. 119 Whereas it may seem difficult to develop horizontal standards, some of the most successful ISO standards such as the management-related standards ISO 9001 and ISO have been horizontal.

92 Articles 531 programme. 120 In November 2014, CEN reported that there were 94 national and international horizontal standards on the seven issues mentioned above. 121 In addition, and more importantly, CEN identified six areas whereby horizontal service standards could be developed. These are: service terminology; information to the client before, during or after the supply of the service; service procurement; service contracts (both B2B and B2C) and performance measurement and customer satisfaction measurement (both at the post-supply stage). 122 The list largely coincides with the issues identified by the European Commission in Mandate 517 EN, but, crucially, it appears to take into account parallel work currently underway at the ISO level. The Commission accepted the report by CEN in May 2015 and requested that CEN develop European horizontal (i.e. common to all service sectors) service standards in the areas of measurement of performance; service contracts; and service procurement with a view to further enhancing cross-border provision of services within the EU. In this respect, a new CEN Technical Committee on Services Procurement, contracts and performance assessment would be established. 123 This is a very promising development towards the completion of the internal market for services. Regardless of whether it sounds as if the EU legislator attempts to develop European contract law through the backdoor, 124 the fact remains that a missing link from the EU services integration puzzle may be about to emerge at last. Issues of professional liability and lack of ambiguity in contractual terms in services contracts (including public procurement contracts) seem to have become priority for the EU Commission. Annex I of the Mandate M/517 could not have been more eloquent on this. In this concerted effort, the Commission becomes the orchestrator: just as in the case of goods under Directive 98/43, absent any technical expertise in-house, the Commission in the case of service standards would buy the services of ESOs with respect to standards development. If satisfied with the quality of the standards requested but also the procedural guarantees within the ESO, it will attribute them an authoritative, public law legitimacy veil through their publication in the EU Official Journal. Central to the Standardisation Regulation is further the adoption of annual work programmes on standardisation to identify the strategic priorities for European standardisation not only at the European level but also at the international level. In the EU standardisation programme for 2015, 125 the Commission identifies those areas where ESOs will become strategic partners of the EU legislature to support the EU s new or existing legislation and policies. One of the most mature areas of service standards is postal services, and the Commission aims to support the development of e-commerce by improving parcel delivery through enhanced interoperability of parcel-delivery operations. Parcel delivery services will be part of a mandate on the side of the Commission, which may also ask the review of current European standards in postal services Within CEN, the Strategic Advisory Group on Services (CEN/BT/WG 214 SAGS) is the co-ordination body on policy and strategic matters on service standard-setting. For its terms of reference, see ftp://ftp.cencenelec.eu/cen /WhatWeDo/Fields/Services/SAGS_termsreference.pdf [Accessed 11 July 2016]. 121 The report was finalised in early See CEN, Mandate M/517 for the Programming and Development of Horizontal Service Standards Phase I: Final Report (February 2015), ftp://ftp.cencenelec.eu/cen/whatwedo/fields /Services/FinalReportPhase1-M517.pdf [Accessed 11 July 2016]. 122 See also ftp://ftp.cencenelec.eu/cen/news/2014/events/services/4_palmer.pdf [Accessed 11 July 2016]. 123 BSI proposed to assume the secretariat of the new TC. See [Accessed 11 July 2016]. 124 Cf. Micklitz, Services Standards: Defining the Core Consumer Elements and their Minimum Requirements (19 April 2007), p See Commission, The annual Union work programme for European standardization for 2015 COM(2014) 500 final. 126 Commission, The annual Union work programme for European standardization for 2015 COM(2014) 500 final, p.5.

93 532 European Law Review In line with the focus on a sectoral basis, healthcare services also form part of the annual standardisation programme, whereby a new mandate will request examining the possibility of standardising horizontal aspects of various healthcare services. This is a sector that has drawn a lot of attention in recent years, not least because of challenges in the regulation of and intra-eu trade in medical devices. In view of the importance of the sector, an ad hoc group on healthcare services was established to assess the state of the art in the sector and identify the value-added of future standards in healthcare services. Finally, and quite crucially, the work programme initiates a long-awaited discussion: whether safety (as opposed to quality) standards in services should also be part of the agenda of ESOs for the years to come. The agenda refers to tourism services as an example, but obviously the scope of work on safety in service supply is much broader than this. The work programme pledges broad consultations to identify market needs. 127 Depending on the fate of Mandate M/517, a programming mandate on safety standards in services in the very near future cannot be excluded. The ESOs also have their own annual programmes. In the area of services, the CEN and CENELEC work programme 2014 consisted of the finalisation of phase I of Mandate M/517, the co-operation with ISO on the development of standards regarding facilities and equipment for interpretation services (Mandate M/516), and the initiation of new standardisation activities relating to the service chain for social care alarms, and the competences of customs representatives. CEN is also becoming more active in healthcare services beyond standard-setting in medical devices. Thus, it has published a standard on aesthetic surgery services (EN 16372); continued the work towards a standard for aesthetic non-surgical medical services; and start work on services of medical doctors with additional qualification in homeopathy. Finally, it has continued its work on security services. In addition to the standard on airport and aviation security services (EN 16082), CEN finalised a standard on port and maritime security services (EN16747) and reflects on the market need for a standard on civilian security services. In the work programme of CEN for 2015, 128 ESOs announced their intention to move to phase 2 of the execution of Mandate M/517 relating to the preparation of a generic service standard. The first horizontal deliverable regarding to services is expected to originate in CEN s Project Committee Service Excellence Systems (CEN/TC 420) which currently works on the preparation of a CEN technical specification setting out requirements and guidelines for consumer-centred service excellence systems. DIN runs the secretariat for this quality-related services deliverable. At the sectoral level, CEN is expected to complete work on non-surgical aesthetic medical services (pren16844) and services of medical doctors with additional qualification in homeopathy (pren ), whereas the work on CEN and CENELEC on security services continues apace. In addition, standardisation work will bear fruit in 2015 in the areas of pest management (EN 16636) and tattooing services. In the area of professional services, CEN/TC 432 will start working on competency requirements for customs representatives. The latter is a pertinent development for standardisation in professional services and paves the way for more intensive work with a view to identifying common ground among the various EU Member States on professional qualifications. Along with the newly launched idea on a European professional card, this may be key for mutual recognition in various professions. Business services should be one of the areas that will come to the forefront in the near future, also because of the current TTIP negotiations and the importance of the sector for both the EU and the US Commission, The annual Union work programme for European standardization for 2015 COM(2014) 500 final, p See CEN/CENELEC, Work programme 2015 European Standardization and related activities (2015), p Business services in the EU have an annual turnover of about 2000 billion. One third of the EU-28 extra-eu exports and imports in 2013 were in business services, contributing 219 billion of EU-28 extra-eu exports and 146 billion of EU-20 extra-eu imports. The category other business services has a surplus of 73 billion for the EU-28 extra-eu trade in services, the highest in the EU. See Eurostat, International Trade in Services, 2015, [Accessed 11 July 2016]. At the

94 Articles 533 In its final report, the High-Level Group on Business Services made clear that standard-setting in services is not only necessary but also feasible in the short run. 130 It underlined the importance of collaborative standard-setting created at the European rather than at the national level (also with respect to public procurement of business services) through the identification of clearly defined approaches and mechanisms in a manner that enhances consumer s confidence to the capabilities of the business service supplier. The report considers standardisation as an opportunity for industry experts and stakeholders to influence the rules of the game after public consultation and via consensual decision-making procedures that identify best practices. In this sense, when compared with alternative regulatory, market-based or informative measures, standardisation in this sector has more advantages. 131 In addition, the group recommended action in ensuring the mutual recognition of certification schemes based on the forthcoming European standards, which would cater for the current fragmentation that divergent national certification schemes create. 132 The report made reference to issues relating to standards in professional liability, data standards for technologically enabled business services, standardising terminology, risk assessments and so on. However, taking the incomplete market for facility management services as a case study, the expert group also warned that sometimes the existence of a European standard alone is not a panacea when it comes to cross-border activities. In cases, for instance, where the traits of a given services sector do not allow for extensive cross-border activity (take, for instance, the cleaning services sector which is dominated by small and medium-sized sometimes even family enterprises), mutual recognition of competencies certified at the national level but based on European service standards would be the most appropriate avenue. Conclusion Standard-setting in services is still in its infancy after about 20 years of considerable, yet fragmented attempts to create market-relevant, sector-specific standards in the field. At the international level, the numbers are telling. Services-related standards within ISO account for only a small fraction of ISOs overall output. About 4 per cent of ISO standards relate to services. In financial services, ISO has adopted to date about 60 standards affecting everyday financial transactions. However, in certain service sectors, like the financial sector, the value-added of standardisation is much more substantial than the absolute number of standards would suggest. Take the case of the Personal Identification Number (PIN) standard, ISO Thus, it would be too reductive an approach to say that progress on service standards is disappointing based on the mere, absolute number of such standards. The same goes for business-related services. In addition, in both financial and business-related services, a multiplicity of standard-setting actors exists which create standards of varying relevance, legitimacy and influence. 133 More generally, standardisation in services is here to stay and will continue growing, as awareness about the importance of streamlining services and processes as inputs to products in a globalised market is raised. Through the renewed focus on trade in services, the EU plays a leading role in international EU level, business services represent over 11 per cent of EU s GDP. See Commission, The implementation of the Services Directive A partnership for new growth in services COM(2012) 261 final, p High-Level Group on Business Services, Final Report (April 2014), pp Interestingly, the group consisted of various ad hoc working groups, including a standards and related instruments ad-hoc working group : p High-Level Group on Business Services, Final Report (April 2014), p The group suggested that Keymark, the current pan-european voluntary certification system, could also be used in this case. 133 For instance, consider standards on systemic risk avoidance adopted within the Basel Committee on Banking Supervision or the Capability Maturity Model Integration (CMMi) relating to business processing services developed by the Software Engineering Institute. On the latter, see J.-C. Graz and N. Niang, Connecting India: The Rise of Standards in Service Offshoring (2012) 32 Services Industries Journal 2287.

95 534 European Law Review developments in this field. The most important national SSOs in the EU such as BSI (UK), AFNOR (France), DIN (Germany) or NEN (the Netherlands) are unvaryingly active within ISO and other relevant fora. In this respect, substantial cross-fertilisation occurs as knowledge acquired is used within both the ESOs and ISO to inform the adoption of standards in services. An open issue remains the level of co-ordination between ESOs and ISO to ensure that no overlap or duplication of work occurs. The China Electronic Payment Services dispute before the WTO highlights the genuine risks of fragmentation absent co-ordination devices among standard-setters globally. The creation of horizontal (that, is, across services sectors) standards is the most ambitious part of the new standardisation agenda. 134 Based on the substantial body of acquis communautaire and the relatively homogeneous economies of EU Member States, success in this area appears to be likely. At the political level, doubts were lifted long time ago: the EU Single Market Act and the Services Directive are unequivocal as to the benefits that service standardisation can have and thus high hopes accompany the European Commission s mandates directed to the ESOs. New standards can be important proxies for extensive and unprecedented mutual recognition in services. Finally, one of the strongest points of the European standardisation system has traditionally been its high level of centralisation, that is, the fact that there is a presumption in favour of action at the ESO level rather than the national level since the New Approach. More centralisation is indeed desirable. The creation of a centralised information system seems to be an important building block in this respect. 135 A second timely step appears to be a discussion as to the distribution of work between ESOs an international SSOs. Taking a look at 60 years of European integration in the service sector, the adoption of qualitative standards appears to have the largest potential for benefiting the sector. The EU Services Directive attempts to spell out the concept of quality of service and the soft-law, voluntary compliance approach that characterises standard-setting is currently regarded as the option with the highest chances of success. The recent decision to proceed with phase II of Mandate M/517 EN exemplifies the importance of qualitative elements in setting standards in the field of services. The focus on downstream markets and increasing interest in upstream regulatory co-operation to eschew technical barriers to trade in the forthcoming transatlantic partnership reveals that the EU will most likely not be alone in pursuing further this agenda of setting standards to services sectors globally. 134 The dual approach arguing for simultaneous work on horizontal and vertical aspects of service standardisation appears to be the result of a compromise among national SSOs. See J.-C. Graz, Standardizing Services: Transnational Authority and Market Power in K. van der Pijl (ed.), Handbook of the International Political Economy of Production (Cheltenham: Edward Elgar, 2015), p.132 at p See EY, Independent Review of the European Standardization System Final Report (commissioned by the European Commission) (March 2015).

96 Enhancing Energy Security in the EU: Pathways to Reduce Europe s Dependence on Russian Gas Imports Tom Dyson Royal Holloway College, University of London Theodore Konstadinides University of Surrey European Union; Gas supply; Internal market; Renewable energy; Russia; Security of supply Abstract Should Russia escalate the Ukraine crisis, or threaten other States in the post-soviet space, the EU will need to be able to apply hard-hitting sanctions against Russian energy exports. However, the divergent dependence of European States on Russian gas imports will make it very difficult to achieve consensus on such sanctions. This article analyses the recent measures that the EU Commission has initiated to help reduce the dependence of European States on Russian gas. It explores the scope of EU competence to reduce Member State dependence on Russian gas in three key areas: promoting the use of renewables and energy efficiency; completing the internal energy market; and strengthening the EU s position vis-à-vis external gas suppliers. The article s conclusions examine the political factors which will hinder or enable the EU to promote greater gas supply security. Introduction This article examines the measures that the EU can take to enhance security of its gas supply and thereby strengthen its ability to apply effective sanctions against Russia. 1 It focuses, in particular, on the intersection between the legal and political dimensions of energy security. An analysis of the interaction between EU law and the political drivers of EU energy policy is essential in understanding the state of play in European energy security. The 2014 Energy Security Strategy and 2015 Energy Union indicate that the European Commission is increasingly determined to use competition law and antitrust legislation to restrict the leverage of Gazprom on the European gas market. The Ukraine-Russia crisis has also led the Commission to be more willing to push ahead with the internal energy market by enforcing competition law and by ensuring binding EU energy efficiency and renewables targets are met. At the same time, many European States are resistant to these efforts by the Commission owing to a variety of short-term economic and political incentives, including the desire to protect national energy industries and jobs and to ensure low energy prices over the short term. The formal competence of the EU Commission in energy policy will, therefore, be a key determinant of the EU s ability to promote the implementation of the important measures 1 Energy security has two key dimensions: security of supply and acceptable cost. See G. Bahgat, Europe s Energy Security: Challenges and Opportunities (2006) 82 International Affairs

97 536 European Law Review contained in the Energy Security Strategy and the Energy Union, especially the completion of the internal energy market, and strengthening the EU s position vis-à-vis external energy suppliers. The article begins by undertaking an overview of EU competence in the field of energy. It then highlights the urgency of tackling energy insecurity in the EU by exploring the implications of European States dependence on Russian gas for the EU s ability to tackle Russian revisionism. The article proceeds by analysing the measures which the EU has proposed to enhance Europe s security of gas supply since the onset of the Ukraine-Russia crisis: the Energy Security Strategy and the Energy Union. It highlights that while progress has been made in areas such as gas infrastructure, other areas, such as diversifying gas supplies, creating an internal EU energy market and fostering a stronger level of European energy efficiency and self-sufficiency are taking longer to implement. The article then considers the legal competence of the EU in three key areas which will be central to European energy security: promoting the use of renewables and enhancing energy efficiency; completing the internal energy market and strengthening the EU s position vis-à-vis external gas suppliers. The article concludes by reflecting on the factors which will facilitate the Commission to help foster greater security of energy supply in Europe. An overview of EU s legal competence in the field of energy The EU s competence on energy One experiences a certain degree of déjà vu in current EU deliberations about a single energy market. This is because energy monopolised Europe s early integration agenda manifested in the establishment of the so-called European Coal and Steel Community (ECSC) in 1951, and the EURATOM in The ECSC Treaty is symbolic of the early stage of European integration, where Member States undertook the task of pooling their coal and steel resources together and lifting restrictions on imports and exports, thereby creating a single coal and steel market. Similarly, under EURATOM, the European Commission obtained the status of a supranational regulatory authority in three areas: radiation protection, supply of nuclear fissile materials and nuclear safeguards. Since the Treaty made no reference to fixed criteria as regards the standardisation of design, operation and maintenance of nuclear installations, regulatory activities in the sphere of nuclear energy evolved by means of the national authorities and to a lesser degree by international organisations and agencies. 2 The co-existence of European, international and national actors as well as the potential legislative bases to the energy sector inherent in EURATOM (arts 31, 32 Euratom) and the former EC Treaty (arts 95, 152 and 175(1) EC) posed questions as to the most appropriate legislator in the area of nuclear law. The above competence conundrum remained unresolved for years to come. For instance, at the time of the UK s accession to what was then the European Economic Community (EEC) in 1973, the Treaty maintained no express legal basis that would enable the EU to adopt energy measures. Instead, a range of general provisions based on substantive law (such as the four freedoms) of the EEC Treaty provided the legal basis for legislation in the field of energy. These included specific powers under the Treaty that enabled the EU legislature to regulate the Single Market or general powers to pursue the then Community s objectives. While the EU could therefore act peripherally touching upon areas connected to energy in order to liberalise the European energy market, the lack of an express provision in the field confirmed that energy as a policy area remained in the sovereign reserve of the Member States. When it came to energy security, for instance, the majority of the Member States favoured the conclusion of a multilateral treaty which took the form of the Energy Charter Treaty (ECT) that came into force in The ECT 2 The Convention on Nuclear Safety was adopted in 1994 by a diplomatic conference convened by the International Atomic Energy Agency. It was ratified by all Member States and entered into force in 1996.

98 Articles 537 was signed by 52 States, the EU and Euratom and provided a legal framework for international energy co-operation. It set a commonly accepted foundation observed by the participating governments, thus minimising the risks associated with energy-related investments and trade. 3 Russia accepted provisional application of the ECT it initially signed the ECT but officially refused to ratify it and proposed a new energy charter in While the ECSC Treaty expired on 23 July 2002, the Euratom Treaty stayed in force maintaining the same aim of developing EU nuclear industry. It still remains an independent settlement and has not been reformed by an intergovernmental conference. This confirms the EU s unsettled legal jurisdiction in the area of nuclear safety but, as mentioned above, did not necessarily suggest the lack of legal bases in the former EC Treaty with an indirect relevance to nuclear sector standards. For instance, although the EC Treaty did not include a specific Title on Energy that would enable it to promote internal energy market liberalisation, there were still avenues for the EU legislature to push legislation carrying such an impact. For instance, former art.95 EC (the current art.114 TFEU, internal market legal basis) was available and could be employed to protect the consumer, once existing disparities in national product safety rules (e.g. the treatment of foodstuffs by ionising radiation) hindering the functioning of the internal market (e.g. the free movement of foodstuffs) created conditions of unequal competition. 5 In the same vein, energy security legislation emerged in the form of secondary legislation, such as Directive 2001/77 6 on renewables, Directive 2003/30 7 on biofuels (both repealed by Renewable Energy Directive 2009/28 8 ) and Directive 2004/67 concerning measures to safeguard security of natural gas supply (later replaced by Regulation 994/2010). 9 It was adopted in 2004 with a view to foster an internal gas market between the Member States and provided for reporting obligations for national governments. Almost at the same time, a regional treaty between EU Member States and eight countries of south-east Europe was agreed in 2005 in order to create a regional gas market the Energy Community (of South East Europe). Four years later, the Treaty of Lisbon, which came into force in 2009, resolved the EU s legal jurisdiction in the field of energy. It provided for the first time a Title in the Treaty proper in the field of energy. Article 194 TFEU creates a new competence for the EU legislature with the aim to ensure that Member States can diversify their energy supplies and improve competitiveness: 1. In the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States, to: (a) ensure the functioning of the energy market; (b) (c) ensure security of energy supply in the Union; promote energy efficiency and energy saving and the development of new and renewable forms of energy; and 3 The ECT is available at [Accessed 11 July 2016]. See for an analysis of the ECT: P. Cameron, The EU and Energy Security: A Critical Review of the Legal Issues in A. Antoniadis et al. (eds), The European Union and Global Emergencies: A Law and Policy Analysis (Oxford: Hart Publishing, 2011), p See for a brief summary: P. Roche and S. Petit, Russia s withdrawal from the Energy Charter Treaty Norton Rose Fullbright Publications (August 2009), /russias-withdrawal-from-the-energy-charter-treaty [Accessed 11 July 2016]. 5 See European Parliament v Council (Chernobyl) (C-70/88) [1990] E.C.R. I-2041; [1992] 1 C.M.L.R. 91. Treaty legal bases on Environment, Transport and Common Commercial Policy also provided opportunity for energy-related measures. 6 [2001] OJ L283/33. 7 [2003] OJ L123/42. 8 [2009] OJ L140/16. 9 [2004] OJ L127/92. Regulation 994/2010 concerning measures to safeguard security of gas and repealing Council Directive 2004/67 [2010] OJ L295/1.

99 538 European Law Review (d) promote the interconnection of energy networks. 2. Without prejudice to the application of other provisions of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the measures necessary to achieve the objectives in paragraph 1. Such measures shall be adopted after consultation of the Economic and Social Committee and the Committee of the Regions. Such measures shall not affect a Member State s right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply, without prejudice to Article 192(2)(c). 3. By way of derogation from paragraph 2, the Council, acting in accordance with a special legislative procedure, shall unanimously and after consulting the European Parliament, establish the measures referred to therein when they are primarily of a fiscal nature. Indeed, art.194 TFEU provides the EU and its Member States with a shared competence. As it is traditionally the case with all areas of shared competence, the Member States are pre-empted by the EU legislative Institutions exercise of power. Having said that, EU competence in the field of energy is not unconstrained. There is an express caveat in the use of the EU s new energy competence. Article 194(2) TFEU reduces the pre-emptive effect of EU legislation in the field by confirming that that the adoption of measures which affect a Member State s right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply is prohibited. Consequently, such measures can only be adopted on the basis of other, non-energy specific provisions, such as by unanimous decision of the Council in accordance with art.192(2)(c) TFEU, namely environmental measures significantly affecting a Member State s choice between different energy sources and the general structure of its energy supply. Hence, the bottom line is that while the EU possesses the constitutional and institutional ammunition to act collectively on behalf of its Member States in the field of energy it does not have such competence in all fields of policy. The above argument is crucial especially when it comes to energy security, one of the key aims of EU energy policy according to art.194(1)(b) TFEU. Energy security is commonly meant to entail, at least from a Brussels perspective, the EU s capacity to secure access to energy supplies in order to correspond to the energy needs of its Member States. 10 In this context, energy becomes a strategic resource and, as such, internal energy market liberalisation falls short of addressing European energy security concerns, including security of supply. This is because there are developments beyond the international energy sector that transcend the economic terrain and pose numerous geopolitical challenges to the EU. For instance, there is little doubt that dependence on oil imports from rogue states constitutes a threat to EU security. The same applies to the dependence of a number of Member States on Russian gas. In light of such threats, the externalisation or securitisation of the EU s internal energy market has become a necessity in order to ensure pan-european (and by extension global) energy security. Indeed it would not be a fallacy to conceive the EU as a market power on the world stage with full capacity to externalise its (internal) market policies and regulations in a multilateral context. 11 Energy security provides a fertile ground where the EU can project itself as a (market-based) normative power outside the contours of Common Foreign and Security Policy (CFSP) and, therefore, externalise its constitutive market values. 10 See R. Leal-Arcas and A. Filis, Conceptualizing EU Energy Security through an EU Constitutional Law Perspective (2013) 36 Fordham International Law Journal 1225; P. Aalto and D. Korkmaz Temel, European Energy Security: Natural Gas and the Integration Process (2014) 52 J.C.M.S See C. Damro, Market Power Europe: EU Externalisation of Market-Related Policies, MERCURY E-paper No.5 (October 2010), [Accessed 11 July 2016].

100 Articles 539 In contrast to the relatively limited ability of the EU to exert external influence through CFSP, 12 the EU possesses considerable power-tools to force its modus operandi externally owing to its status as a large and established energy market. This occurs, for instance, via a combination of liberalisation of the energy market and the use of coercion against both Member States and third countries vis-à-vis the security of EU s energy supplies. Indeed, the externalisation of internal market policies has often been described as the EU s most successful external action, premised on a core feature of the EU s identity the prevalence of its market order. 13 While energy securitisation has boosted the EU s ability to develop a coherent external policy and become a global energy player, 14 it has been noted in the past that, the Member States remain divided by different economic and geopolitical interests and the EU has not yet been given enough competences to implement such a double-standard approach. 15 The following subsection explores whether things are different now that the EU has obtained an express energy competence in the Treaty. It also discusses whether its energy competence extends to energy security and, therefore, provides the EU with a robust presence in the policy field. Energy security as a new EU external policy It is important to ascertain where the EU s legal authority lies in energy security as placed in the terrain of EU external competence. EU external competence in the field of energy security, or the lack of it, constitutes a major stumbling block for the EU s development and external profile-building in energy matters. This is the case despite the fact that the EU s action at the international level is augmented by the Treaty in the form of express provisions regarding its legal personality (art.47 TEU), the capacity to negotiate agreements with third countries or international organisations (art.218 TFEU) and the possibility of pursuing common policies and actions to safeguard EU values, fundamental interests, security, independence and integrity (art.21(a) TEU). As such, the EU may only employ its implied powers under art.216(1) TFEU in order to conclude international agreements in the field of energy. This provision provides that: The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union s policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope. Article 216(1) TFEU therefore establishes that EU competence may emerge not only from an express conferment by the Treaty but may equally flow implicitly from other provisions of the Treaty (such as art.194 TFEU in the context of energy) and from measures adopted within the framework of those provisions by EU institutions. 16 What is more, the CJEU has accepted that whenever EU law creates, for EU institutions, 12 See for a detailed analysis of CSDP: T. Dyson and T. Konstadinides, European Defence Co-operation in EU Law & IR Theory (Basingstoke: Palgrave Macmillan, 2013). 13 C. Carta and J.-F. Morin, EU Foreign Policy through the Lens of Discourse Analysis: Making Sense of Diversity (Farnham: Ashgate, 2014), pp See the Commission s 2015 energy strategy, which aims to reduce dependence on Russia to a minimum. Available at [Accessed 11 July 2016]. 15 R. Metais, Ensuring Energy Security in Europe: The EU between a Market-based and a Geopolitical Approach, College of Europe EU Diplomacy Paper 03/2013, p See for an analysis of EU implied powers in the external field and their codification in art.216(1) TFEU: T. Konstadinides, EU Foreign Policy under the Doctrine of Implied Powers: Codification Drawbacks and Constitutional Limitations (2014) 39 E.L. Rev. 511.

101 540 European Law Review powers within its internal system for the purpose of attaining a specific objective, the EU has authority to undertake international commitments necessary for the attainment of that objective even in the absence of an express provision to that effect. Hence, post-lisbon, international agreements on energy security are based either on the objectives or on a decision adopted within the area of the energy provisions of the Treaty. This is because, as explained, despite the external character of energy policies, there is no express external competence for the EU to act in the field. Implied powers under art.216(1) TFEU may therefore be of use to the Council in this new field. This section charted the journey from the early days of the EU to the present day. Since its inception in the form of Coal and Steel Community and Euratom, the EU has pushed for the establishment of a pan-european energy market. This endeavour became more manifest following the establishment of the European Community which promoted peripherally its internal market model in the field of energy through inter alia Environmental and Competition legal instruments. In recent years, while keeping loyal to the maintenance of a functional internal energy market, the EU has become more ambitious especially with regard to ensuring security of supply and producing as well as the production and use of sustainable energy. The current state of play in EU competence is capable of promoting the EU s post-lisbon energy agenda on energy security and sustainable energy. Current art.194 TFEU provides for a direct harmonised approach in energy policy where Member States seem to be transferring more control to the EU. At the same time, the Treaty also caters for a uniform approach vis-à-vis the security of energy supply. Article 122 TFEU provides a textual guarantee to Member States that in a spirit of solidarity they would receive assistance in case their energy supplies are cut off (in the occurrence of a similar scenario to the January 2009 Russia-Ukraine gas dispute). 17 Both arts 194 and 122 TFEU can also be utilised as leges speciales to promote energy efficiency and sustainable/renewable energy. The above competences of the EU are also significant to the conduct of EU external energy policy, especially EU s reliance on Russian energy the implications of which have significant ramifications for European security. Energy security and EU leverage over Russia s economy and foreign policy While the development of the EU s competence in energy security has been an incremental affair, the Ukraine-Russia conflict forms a critical juncture in EU energy security that highlights the urgent need to enhance and enforce the EU s competence in energy security. 18 The 2006 and 2009 Ukraine-Russia gas disputes, which led to the reduction of gas supply to several EU Member States, provided a first warning of the potentially negative implications of EU dependence of Russian gas. However, the impact of energy security concerns on the EU s response to the Ukraine-Russia conflict has starkly exposed the negative foreign policy implications of gas supply insecurity. Russia s use of military force to annex Crimea and its support for pro-russian separatists in Eastern Ukraine highlights its nature as a revisionist power that also poses a threat to other post-soviet states with large Russian minorities. 19 The ability of sanctions to achieve change to the foreign policy calculus of States has received a significant degree of attention in the scholarly literature. 20 However, the utility of military force in tackling Russian revisionism is limited, not least given Russia s nuclear capabilities. 17 See on the 2009 dispute between Russia and Ukraine described as an emergency : Cameron, The EU and Energy Security in The European Union and Global Emergencies (2011), pp See for recent proposals on how can the EU reduce its dependency on Russian gas: R. Leal Arcas et al., The European Union and its Energy Security Challenges (2015) 8 Journal of World Energy Law and Business W. Mead, The Return of Geopolitics: The Revenge of the Revisionist Powers, Foreign Affairs (May/June 2014). 20 See, for detail: B. Early, Busted Sanctions: Explaining Why Economic Sanctions Fail (Stanford: Stanford University Press, 2015); D. Drezner, The Sanctions Paradox: Economic Statecraft and International Relations (Cambridge: Cambridge University Press, 1999).

102 Articles 541 Hence sanctions, despite their questionable effectiveness, offer the best coercive tool for the EU and NATO in their attempts to force change to Russian policy in the post-soviet space. To date, EU and US sanctions have focused on key individuals within the Russian business sector, military and foreign policy elite. Sanctions have also limited Russia s access to capital markets and to technology for oil exploration and production and have banned arms exports to Russia. 21 However, these sanctions lack the necessary severity to incentivise a change of course in Russia s policy to Ukraine. Only sanctions which target Russia s energy sector, especially its oil exports, which comprise around half of the revenue of the Russian state, will be sufficiently coercive to force change in Russian foreign policy. Europe is well placed to apply such sanctions as, in 2013, 80 per cent of Russian oil exports went to European countries. 22 However, Europe has displayed little willingness to consider sanctions against Russia s oil exports. This is not due to fears about an oil crisis, as the EU would be able to compensate for loss in Russian oil through tanker deliveries. 23 Instead it is a consequence of the difficulties that Europe faces in diversifying its gas imports. 24 The UK and France import a limited quantity of Russian gas; however, Germany and a number of CEE States exhibit a high level of dependence on Gazprom. 25 Germany imports 36 per cent of its gas imports from Russia and its energy companies have benefitted from a privileged relationship with Gazprom, having negotiated favourable energy prices when compared with CEE States. 26 However, affordability has come at the expense of Europe s supply security, highlighted most notably by the construction of the Nord Stream gas pipeline in 2005, which bypasses CEE States by transporting gas directly to Germany. 27 Divergence in dependence on Russian gas imports has had a significant effect on the willingness of Britain, France and Germany to enact sanctions on Russia s energy sector. Britain has been keen to limit the effects of sanctions on the City of London. 28 Hence during sanction negotiations in 2014 Britain sought tougher sanctions against oil and gas imports and arms exports. 29 France, with an eye on maintaining its 21 See for current EU sanctions against Russia: N. Kushner, Sanctions and Export Controls Update (2015) 129 Compliance Office Bulletin 1. See also Ukraine crisis: Russia and sanctions (19 December 2014), BBC News, http: // [Accessed 11 July 2016]. 22 S. Six, Russia s Oil Export Strategy: Two Markets, Two Faces, CIEP Paper (2015), p.15, [Accessed 11 July 2016]. 23 Interview 1, section A2, Cooperation in the IEA and bilateral energy cooperation with non-oced states, Ministry for Economic Affairs and Energy, Berlin (13 August 2014). 24 For further detail on deficits in EU gas supply security see the following section. 25 In 2013 Russia exported billion cubic metres (Bcm) of natural gas to Europe. 8.6 Bcm went to France; 41 Bcm to Germany and 16.6 Bcm to the UK. For information on the dependence of CEE states on Russian gas, see R. Dickel et al., Reducing European Dependence on Russian Gas: Distinguishing natural gas security from geopolitics, OEIS Paper NG92 (October 2014), p R. Fuchs, Germany s Russian energy dilemma (29 March 2014), Deutsche Welle, /germanys-russian-energy-dilemma/a [Accessed 11 July 2016]. 27 Duda slams Russia s second Baltic gas pipeline to Germany (9 September 2015), Euractiv, [Accessed 11 July 2016]. 28 A. Monaghan and J. Rankin, EU and US sanctions against Russia: who will they hurt more? (30 July 2014), Guardian, N. Watt, UK seeking to ensure Russia sanctions do not harm City of London (3 March 2014), Guardian, Russia s trade ties with Europe (4 March 2014), BBC News, Europe s dependency on Russian gas may be cut by energy efficiency focus (9 September 201), Guardian, /europe-dependency-russian-gas-energy-efficiency-eu [All accessed 11 July 2016]. 29 R. Mason and P. Wintour, UK to press European allies for tougher sanctions over MH17 (21 July 2014) Guardian, S. Wagstyl,

103 542 European Law Review lucrative arms exports to Russia, has attempted to limit sanctions to financial sector. 30 Germany, the most exposed of the West European countries to Russian gas imports, has displayed the greatest reticence to apply sanctions against the Russian energy sector. 31 In sanction negotiations Germany has been eager to ensure that sanctions would not harm the Russian energy sector and has attempted to limit sanctions to the financial sector. 32 However, given Russia s contravention of the Minsk agreements and its willingness to use military force to seize territory, European States must be prepared to apply more far-reaching sanctions against the Russian oil and gas sectors. It is, therefore, imperative that Europe tackles its deficits in gas supply security. The EU s energy security initiatives following the Ukraine-Russia crisis Before and following the gas crises the European Commission has been vocal in its warnings about the dangers associated with the dependence of European States on Russian gas. The EU has undertaken several initiatives which have sought to enhance Europe s energy security in short-term gas supply crises. These initiatives include the above-mentioned Directive 2004/67 (as replaced by Regulation 994/2010), which included the establishment of the Gas Coordination Group to foster a better information exchange information between member states, the Commission, industry and consumers. 33 The 2008 Commission Communication Second Strategic Energy Review: An EU Energy Security and Solidarity Action Plan outlined, among a range of other measures, the need to diversify Europe s gas supplies through the Mediterranean and Southern Corridor. 34 Finally, the Third Energy Package of 2009 also attempted to enhance Europe s energy efficiency and self-sufficiency by pushing ahead with the internal energy market. 35 Yet, EU Member States have been slow to implement these directives and policy recommendations and as a consequence the EU was largely unprepared for the energy security implications of the Ukraine-Russia crisis. Several major problems persist in EU energy policy that act to exacerbate dependence on Russian gas and weaken the EU s ability to challenge Russian revisionism. First, the energy relations of European States with third parties remain highly fragmented, with individual Member States negotiating separate deals with Gazprom and other energy suppliers. This not only increases the cost of gas for smaller European States, but also endows Gazprom with the ability to use the promise of lower gas prices to divide European States. Moreover, as outlined in the introduction, the EU has been slow to diversify its external gas suppliers, with Russia remaining the dominant source. The South Stream Merkel s harder stance on Russia fuels anxiety for companies (3 July 2014), Financial Times, /intl/cms/s/0/fa025df4-02b4-11e4-a68d-00144feab7de.html#axzz36mdpa3q7 [Both accessed 11 July 2016]. 30 Wagstyl, Merkel s harder stance on Russia fuels anxiety for companies (3 July 2014), Financial Times, / [Accessed 11 July 2016]. 31 While the agreement of more recalcitrant European States such as Greece will be important in ensuring a co-ordinated EU approach to sanctions, the leadership of Britain, France and Germany will be essential in securing EU consensus. See C. Oliver, EU fails to agree new Russia sanctions (29 January 2015), Financial Times, / [Accessed 11 July 2016]. 32 B. Benoit and A. Thomas, Germany s Merkel walks fine line in Russia standoff (3 March 2014), Wall Street Journal, [Accessed 11 July 2016]; Interview 1, section A2, Cooperation in the IEA and bilateral energy cooperation with non-oced states, Ministry for Economic Affairs and Energy, Berlin (13 August 2014). 33 For further detail, see Directive 2004/67 concerning measures to safeguard security of natural gas supply, /eur-lex.europa.eu/legal-content/en/txt/?uri=celex:32004l0067 [Accessed 11 July 2016]. 34 See, Energy Security and Solidarity Action Plan, =URISERV:en0003; Council Conclusions on Second Strategic Energy Review: An EU Energy Security and Solidarity Action Plan (19 February 2009), [Both accessed 11 July 2016]. 35 See Third Package, 2009, [Accessed 11 July 2016].

104 Articles 543 project which would have supplied Europe with 63 billion cubic metres of Russian natural gas per year was cancelled by Russia in December 2014 in the face of opposition from the EU Commission, which found the project in contravention of EU rules on the unbundling of gas supply and transport. 36 However, EU States have, on the whole, been very slow to act on the Commission s longstanding warnings about the potential security risks associated with increased dependence on Russian supplies. In addition, the EU has also faced problems in developing the infrastructure that will allow the EU to take advantage of liquefied natural gas (LNG) and ensure that gas can be transferred between EU States in the event of a crisis. It also urgently needs to improve its solidarity mechanisms in gas crises, including the collective purchasing of gas. Furthermore, European States have made slow progress in developing the hardware (electricity and gas transmission infrastructure) and the software (the regulation) necessary to implement the internal energy market. This has led to the creation of separate national energy islands which undermine energy efficiency and the roll-out of renewable energies, and consequently reduce European energy self-sufficiency. Finally, for the internal energy market to work effectively Europe needs to improve its co-ordination in the decarbonising of its economy and to ensure greater coherence between the environmental and security (both cost and supply security) dimensions of energy policy. For example, Germany whose Energiewende (energy transition) plans to achieve 30 per cent of German gross energy consumption from renewables by 2020 and 60 per cent by 2050, has made significant progress toward decarbonisation. However, other major EU States, such as France and the UK, are struggling to meet their commitment to the EU target of 20 per cent renewables in the total primary energy supply (TPES). 37 Attaining greater energy self-sufficiency through renewable energy can only be achieved with more co-ordinated action to promote decarbonisation and energy efficiency. A more credible far-reaching European commitment to renewables would help create the political will necessary for the integration of energy markets and the development of electricity transmission networks. Two major EU energy initiatives since the onset of the Ukraine-Russia crisis have sought to address some of these outstanding issues, with mixed results. The Energy Security Strategy The first of these initiatives is the May 2014 Energy Security Strategy. The Energy Security Strategy proposed two measures to strengthen security of energy supply over the short term (winter 2014/15), including enhancing cross-european co-ordination in crises and improving European gas infrastructure to facilitate the cross-border transfer of gas. The Energy Security Strategy also contains six proposals aimed at ensuring that Europe is in a stronger position to curb its dependence on Russian gas imports over the long term. First, the Energy Security Strategy outlines the need to moderate energy demand. It focuses on speeding up progress in meeting the EU energy efficiency target of 20 per cent by 2020 by focusing on the implementation of the 2012 Energy Efficiency Directive and Energy Performance of Buildings Directive. 36 J. Farchy and C. Oliver, Putin loses face with cancellation of pharonic South Stream (2 December 2014), Financial Times, [Accessed 11 July 2016]. 37 The UK s 2011 Renewable Energy Roadmap outlines plans for 15 per cent of total energy consumption to drive from renewables by 2020; however, the UK looks likely to miss this target. See UK and France May Miss Renewable Energy Target (16 June 2015), Guardian, -interim-renewables-target [Accessed 11 July 2016].

105 544 European Law Review The Energy Security Strategy also plans to ring-fence 27 billion of the European Structural and Innovation Funds to encourage private sector investment in energy efficiency. 38 Secondly, the Energy Security Strategy focuses on the urgent need to complete the EU internal energy market in electricity and gas. While noting progress in regional integration in the electricity and gas markets of Northern Europe through initiatives such as Nordpool (involving the integration of the Danish, Norwegian, Swedish and Finnish electricity markets) and the Pentalateral Forum (involving Austria, Belgium, France, Germany, Luxembourg and the Netherlands), the Energy Security Strategy recognises the need for similar progress in the Baltic States and States of South East Europe to establish critical infrastructure and hasten the development of gas hubs. 39 The Energy Security Strategy therefore identifies 27 short- and medium-term priority projects of common interest (PCI) in gas infrastructure which build upon the interconnector and LNG terminal projects outlined in the EU s third package of legislative proposals for electricity and gas markets. 40 The Energy Security Strategy also initiates six PCI interconnector projects in electricity infrastructure 41 focusing on the Baltic States, central and southern Europe and Iberia. 42 Thirdly, the Energy Security Strategy points to the need to increase energy production within the EU, in particular through increasing the proportion of renewable energy in the EU TPES from 14.1 per cent in 2012 to 27 per cent by The Energy Security Strategy also gives a hesitant green light to the use of controversial technologies, such as the extraction of shale gas, to help to offset the decline of Europe s conventional gas reserves in the North Sea. 44 Fourthly, the Energy Security Strategy highlights the necessity for greater support for new energy technologies to improve energy efficiency, enhance energy storage capacity and help to manage gas and electricity grids, arguing that that research in these fields should be prioritised in the Horizon 2020 Framework Programme for Research and Innovation. 45 Fifthly, the Energy Security Strategy stresses the importance of diversifying external gas supplies, especially through a focus on improving supply infrastructure with Norway, the states of the Caspian Sea Basin and exploring the possibility for taking advantage of the increasing global market in LNG. 46 Finally, the Energy Security Strategy calls for greater co-ordination between EU Member States in external energy policy. In particular it notes the importance of taking advantage of Decision 994/2012, which established an information exchange mechanism for intergovernmental agreements between EU Member States and third States in energy and the consequent potential provided by the Decision to involve the Commission in negotiation processes. The Energy Security Strategy also outlines plans to investigate the possibility of developing a procedure similar to the EURATOM Supply Agency s collective purchasing mechanism that would allow the Commission to object to any contracts with third parties which may have especially negative implications for security of gas supply Commission, European Energy Security COM(2014) 330 final (Brussels, 28 May 2014), p.7, [Accessed 11 July 2016]. 39 Commission, European Energy Security Strategy (28 May 2014), pp PCIs refer to infrastructure projects which allow EU States to integrate their energy markets and diversify energy sources. They are eligible for funding from the Connecting Europe Facility. See Commission, Energy Security Strategy (28 May 2014), pp Commission, Energy Security Strategy (28 May 2014), pp Commission, Energy Security Strategy, pp Commission, Energy Security Strategy, p Commission, Energy Security Strategy, p Commission, Energy Security Strategy, pp Commission, Energy Security Strategy, pp Commission, Energy Security Strategy, pp

106 Articles 545 The Energy Union The Energy Security Strategy was followed by the Energy Union initiative, which was first proposed by the former Polish President, Donald Tusk, in April Tusk proposed that six principles should stand at the heart of the Energy Union: the joint negotiation of gas contracts with Russia; strengthening solidarity between EU States in the event of gas crisis; increasing the level of EU co-financing of storage gas capacity and interconnectors to 75 per cent; focusing on the ability of fossil fuels to help diversify Europe s energy supply; signing joint agreements with key global gas exporters in LNG such as the US and Australia and finally, strengthening the Energy Community. 48 Two of the above proposals proved controversial with other EU Member States, especially Germany. The Polish proposal for collective EU bargaining with Russia met with resistance from Germany owing to its potential to contravene EU competition law and the difficulties that Germany would face in forcing companies, in a liberalised energy market, to form a consortium. The comparatively low prices that German companies pay for Russian gas in comparison with CEE States has also played an important role in reducing the incentive to pursue collective bargaining with Gazprom and to explore the diversification of pipeline supplies. 49 Furthermore, the Polish proposal that Europe should begin to explore the potential of coal and fracking was anathema to German policy-makers, given their commitment to the Energiewende. Hence, the Commission s Energy Union Package of February 2015 waters down these two contentious proposals. Instead, the Package undertakes a number of measures which build upon the Energy Security Strategy by establishing in a more explicit and detailed manner a greater level of coherence between all dimensions of EU energy policy with ramifications for energy security. The Energy Union provides greater detail on how the EU plans to make progress in four key areas: diversifying supply and promoting greater European solidarity in negotiations with third parties; creating a fully integrated European energy market; moderating demand through energy efficiency and decarbonising the economy; and finally, improving research, innovation and competitiveness in energy. First, the Energy Union Package highlights the need to diversify gas supply through increased LNG imports and imports through the Southern corridor, the Mediterranean and Algeria. The package notes the importance of including energy-related provisions in trade agreements with key potential energy suppliers in Europe s neighbourhood. It also emphasises the importance of a stronger role for the Energy Community, in particular, enhancing the integration of the EU and Energy Community states by incentivising energy market reforms and ensuring the implementation of the EU s energy, environment and competition acquis. 50 These goals will be outlined in a proposed resilience and diversification package in that will revise the existing security of gas supply regulation, alongside a comprehensive strategy for LNG and its storage. The Energy Union also includes measures to enhance the crisis-management ability of the EU in the event of a gas supply crisis, including a commitment to develop emergency plans which will include Energy Community members to create options for the collective purchasing of gas by Member States where they are dependent on a single supplier (subject to compliance with WTO and EU competition rules) as part of a revision of the Security of Gas Supply Regulation D. Tusk, A united Europe can end Russia s energy stranglehold (21 April 2014), Financial Times, [Accessed 11 July 2016]. The Energy Community is an international organisation that was established in It includes the EU and countries from the Black Sea region and South-East Europe and is tasked with extending the EU internal energy market to these States. 49 S. Meister, Energy Union: the view from Berlin (7 May 2014), European Council on Foreign Relations, http: // [Accessed 11 July 2016]. 50 Commission, Energy Union Package COM(2015) 80 final (Brussels, 25 February 2015), pp.5 7, [Accessed 11 July 2016]. 51 Commission, Energy Union Package (25 February 2015), pp.6 7.

107 546 European Law Review In addition, the Energy Union develops proposals to strengthen the EU s ability to act more harmoniously in negotiations with third countries. It outlines, in particular, the need to strengthen the role of the Commission in intergovernmental agreements and commercial agreements in order to ensure that such agreements are in compliance with EU law. Hence the package outlines the intention of the Commission to review the 2012 Intergovernmental Agreements Decision 994/2012, which established an information exchange mechanism with respect to agreements between Member States and third countries in energy. This review will focus on ensuring that the Commission has the power to ensure agreements are compatible with EU legislation before negotiations are concluded; on securing the involvement of the Commission in such negotiations; on developing standard clauses specifying EU rules, and on increasing the transparency of commercial gas supply contracts. 52 Secondly, in order to help promote the use of renewable energies and develop the hardware for the internal energy market, the Package proposes that a minimum interconnection target of 10 per cent in electricity interconnection between Member States be achieved by 2020, rising to 15 per cent by Private sector investment is to be encouraged by funding from the European Investment Bank, Connecting Europe Facility, European Structural and Investment Funds and the European Fund for Strategic Investments. 53 The Energy Union also provides further detail on its plans to ensure that the software of the internal energy market is in place through the strict enforcement of the Third Internal Energy Market Package, especially in the fields of the independence of regulators and the unbundling of energy supply and distribution networks. It outlines the importance of using instruments such as antitrust enforcement to end territorial restrictions in supply contracts and the enforcement of competition law to regulate the evolution and formation of energy prices. In addition, the Energy Union plans to push for the enhancement of the powers of the Agency for the Cooperation of Energy Regulators (ACER) that was established in 2010 by the Third Internal Energy Market Package. It is intended that these new powers will provide the ACER with the powers necessary to oversee the development of the market rules necessary for the completion of the internal energy market. These reforms to ACER will be delivered as part of a review of the regulatory framework of the Third Internal Energy Market Package, including a review of the role of the European Networks of Transmission System Operators for Electricity and Gas (ENTSO-E/G). 54 The Energy Union also outlines the intention of the Commission to more strictly enforce mechanisms such as the Environmental and State Aid Guidelines which were adopted in April These rules on State aid are designed to redress the distortions of the internal energy market which result from national subsidies for renewable energy, including the introduction of a competitive bidding process for state support in order to gradually expose renewables to the energy market. 56 In addition, the Energy Union emphasises the intention of the Commission to use competition law to block the below-cost regulation of energy prices which can discourage both investment and the entrance of new companies to energy markets. 57 Thirdly, the Energy Union includes a number of measures to promote energy efficiency in its review of the EU s 2030 energy efficiency target of 30 per cent, including enhancing energy efficiency in the buildings sector and decarbonising the transport sector. These aims will be delivered through ensuring that initiatives promoting building energy efficiency are able to access financing more easily and developing a comprehensive road transport package dealing with infrastructure, new transport solutions and energy 52 Commission, Energy Union Package, p Commission, Energy Union Package, p Commission, Energy Union Package, pp Commission, Energy Union Package, p Guidelines on State aid for environmental protection and energy (28 June 2014), [Accessed 11 July 2016]. 57 Commission, Energy Union Package (25 February 2015), p.10.

108 Articles 547 efficiency. The Commission will also propose a new Renewable Energies Package in , including a focus on sustainable biomass and fuels. 58 Finally, the Energy Union includes proposals to enhance innovation, research and competitiveness in the EU energy sector, including, among other issues, promoting greater coordination and focus in research to maximise the efficiency of spending on research. Hence in the Commission plans to propose a European energy R & I approach that updates the Strategic Energy Technology Plan and strategic transport R & I agenda. Implementing the Energy Union legal challenges Having identified the main challenges to enhancing energy security in the EU, this section will now turn to focus on the legal competence of the EU in three key areas which will are central to European energy security: promoting the use of renewables; completing the internal energy market; and strengthening the EU s position vis-à-vis external gas suppliers. Promoting the use of renewables At first glance, the lead role that the EU has played in efforts to tackle climate change suggests that optimism may be warranted about the potential for renewables to provide a partial solution to Europe s dependence on Russian gas by increasing Europe s energy self-sufficiency. However, while the Energy Union boldly claims that the EU is already on track to achieve its 2020 target of 20% renewable energy in its energy mix, the Commission s 2015 renewables progress report highlights that a number of key EU States, including France, Luxembourg, Malta, the Netherlands, the UK, Belgium, Spain, Hungary and Poland, will all face difficulties in meeting the 20 per cent target. 59 The Energy Union rightly includes measures to try to stimulate a greater use of renewables in the transport sector, where significant problems have occurred in meeting the 2020 goal of 10 per cent renewables in this sector. It also sets out plans to foster more coherent pan-european research and innovation in renewable energy. 60 However, the upmost priority for the Commission must be to ensure that it enforces the 2009 Renewable Energy Directive 2009/28 which sets national targets and measures for the use of energy from renewable sources to be achieved by Unlike its now repealed predecessors (Directive 2001/77 on renewables and Directive 2003/30 on biofuels), the language of the 2009 Directive is mandatory, not permissive. In particular, art.4 obliges Member States to produce a renewable energy action plan setting national targets for the shares of energy from renewable sources in transport, electricity, heating and cooling. It also invites Member States to take measures in order to achieve those targets. Whether Member States will be apt to introduce pan-european measures effectively designed to ensure the share of energy from renewable sources depends, inter alia, on the powers and competences of the EU institutions to enforce the Directive and how they can go about making more use of these powers. In theory, the Commission can immediately initiate infringement proceedings under the (direct actions) art.258 TFEU procedure against non-compliant Member States for failure to properly implement the Directive. However, the Directive is using a softer tone vis-à-vis enforcement, not the least because it falls short of providing the Member States with a list of interim targets between now and For instance, 58 Commission, Energy Union Package (25 February 2015), pp See on the position in the Member States with regard to renewables: M. Peeters, Renewable Energy Law in the EU Legal Perspectives on Bottom-up Approaches (Cheltenham: Edward Elgar Publishing, 2014). 60 Commission, Renewable Energy Progress Report (16 June 2015), p For instance the Directive sets a target for the UK to achieve 15 per cent of its energy consumption from renewable sources by See National Renewable Energy Action Plan for the United Kingdom, /uploads/system/uploads/attachment_data/file/47871/25-nat-ren-energy-action-plan.pdf [Accessed 11 July 2016].

109 548 European Law Review art.4(4) of the Directive stipulates that Member States with a renewable energy sources share below the trajectory set out in the Directive (Part B, Annex I) need to submit within two years an updated action plan to the Commission. Similarly, art.5(2) of the Directive provides that Member States must inform directly the Commission in case they are unable to meet their share of renewable energy targets as a result of force majeure (overriding necessity). 62 The European Commission will then adopt a decision on whether a Member State has demonstrated that this is the case indeed and, if appropriate, modify its renewable energy targets. The above alternative mechanisms raise serious legal questions as to whether absolute compliance with the Renewable Energy Directive is mandatory prior to the cut-off date of What is more, even if the Commission decides to litigate en masse against Member States prior to 2020 owing to their failure to take effective measures for the use of energy from renewable sources, the lack of clarity in the Directive could provide an excuse for non-implementation. One could argue that Member States may even resort to the adoption of counter-measures against the EU by taking action against the EU institutions under art.263 TFEU owing to an alleged violation of art.7 TFEU by the EU legislature for failing to provide for consistency between EU energy policies and activities. 63 Another similar challenge for the EU is related to the enforcement of the more recent Energy Efficiency Directive which came into force in 2012 and establishes a set of binding measures to help the EU reach its 20 per cent energy efficiency target by the above-mentioned cut-off date of Again, the question shifts to the extent that the EU has powers to enforce this Directive, although still three years down the line Member States are still to fully address its correct implementation. The Commission has so far taken action against numerous Member States for failure to transpose the Directive in a timely manner. 65 Forcing an Energy Union through infringement proceedings against Member States, however, confirms the Member States lack of engagement in the energy integration process and their sovereign preference for their choice of resources. This is despite the political capital invested by the EU to address energy security and the salience of further convergence in the field. The internal dimension completing the internal energy market through competition law enforcement Additional to the energy legislative packages and initiatives discussed previously, the enforcement of EU competition law is vital for promoting a single energy market. If the EU is to successfully enhance its energy supply security, the Commission will need to enforce and enhance the software of the internal market: its regulatory powers, which will be central in ensuring the completion of the internal energy market. Yet, the Commission s ability to enforce competition policy in the field of energy has appeared relatively weak, with a number of pending investigations against Member States for failing to implement the provisions of the so-called Third Energy Package which included, among other measures, new provisions 62 See for instance Commission v Belgium (Belgian wood case) (77/69) [1970] E.C.R. 237; [1974] 1 C.M.L.R. 203, in which the Belgian Government pleaded that the dissolution of Parliament and the separation of powers had forced the failure to implement an EU Directive. 63 See E. Herlin-Karnell and T. Konstadinides, The Rise and Expressions of Consistency in EU Law: Legal and Strategic Implications for European Integration (2013) 15 Cambridge Yearbook of European Legal Studies Directive 2012/27 on energy efficiency, amending Directives 2009/125 and 2010/30 and repealing Directives 2004/8 and 2006/32; Text with EEA relevance [2012] OJ L315/1. 65 J. Crisp, 27 Member States hit with EU legal action over energy efficiency (26 March 2015), EurActiv, / [Accessed 11 July 2016].

110 Articles 549 on unbundling, allowing Member States to choose between ownership unbundling or setting up an independent system operator or an independent transmission operator. 66 Furthermore, apart from these positive integration steps, the Commission has utilised its negative integration power tools. More specifically, art.102 TFEU has proved to be an important regulatory tool to promote a single energy market by prohibiting the abuse of dominant position of energy companies operating in the EU internal market for both gas importation and supply. There are ongoing investigations against energy companies based in the Member States, such as the Bulgarian Energy Holding, Bulgargaz and Bulgartransgaz for preventing competitors access to key gas infrastructures in Bulgaria. 67 Such investigations prove that the Member States traditional opposition against ownership unbundling has been met with resistance from the part of the Commission. The Commission has instead adopted a regulatory approach in order to end infringements and restore effective competition to the energy market. During this decade, the Commission appears to have resolved most energy disputes under art.102 TFEU via resort to art.9(1) of Regulation 1/2003, which obliges undertakings to offer binding commitments in order to meet the Commission s concerns. If an undertaking breaks such commitments, the Commission may impose a fine of up to 10 per cent of the former s worldwide turnover, without having to find an infringement of the EU competition rules. Such commitment proceedings, although different from formal infringement proceedings (which often result in litigation and the imposition of fines), have contributed to an extent to the liberalisation of the EU energy markets because they have induced more uniform behaviour on the part of energy companies operating in the EU. 68 Commitments in high-profile cases, most recently evident in the Google case 69 (Google had, inter alia, to notify website owners of the option to opt out of display in Covered Web Pages of content crawled by the former s search user agents), have often been associated with the procedural modernisation of EU competition law and antitrust enforcement. 70 Yet, in the last two years the Commission seems to have changed its enforcement tactics it has gradually ceased to use commitments as a means to clamp down on the practice of dominant undertakings and has reverted to formal infringement proceedings. 71 This is perhaps because commitment proceedings take time (the Google case took about four years to resolve). Such cases also do not reach the CJEU and thus make no contribution to the formulation of legal precedent and provide no formal guidance on future abuses of dominant position. It is therefore argued here that regulatory support needs to be coupled with strategic litigation in the EU Courts in order to ensure the proper functioning of EU energy markets. In addition to commitment proceedings, and most importantly for the purpose of this article, the EU has enforced EU law more strictly against external suppliers vis-à-vis territorial restrictions in gas supply agreements and charging unfair prices. In this regard, the EU has, more recently, shown signs of beginning to flex its regulatory muscles against gas producers and suppliers such as Gazprom, as demonstrated by its successful opposition to South Stream s failure to unbundle gas supply and transport, as well as its 66 See Commission, Interpretative Note on Directive 2009/72/EC concerning common rules for the internal market in electricity and Directive 2009/73/EC concerning common rules for the internal market in natural gas The unbundling regime (Staff Working Paper) (2010). 67 See Commission Press Release: Antitrust: Commission market tests commitments by Bulgarian Energy Holding (BEH) concerning Bulgarian wholesale electricity market (Brussels, 19 June 2015). 68 See for an in-depth analysis of how EU competition law has shaped EU energy markets: M. Ioannidou, The Application of Article 102 TFEU in the EU Energy Sector: Mapping Substantive and Procedural Enforcement (2016, forthcoming with the author). 69 Foundem COMP/C-3/ D. Gerard, The Google commitments and the transformation of EU antitrust enforcement (17 February 2014), Kluwer Competition Law Blog, -transformation-of-eu-antitrust-enforcement/ [Accessed 11 July 2016]. 71 The only case on commitments proceedings in 2014 was Samsung AT

111 550 European Law Review pending antitrust case against Gazprom opened in 2012 for alleged abuse of dominant position in eight EU Member States. In essence, the Commission has argued that Gazprom has prevented cross-border trade, in particular gas flow from EU CEE Member States to their counterparts and has imposed territorial restrictions inclusive of export bans and destination clauses. Likewise, Gazprom has also contributed to market separation by charging Member States excessive prices. 72 This is a very important case and has received increasing attention following the Commission s statement of objections to Gazprom on 22 April 2015; the war in Ukraine, which erupted a year earlier; and the EU sanctions imposed against Russia. All in all, it appears that the Commission has taken an active stance using competition law enforcement to regulate the evolution and formation of energy prices. The law on abuse of dominance has also helped to stop instances of below-cost regulated energy prices, which can discourage both investment and the entrance of new companies to energy markets. As previously outlined, for instance, the EU has proposed its intention to more strictly enforce and also to review the Environmental and State Aid Guidelines adopted in April These steps aim to simplify and target enforcement rules according to competition threat and impact on the single market posed by market fragmentation through national support measures. The external dimension of the internal market the EU s position vis-à-vis external gas suppliers The export and import of energy products from and to third countries falls within the scope of the Common Commercial Policy. 73 In November 2010, a European Commission Communication provided that the EU must formalise agency on the part of the Member States when they conclude bilateral energy relations. 74 It also established that the Commission should be charged with the role of aligning existing international agreements with internal market rules and enhancing co-operation between Member States for the conclusion of new ones. Additionally, the European Council of 4 February 2011, while being mindful of commercially sensitive information, invited all Member States to inform the Commission of all their bilateral energy agreements with third countries with a view to sharing them between them. As a follow-up, EU legislation induced a compliance check of long-term bilateral agreements with the internal market. Decision 994/2012 on compliance of intergovernmental agreements with EU law exclusively addressed the Member States and provided, inter alia, for a framework on exchange of information between the Commission and Member States (art.3) and confidentiality (art.7) vis-à-vis past bilateral arrangements on reselling clauses and pricing clauses, to name but a few areas. Member States must also inform the Commission of such future intergovernmental agreements that may impact the internal market or security of gas supply. The Decision also set 2016 as a date for review (art.8) in order to update the Decision with a view to ensuring that the EU speaks with one voice in negotiations with third countries over energy matters. On the downside, the Decision leaves a wide margin for interpretation both in relation to the information that Member States should share with the Commission and the arrangements it considers to be compatible with the EU internal market. This legal uncertainty arising out of the text of the Decision does not 72 Commission, Commission sends Statement of Objections to Gazprom for alleged abuse of dominance on Central and Eastern European gas supply markets, Press Release IP/15/4828 (22 April 2015). See also A. Riley, Commission v. Gazprom: The antitrust clash of the decade?, CEPS Policy Brief No.285 (31 October 2012). 73 See S. Haghighi, Energy Security: The External Legal Relations of the EU with Major Oil and Gas Supplying Countries (Oxford: Hart Publishing, 2007), p See also earlier attempts in 2008 Commission. Energy Security and Solidarity Action Plan COM(2008) 781 final, Council Conclusions on Second Strategic Energy Review (19 February 2009), /pressdata/en/trans/ pdf [Both accessed 11 July 2016].

112 Articles 551 immediately constitute a cause for concern for Member States because the Decision only has a programmatic/guidance value. Most importantly, the Decision does not provide for a robust enforcement mechanism in cases where a Member State does not aspire to the Commission s open access policy. The EU legislature needs to take into account the above-mentioned problem areas during the revision of the Decision so that, first, it creates a clear set of obligations for information sharing from the part of the Member States rather than a mere open invitation to share based on goodwill and solidarity aspirations. It should also inform Member States as to what arrangements are compatible with EU interests, so as to be able to enforce its internal energy market rules through the Third Energy Package and Environmental and State Aid Guidelines. Last, the Decision needs to include a systematised enforcement mechanism in case of breaches of these obligations in order to achieve maximum legal/regulatory certainty and project it towards both EU-based and third-country undertakings. The above sentiments aside, it is questionable whether a future upgrade to the Commission s enforcement powers under the reviewed Decision may bring more security and solidarity in the EU external energy market. The current lack of enforcement seems more political than due to the poor powers of the Commission. For instance, it is unlikely that the Commission s powers could be enhanced in the near future with respect to completing the internal market but also with respect to the proposed review of Decision 994/2012 given the position of Member States and the eurosceptic European Parliament that recently voted down the Energy Security Strategy. What powers could the Commission be given ideally? The Energy Security Strategy seems to suggest that the EURATOM Supply Agency s collective purchasing mechanism provides a legal precedent for efforts to enhance the ability of the Commission to object to or even lock agreements with third parties with negative implications for supply security. EURATOM Supply Agency s ability to intervene in supply contracts between EU utilities and third-country producers appears sound in order to reduce dependency on Russia. A good example of its intervention is the nuclear-fuel supply deal signed in 2014 between Hungary and Russia, where the Agency asked for modifications in the fuel-supply contract of two 1,000 megawatt units at the Paks nuclear power plant. 75 Yet, there are two stumbling blocks in the work of the Agency in limiting EU utilities dependency on larger amounts of Russian supplies. First, given its sour relationship with the EU, Russia is consistently dealing with Member States outside EU structures through the signing of bilateral agreements with them (the so-called Turkish Stream Project between Russia and Greece is one example 76 ). Secondly, Member States are eager to make up for lost energy production by relying on nuclear fuel from Russia by disregarding both EU competition rules (i.e. the potential of Gazprom to dominate both upstream gas supply and distribution) and the EU instructions to diversify their external energy supplies. The EU also faces legal challenges in the diversification of external energy supply. While diversification of suppliers is worthwhile, especially from States in the Southern Corridor, this will be a long-term solution to reducing Europe s dependence on Russian gas and is associated with significant difficulties. 77 The ability of Europe to secure gas supplies from Central Asia has been restricted by disagreement over the 75 The content of the intergovernmental agreement has not been made public. See Centre for Eastern Studies (OSW), Russian-Hungarian Nuclear Agreement (15 January 2014), [Accessed 11 July 2016]. 76 See Greek energy minister unveils plan for 2bn gas deal with Russia (9 July 2015), Financial Times, / [Accessed 11 July 2016]. 77 Turkmenistan holds the world s fourth largest gas supplies: see Commission, Energy Union Package (25 February 2015), p.4.

113 552 European Law Review legal status of the Caspian Sea and problems attaining agreement from Turkmenistan which has focused on exports to China and Russia. 78 The ongoing Trans-Adriatic (due for completion in 2019) and Trans-Anatolian (set for completion in 2018) pipeline projects will supply Europe with 16 billion and 10 billion cubic metres of gas annually respectively. 79 Yet, the cancellation of South Stream, which would have supplied Europe with 63 billion cubic metres of Russian gas annually, delivers an opportunity to attain private sector investment for the Trans-Caspian Pipeline (TCP), which will import gas from Turkmenistan. The imperative of increasing gas imports from the Caspian Sea region is magnified by the uncertainties of gas supplies from North Africa, Iran and Iraq due to instability and conflict in the MENA region, while Eastern Mediterranean reserves are only capable of supplying 10 billion cubic metres of gas to the EU on a yearly basis. 80 Furthermore, Turkmenistan has become more receptive to diversifying its gas exports in recent months after Russia reduced its consumption of Turkmen gas exports. 81 As Dickel et al. note, the EU must now focus on helping to settle the legal status of the Caspian Sea, or at a minimum attain agreement from Azerbaijan and Turkmenistan that this will not be an obstacle to a TCP. 82 The EU Commission Vice-President, Maros Sefovic, has been making concerted diplomatic efforts to gain the support of Azerbaijan and Turkmenistan for a TCP. 83 However, attaining agreement from Azerbaijan and Turkmenistan will be a difficult process owing to their disputes over the distribution of Caspian Sea energy resources. 84 It is worth noting that the legal status of the Caspian Sea vis-à-vis territorial ownership and navigational rights goes back in time to the St Petersburg Treaty (1723), the Resht Treaty (1732) and the Treaty on Peace and Friendship (1921), where use of the Caspian Sea was shared between the USSR and Persia (now Iran). Following the collapse of the USSR, new post-soviet sovereign States subject to international law emerged (Russia; Azerbaijan; Kazakhstan; Turkmenistan). As such, the legal quest for an internationally accepted status, inclusive of multinational ownership of the Caspian Sea, became the subject of hard negotiation with the aim to sign a Convention on the Legal Status of the Caspian Sea. Despite the signature of bilateral agreements and protocols (e.g. between Russia and Kazakhstan in 1998 and 2002 respectively on the delimitation of the Northern part of the Caspian Sea for subsoil use; and the aforementioned countries and Azerbaijan in 2003) the determination of the legal status of the Caspian Sea and division into sectors as well as definition of common spheres of joint activity (such as 78 Interview 1, section A2, Cooperation in the IEA and bilateral energy cooperation with non-oced states, Ministry for Economic Affairs and Energy, Berlin (13 August 2014); Dickel et al., Reducing European dependence on Russian Gas (October 2014), p F. Dohmen and A. Jung, Cold turkey: How Germany could end Russian gas dependency (6 May 2014), Spiegel Online, html [Accessed 11 July 2016]; Dickel et al., Reducing European dependence on Russian Gas (October 2014), pp Dohmen and Jung, Cold turkey (6 May 2014), Spiegel Online, /german-alternatives-to-russian-gas-numerous-but-pricey-a html [Accessed 11 July 2016]; Dickel et al., Reducing European dependence on Russian Gas (October 2014), pp.17 29; A. Nelsen, Israel sees stars aligned for new gas pipeline to Europe (1 December 2014), Guardian, -sees-stars-aligned-for-new-gas-pipeline-to-europe [Accessed 11 July 2016]. 81 C. Oliver, EU courts Azerbaijan and Turkmenistan as links with Russia sour (25 February 2015), Financial Times, [Accessed 11 July 2016]. 82 Dickel et al., Reducing European dependence on Russian Gas (October 2014), p Oliver, EU courts Azerbaijan and Turkmenistan as links with Russia sour (25 February 2015), Financial Times, [Accessed 11 July 2016]. 84 O. Coblani, Central Asian Gas in Eurasian Power Game (2014) 68 Energy Policy 351.

114 Articles 553 oil and gas rights; pipeline routes) remains a work progress. 85 It may therefore be that the launch of a TCP requires more concerted diplomatic leadership from Europe s political heavyweights notably from Germany and Chancellor Angela Merkel not least given the important potential role that Germany energy companies could play in the TCP. Conclusions: the way forward energy security and the European global strategy In June 2015 the European Council launched the development of the EU Global Strategy on Foreign and Security Policy to replace the 2003 European Security Strategy. The Global Strategy forms an opportunity for European States to ensure security of energy supply and thereby enhance autonomy in foreign and security policy decision-making by mitigating their dependence on foreign powers, especially Russia. 86 Two issues are of particular importance. First, the Global Strategy should focus on strengthening the EU s ability to undertake multilateral engagement with external energy partners. 87 Secondly, as Youngs argues, the EU Global Strategy must also spell out how it will tackle the more problematic linkages between internal and external EU policy dynamics in the realisation of a truly common foreign and security policy. This imperative is especially relevant in the sphere of European energy security, where the failure of European States to develop the internal energy market has very important knock-on effects for the dependence of European States on Russia. International relations theory provides useful insights about the potential of the Energy Union and Global Strategy to support the development of the internal and external dimensions of the single energy market. Energy security sits uncomfortably at the nexus of high and low politics. 88 On the one hand, security of supply remains a vital national interest that has important implications for a State s relative power in the international system. Hence the actions of States in energy security can be understood through more traditional geopolitical analytical frameworks, such as neorealism. 89 Yet, on the other hand, security of cost has been pursued by liberalising energy markets and distancing the State from energy policy formulation and implementation. European energy policy has, therefore, become a poorly steered system of multi-level governance where important competences in security of cost (which also have implications for supply security) have been transferred vertically to the supranational level and horizontally to the private sector, while significant competence also remains at the national level. 90 European States have much to gain from the emergence of governance in energy policy, especially from the vertical diffusion of policy agenda-setting and implementation powers. The growth of EU competence in energy policy provides an important opportunity for stronger leadership to promote collective European action that will help to ensure greater security of supply, reduce energy costs and tackle climate change. However, the ability of European States to maximise the gains from this collective action is 85 See for more detail on the background issues related to the legal status of the Caspian Sea, S. Yinogradov and P. Wouters, The Caspian Sea: Quest for a New Legal Regime (1996) 9 Leiden Journal of International Law S. Biscop, Global and Operational: A New Strategy for EU Foreign and Security Policy, Instituto Affari Internazionale Working Paper 15/27 (July 2015), pp R. Youngs and S. Far, Energy Union and EU Global Strategy (2 December 2015), Carnegie Europe, /carnegieeurope.eu/2015/12/02/energy-union-and-eu-global-strategy/imjs [Accessed 11 July 2016]. 88 Hoffmann distinguishes between high politics, which concerns issues that threaten the existence of the State, and low politics, which concerns issues which affect welfare and affluence. S. Hoffmann, Obstinate or Obsolete: The Fate of the Nation-State and the Case of Western Europe (1995) 95 Daedlus Neorealism argues that the behaviour of States is governed by the presence of an anarchic international system. This predisposes States to be highly sensitive to losses in relative power. See K. Waltz, Theory of International Politics (Reading, MA: Addison Wesley, 1979). 90 On multi-level governance, see G. Marks et al., European Integration from the 1980s: State-centric vs Multi-level Governance (1996) 34 J.C.M.S. 341.

115 554 European Law Review undermined by the diverse economic and political interests which foster resistance to key initiatives in the Energy Union, despite their clear long-term benefits. Germany provides an excellent example of the political hurdles that must be overcome if the Global Strategy is to result in measures that will strengthen the Commission s competence in shaping relations with external energy suppliers. Following Russian support for German reunification, Germany developed a high level of dependence on Russian gas imports. This policy was underpinned by a civilian-power 91 led foreign policy framework under the administration of Chancellor Gerhard Schroeder ( ), which emphasised the ability of Germany to achieve political and social change with Russia through economic partnership. Although proponents of change through interdependence within the German core executive have now been sidelined in favour of a more sceptical view of Russian intentions, rapprochement with Russia has established deeply embedded material path dependencies. 92 In particular, the cheap gas prices negotiated with Gazprom combined with the benefits to the German energy industry of retaining its position as a key gas distribution hub have left Germany reticent to face up to the security implications of dependence on Russian gas. Germany s dependence on Russian gas has been compounded by poor planning in Germany s transition to renewable energies. Launched in 2010, the Energiewende plans to achieve 30 per cent of German gross energy consumption from renewables by 2020 and 60 per cent by However, the technical challenges of the Energiewende and the 2011 decision to phase out nuclear power, which constituted 22 per cent of German electricity production in 2011, has left Germany struggling to meet these ambitious targets. Consequently, as the IEA notes in its 2013 report on Germany, it likely to be more dependent on gas imports in the coming years when offsetting fluctuations in solar and wind electricity generation. 94 Hence, rather than diversify supply and promote greater solidarity with CEE States, in June 2015 Germany agreed to develop a second Baltic gas pipeline bypassing Ukraine and Poland. The Nord Stream 2 pipeline will deliver 55Bcm of gas per year to Western Europe and strengthen Germany s position as a gas distribution hub. 95 The negative impact of national economic and political interests in crafting a common European position on the external dimensions of the single energy market are compounded by the slowdown of the integrative process in the context of the rise of euroscepticism in both established and new EU members. 96 This public opposition to EU integration manifested for example in the European Parliament s voting down of the Energy Security Strategy makes it unlikely that the Commission will be able to attain many of new 91 The civilian power model is based upon respect for law, social justice, sustainable development, and non-violent conflict resolution. It involves acceptance of the need for of international co-operation to achieve foreign policy objectives; non-military, mainly economic policy tools; and willingness to use international institutions to address critical policy issues. H. Maull, Germany and Japan: The New Civilian Powers ( ) 69 Foreign Affairs Interview 2, Division of Energy and Raw Material Foreign Policy, Ministry for Economic Affairs and Energy, Berlin (11 September 2014). 93 Federal Ministry of Economics and Technology, Energy concept for an environmentally sound, reliable and affordable supply (28 September 2010), p.5, /BMUBMWi_Energy_Concept_DD.pdf [Accessed 11 July 2016]. 94 Energy policies of IEA countries: Germany 2013 review, p.15, IEA, /executivesummaries/germanyexecsum.pdf [Accessed 8 December 2015]. 95 Duda slams Russia s second Baltic gas pipeline to Germany (9 September 2015), Euractiv, [Accessed 11 July 2016]. 96 M. Leonard, J. Ignacio Torreblanca, H. Kundnani and U. Guerot, The Remarkable Rise of Continental Euroscepticism (24 April 2015), Guardian, -euroscepticism-rise [Accessed 11 July 2016].

116 Articles 555 powers that the Energy Union envisages. 97 It will be especially difficult to gain greater competence in negotiations with external energy suppliers owing to the sensitivities of States and the European public to the delegation of further decision-making powers in such foreign policy areas of high politics. However, the completion of the internal energy market and promotion of renewables falls further into the area of low politics and therefore offers greater possibilities for action by the High Representative and Commission. Faced with these economic and political realities on the ground at the national level, it is unlikely that the EU Global Strategy will be able to deliver detail and coherence in support of the external dimensions of the Energy Union without the presence of significant crisis (such as a further escalation of Russian aggression in Eastern Europe). Yet, the High Representative and Commission have not yet recognised the implications of the rise of euroscepticism. As Youngs highlights, the Global Strategy review paper released in summer 2015 rather breezily suggests that the crisis [in integration] is likely to prompt further integration and thus provide a positive opportunity for foreign policy. 98 If the Energy Union is to lead to more substantial powers for the Commission and High Representative to enforce the internal and external dimensions of the single energy market, two key areas of activity will be necessary. First, the Commission must focus on undertaking more effective public diplomacy that sheds light on the need to complete the single energy market. Input legitimacy forms a very important tool used by political leaders at the national level to justify the pursuit of short-term economic interests, such as protecting national energy industries from competition or ensuring low energy prices. 99 For the Commission to effectively assert a stronger role in shaping the internal and external dimensions of the single energy market it will need to gain greater support among the EU public by enhancing EU citizens perception of the EU s output legitimacy in energy security. The raw material for compelling public diplomacy on behalf of the Energy Union and EU Global Strategy is present. The implementation of the Energy Union will bring lower prices for consumers and help keep Europe at the forefront of efforts to tackle climate change. It will also enhance the EU s security by ensuring that European States are able to act in a unified manner and apply hard power in the form of crippling sanctions against Russian energy exports. Secondly, engagement with policy-makers across EU Member States will be essential to ensure that the Global Strategy is a document that has buy-in at the national level and that it delivers the strategic guidance and institutional processes necessary to facilitate the implementation of the internal and external dimensions of the single energy market. Attaining consensus among EU Member States for an overarching strategy of engagement with Europe s energy suppliers as part of the EU Global Strategy will be problematic, for the reasons outlined above. Nevertheless, the Global Strategy offers a good opportunity to enhance European commitment to completing the internal dimensions of the single energy market. The emphasis of the Energy Union on tackling climate change, improving energy efficiency, cost and supply security provides an excellent basis for the Commission to build support for its aims across the fields of economic, environmental and security energy policy at the national level. However, greater effort from the High Representative and Commission is required to establish support in these policy areas. Indeed, the High Representative has attempted to instigate broader public engagement and consultation 97 M. Poche, A. Fox and N. Sylikiotis, EU energy security strategy fails to secure parliament s support (12 June 2015), Parliament Magazine, -fails-secure-parliaments-support [Accessed 11 July 2016]. 98 R. Youngs, Will the EU s Global Strategy Meet the Foreign Policy Challenges of the Future? (15 October 2015), European Politics and Policy Comment, -risks-being-too-inward-looking-to-meet-the-foreign-policy-challenges-of-the-future/ [Accessed 11 July 2016]. 99 Scharpf distinguishes between two forms of legitimacy: input legitimacy, which refers to the legitimacy that is conferred by the political representation of citizens in policy formulation, and output legitimacy, which refers to the ability of a political entity to deliver effective public policy. See F. Scharpf, Governing in Europe (Oxford: Oxford University Press, 1999).

117 556 European Law Review on the Global Strategy through high level discussions conducted within the Brussels inner circle. 100 While self-congratulatory discussions are good for morale, they have achieved little to no progress. Instead, the EU needs to reformulate its strategy vis-à-vis energy interdependence between Russia and the EU. It has to acknowledge that despite alternative forms of energy supply, it will continue to rely greatly, although not exclusively, on Russian gas as a matter of medium-term necessity. Likewise, it is imperative that Russia appreciates the EU s aspiration for diversification, market integration, and development of renewable energy as a matter of prosperity. While the mutual energy relations between the EU and Russia are here to stay, the EU s capacity to contribute to external energy policies as a value actor is vital. The EU can indeed limit the harm caused by the current application of Russian strategy based on inter alia cutting of energy supplies and manipulating hub prices by ensuring that rule of law and common market principles are adhered to by Russia. This is because the EU has more leverage to change the mutual (but rather asymmetrical) EU-Russia dependency in the long term. Indeed, Russia appears more dependent on the EU as a consumer than the EU is on Russia as a supplier. The EU could thus strengthen the rule of law on the EU-Russia energy partnership by gradually emboldening Russia s adherence to the European energy trade regime. In parallel, Member States, especially Russia s best European partners, would have to put self-interest behind (such as Russian subsidising gas prices) and make more use of the EU in a spirit of solidarity. Such a move would imply compromising their own sovereignty in voluntary ways and pushing daring regulatory proposals into the EU legislative process. Indeed, reducing regulatory uncertainty and enabling the EU to enforce its common legal instruments both internally and externally are within the EU s purview. Concerted action at EU level will not only enhance energy security in Europe but will further contribute to setting international energy regulatory standards that when properly adhered to by Russia may restore its image as a reliable energy partner in the global market Aspen Institute, HRVP Mogherini stresses that Energy Security is a key concern in EU Global Strategy, https: //europa.eu/globalstrategy/en/hrvp-mogherini-stresses-energy-security-key-concern-eu-global-strategy-0 [Accessed 11 July 2016]. 101 See K. Talus, EU Energy Law and Policy: A Critical Account (Oxford: Oxford University Press, 2013), Ch.8.

118 Analysis and Reflections Kirchberg Dispensing the Punishment: Inflicting Civil Death on Prisoners in Onuekwere (C-378/12) and MG (C-400/12) Uladzislau Belavusau * University of Amsterdam Dimitry Kochenov ** University of Groningen Citizenship; Deportation; EU law; Foreign criminals; Imprisonment; Prisoners rights Abstract This article critiques the controversial approach taken by the Court of Justice towards the periods of imprisonment in the 2014 judgments of Onuekwere and MG. The Court approved the exclusion of such periods for the purposes of (1) acquiring permanent residence and (2) benefiting from the enhanced protection against deportation. Effectively, the Court has revitalised the archaic doctrine of civil death in the EU. This development is not only in profound contradiction to the essential features of European constitutionalism and contemporary approaches to the rights of inmates in European democracies. It is also markedly ineffective in combating crime, de facto favouring ritual banishments over measures to reduce reoffending. The authors uncover lacunae in the Court s reasoning incompatible with the emancipating paradigm of EU citizenship non-discrimination as well as any desirable humane outlook on penitentiary systems and the aims of criminal justice. They unpack these judgments in light of the history of punishment, citizenship theory and the emerging European prisoners rights standards, including the latest developments before the European Court of Human Rights, paying particular attention to the recent UK developments in this area. They conclude that bar some extraordinary exceptions, imprisonment periods should undoubtedly count as proper residence by EU citizens in the Member States other than their own. The nationalist reasons behind the recent shift in case law hardly qualify as sound considerations to limit the reach of EU law, instead undermining the legislator through a contra legem ultra vires reading * Assistant Professor of EU Law. This article was finalized during Dr. Belavusau s residence in Rome as a Visiting Professor at the LUISS Guido Carli University. ** Chair in EU Constitutional Law. This article was written during Professor Kochenov s residence in Princeton as Martin and Kathleen Crane Fellow in Law and Public Affairs at the Woodrow Wilson School. The authors are grateful to Niamh Nic Shuibhne, Vincent Geeraets and the anonymous reviewers for valuable comments on the draft version. 557

119 558 European Law Review of the relevant Directive. They do not make European cities safer, they do not improve the lives of EU citizens and they undermine the achievement of the goals of EU integration. La souffrance physique, la douleur du corps lui-même ne sont plus les éléments constituants de la peine. Le châtiment est passé d un art des sensations insupportables à une économie des droits suspendus Michel Foucault 1 Introduction Despite the general trend towards the liberalisation of prisoners rights in Europe, 2 the Court of Justice (ECJ) delivered two judgments in 2014 which substantially limit the position of inmates from the standpoint of EU law, while failing at the same time to solve any of the problems that criminality causes in our societies, amounting to the application of some regressively orthodox ideologies and giving voice to outdated, deeply problematic assumptions, which we would expect the EU to stand against. 3 Turning EU citizens into foreigners is no longer taboo. 4 This adds yet another strand to the recent flood of case law radically undermining the status of EU citizenship, dismantling the protections it used to offer and attacking the very essence of the status. 5 The values protected in the process are, beyond murky ideological proclamations, regrettably quite uncertain, contributing to perception of the moral void behind EU citizenship as it has developed. 6 As a result, not only the values held dear by Europeans, but also their safety seems to have been placed in jeopardy. 7 The case law contributes to the mythical integration - and values -centred line of citizenship thinking, replacing reality with murky and questionably malleable ideals which, besides befogging the reasoning of the courts, are also capable of undermining human lives. 1 M. Foucault, Surveiller et punir (Paris: Gallimard, 1975), p16. 2 For the literature, see L. Lazarus, Contrasting Prisoners Rights: A Comparative Examination of England and Germany (Oxford: Oxford University Press, 2004); S. Easton, Prisoners Rights: Principles and Practice (London: Routledge, 2011). Perhaps the voluminous law of the European Court of Human Rights about prisoners rights is the best testimony to this liberalisation. Central cases include: Kalashnikov v Russia (2003) 36 E.H.R.R. 34 (hygienic conditions of cells); Shchokin v Ukraine [2011] S.T.C. 401 (ill-treatment by cell-mates); Tali v Estonia (66393/10) 13 February 2014 (ill-treatment by prison officers); Varga v Hungary (2015) 61 E.H.R.R. 30 (prison overcrowding); Frérot v France (70204/01) 12 June 2007 (strip searches of prisoners); Moisejevs v Latvia (64846/01) 15 June 2006 (insufficient diet provided to a prisoner); Mouisel v France (2004) 38 E.H.R.R. 34 (medical assistance to prisoners with a physical illness); Aleksanyan v Russia (2011) 52 E.H.R.R. 18 (HIV-positive detainees); Florea v Romania (37186/03) 14 September 2010 (passive smoking in detention); Al Nashiri v Poland (2015) 60 E.H.R.R. 16 (secret detention sites); Hirst (No.2) v United Kingdom (2006) 42 E.H.R.R. 41 (prisoners rights to vote). 3 Not everyone is idealistic, of course. On the limitations of the EU s ideology and its troublesome relationship with justice, see D. Kochenov, G. de Búrca and A. Williams (eds), Europe s Justice Deficit? (Oxford: Hart Publishing, 2015); M. Bartl, The Way We Do Europe: Subsidiarity and the Substantive Democratic Deficit (2015) 21 E.L.J D. Kostakopoulou, When EU Citizens Become Foreigners (2014) 20 E.L.J See also, M. Meduna, Scelestus europeus sum : What Protection against Expulsion EU Citizenship Offers to European Offenders? in D. Kochenov (ed.), European Citizenship and Federalism: The Role of Rights (Cambridge: Cambridge University Press, 2016, forthcoming); D. Thym, When Union Citizens Turn into Illegal Migrants: the Dano Case (2014) 40 E.L. Rev E. Spaventa, Earned Citizenship Understanding Union Citizenship through its Scope in EU Citizenship and Federalism (2016, forthcoming); N. Nic Shuibhne, Limits Rising, Duties Ascending: The Changing Legal Shape of Union Citizenship (2015) 52 C.M.L. Rev E.g. D. Kochenov Introduction in EU Citizenship and Federalism (2016, forthcoming) (and the literature cited therein). 7 L. Mancano, Criminal Conduct and Lack of Integration into the Society under EU Citizenship: This Marriage is Not to be Performed (2015) 7 New Journal of European Criminal Law 53; D. Kochenov and B. Pirker, Deporting EU Citizens within the European Union (2013) 19 Col. J. Eur. L. 369; J. Carens, Citizenship and Civil Society: What Rights for Residents? in R. Hansen and P. Weil (eds), Dual Nationality, Social Rights and Federal Citizenship in the U.S. and Europe (New York, NY: Randall Books, 2002) p.100 at p.105.

120 Analysis and Reflections 559 The starting premise of the Court here seems to be, as we will show, a thick and value-centred citizenship in a unified society which is a community of values. Such societies have never been. It is no surprise, thus, that there is no place for prison populations in such imagined communities. In other words, rational arguments and an attentive approach to reality are replaced by what Peter Spiro characterised as cheap talk. 8 While A.G. Yves Bot emerges as the champion of this genre at the ECJ at least since Tsakouridis, 9 cheap talk harms the heart of EU citizenship and free movement law and undermines human lives with a full sanction of other members of the Court. In the Onuekwere judgment (C-378/12) the Court concluded that periods of imprisonment do not count towards the time required for the acquisition of permanent residence. 10 Likewise, in MG (C-400/12), the Court confirmed that exclusion of such periods from the 10-year period of residence required to qualify for enhanced protection against deportation is compatible with EU law, simply ignoring the already acquired permanent residence in a questionable twist of the legal mind, suggesting the backward counting of the residence times required by the Directive. 11 This contribution adding to a growing critical literature on EU citizenship law and crime 12 revisits such a restrictive position on the time of imprisonment and unpacks the unusually numerous fallacies in the Court s reasoning. The case law critiqued here is, with all respect, not far short of irresponsible, as well as standing out as highly atypical in the world of constitutional democracies today, particularly in the European context. It deprives precisely those who need the protection of the law of such protection, without at the same time solving any of the outstanding problems. The substantive arguments with regard to the rates of reoffending, on the one hand, and the fact that EU territory is mostly border-free, 13 turning deportations into acts of public shaming instead of policy tools, on the other, are not seriously considered by the Court. The result is an excessively restrictive reading of the legislation with full knowledge that 8 P. Spiro, Expatriating Terrorists (2014) 82 Fordham L. Rev. 2169, 2171: The sanctified view of citizenship is more nostalgic and reflexive than substantial in other words, cheap talk. 9 A.G. Bot s Opinion in Land of Baden-Württemberg v Tsakouridis (C145/09) EU:C:2010:322; [2011] 2 C.M.L.R. 11. In this case, the Court judged on the situation of Mr Tsakouridis, a Greek national born in Germany and having spent most of his life there. Tsakouridis was the subject of an expulsion to Greece after he was sentenced to imprisonment for more than five years for trafficking in narcotics as part of an organised group. The Court, influenced by its Advocate General, decided that such a criminal activity can constitute imperative grounds of public security capable of justifying the expulsion of a Union citizen who has resided for more than 10 years in another Member State. 10 Onuekwere v Secretary of State for the Home Department (C-378/12) EU:C:2014:13; [2014] 1 W.L.R Secretary of State for the Home Department v MG (C-400/12) EU:C:2014:9; [2014] 2 C.M.L.R Meduna, Scelestus europeus sum in EU Citizenship and Federalism (2016, forthcoming); Mancano, Criminal Conduct and Lack of Integration into the Society under EU Citizenship (2015) 7 New Journal of European Criminal Law 53; H. van Eijken and T. Marguery, The Federal Imbedding of Citizens in the European Union Member States Criminal Law: Or How EU Citizenship Is Shaping Criminal Law in European Citizenship and Federalism (2016, forthcoming); S. Coutts, Citizenship of the European Union in D. Acosta Arcarazo and C. Murphy (eds), EU Security and Justice Law After Lisbon and Stockholm (Oxford: Hart Publishing, 2014); T. Marguery, European Union Fundamental Rights and Member States Action in EU Criminal Law (2013) 2 M.J. 282; A. van der Mei and E. Muir, The EU Citizenship Dimension of the Area of Freedom, Security and Justice in M. Luchtman (ed.), Choice of Forum in Cooperation against Financial Crime (The Hague: Eleven International Publishing, 2013); L. Azoulai and S. Coutts, Restricting Union Citizens Residence Rights on Ground of Public Security. Where Union Citizenship and the AFSJ Meet: P.I. (2013) 50 C.M.L. Rev. 553; E. Herlin-Karnell, Is the Citizen Driving the EU s Criminal Law Agenda? in M. Dougan, N. Nic Shuibhne and E. Spaventa (eds.) Empowerment and Disempowerment of the European Citizen (Oxford: Hart Publishing, 2012); V. Mitsilegas, The Limits of Mutual Trust in Europe s Area of Freedom, Security and Justice: From Automatic Inter-State Cooperation to the Slow Emergence of the Individual (2012) 31 Y.E.L. 319; T. Marguery, La citoyenneté européenne joue-t-elle un rôle dans l espace pénal de liberté, de sécurité et de justice? (2010) 3/4 Cahiers de droit européen On EU territory and grades of good and bad citizens see, L Azoulai, Transfiguring European Citizenship: From Member State Territory to Union Territory in European Citizenship and Federalism (2016, forthcoming).

121 560 European Law Review absolutely no positive result is achieved by this restrictive outlook: both the idea of the institutional balance 14 and of EU citizenship suffer as a result, while the concept of permanent residence under Directive 2004/38 is simply knocked down as legally irrelevant in the contexts when it is needed the most. 15 The cases join a rich body of harmful, dull and unconvincing jurisprudence in the field boasting no clear positive effects. 16 As a result, our cities are not safer, offenders are not better rehabilitated, and the law, as an institution of effective, just and efficient problem-solving is turned into a vengeful playground for local nationalism in a Union without borders. It either stands discredited or dances to the tune of prejudice, thus potentially undermining most seriously the credibility and authority of the Court. 17 The first part introduces the facts and presents a summary of the Court s reasoning in both cases. The second part exposes the Court s position towards the wider paradigm of developments in European and comparative law, in particular by placing it in the UK context and highlighting the background of prisoners cases before the European Court of Human Rights. This part also reveals that although not referring to it the Court has effectively revitalised the notorious doctrine of civil death in the EU setting. The third part revisits the Court s approach in light of its ongoing trend towards restricting the EU citizenship paradigm 18 through the outright abuse of the criminal law and with moralising rhetoric within the integration requirement. This part also deconstructs the evolving meaning of incarceration in the history of Western civilisation, aiming to expose the outdated view the Court implicitly projects on prisons, the purpose of punishment and redistributive justice, as well as of course the dead-end to the Court s chosen path towards making our streets safer. Finally, the conclusions summarise the cost of this prisoner s dilemma for transnational EU citizenship and suggest for the Court the alternative proportionality test, which would fully conform to an emancipatory view of prisons as fully fledged territories of the European Union. Facts and judgments Onuekwere v Secretary of State for the Home Department (C-378/12) Mr Onuekwere is a Nigerian national married to an Irish woman residing in the UK. They have two children. In 2000 he obtained a residence permit as a family member of a Union citizen valid for five years in the UK. Before obtaining that permit, he had already been sentenced to a term of imprisonment of nine months in the same year, which was suspended for two years. The conviction did not thus give rise to actual imprisonment. In 2004 Mr Onuekwere was convicted again for an offence committed in Although the prison sentence handed down was for two years and six months, he was released on 16 November However, two days later the Secretary of State ordered the expulsion of Mr Onuekwere 14 E.g. J.-P. Jacqué, The Principle of Institutional Balance (2004) 41 C.M.L. Rev See also M. Chamon, The Institutional Balance, an Ill-Fated Principle of EU Law? (2015) 21 E.P.L On the recent bent towards a most restrictive approach to the supranational citizenship status and rights a wider tableau of which the case law critiqued here is part see N. Nic Shuibhne, Limits Rising, Duties Ascending: The Changing Legal Shape of Union Citizenship (2015) 52 C.M.L. Rev For a somewhat more optimistic picture, see Kochenov, Introduction in EU Citizenship and Federalism (2016, forthcoming); D. Sarmiento and E. Sharpston, European Citizenship and Its New Union: Time to Move On? in EU Citizenship and Federalism (2016, forthcoming). 16 The most emblematic cases in this group are PI v Oberbürgermeisterin der Stadt Remscheid (C-348/09) EU:C:2012:300; [2012] 3 C.M.L.R. 13, and Tsakouridis (C-145/09) EU:C:2010: M. Kumm, The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review (2010) 4 Law and Ethics of Human Rights 142. Indeed, being convincing is the only weapon the Court has. 18 See, in order of gradual reduction of optimism: D. Kochenov, The Citizenship Paradigm [2014] C.Y.E.L.S 197; Spaventa, Earned Citizenship in EU Citizenship and Federalism (2016, forthcoming); N. Nic Schuibhne, Recasting EU Citizenship as Federal Citizenship: What Are the Implications for the Citizen when the Polity Bargain Is Privileged? in EU Citizenship and Federalism (2016, forthcoming).

122 Analysis and Reflections 561 from the UK. That decision was annulled on the ground that Mr Onuekwere was the spouse of a Union citizen exercising rights conferred by EU law. On 8 May 2008, he was sentenced to two years and three months imprisonment for another offence. 19 Mr Onuekwere was released on 6 February 2009, but the Secretary of State again ordered his expulsion from the UK. However, on 29 June 2010, the Upper Tribunal (Immigration and Asylum Chamber), London, annulled the Secretary of State s decision ordering expulsion. While stating that the right of permanent residence had been acquired only by Mr Onuekwere s wife, that tribunal held that the factors particular to Mr Onuekwere s circumstances prevailed over the public interest in his expulsion on grounds of public policy. Mr Onuekwere subsequently submitted a request for a permanent residence card. Technically, he was entitled to this request under EU law, as he had spent five years in the UK as a spouse of an EU national. The Secretary of State dismissed this request by decision of 24 September While the First-tier Tribunal (Immigration and Asylum Chamber) held that Mr Onuekwere had a right of residence, that tribunal nevertheless confirmed that he had no right of permanent residence. The national tribunal, therefore, asked the Court of Justice in what circumstances, if any, would a period of imprisonment constitute legal residence for the purposes of the acquisition of a permanent right of residence under art.16 of Directive 2004/38. In its preliminary ruling, the Court of Justice stipulated outright that it is clear from the wording and the purpose of art.16(3) Directive 2004/38 that periods of imprisonment cannot be taken into consideration for the purposes of the acquisition of a right of permanent residence. 20 It did not engage in any substantial form of proportionality analysis. Instead, according to the Court, two aspects are crucial to interpreting that provision in the Directive. First, the relevant family members must have resided legally and continuously with that citizen for the period in question. The Court adopts the most formalistic interpretation of the text, stating that the preposition with reinforces the condition that those family members must accompany or join that citizen. 21 Secondly, the Court recalls that, as Recital 17 in the Preamble to Directive 2004/38 states, the right of permanent residence is a key element to promoting social cohesion and was provided for by that Directive in order to strengthen the feeling of Union citizenship. 22 The EU legislature accordingly made the acquisition of the right of permanent residence pursuant to art.16(1) Directive 2004/38 subject to the integration of the citizen of the Union in the host Member State. 23 However, says the Court, such integration is based not only on territorial and temporal factors but also on qualitative elements, related to the level of integration in the host Member State. 24 The Court therefore considers that undermining the link of integration justifies the loss of the right of permanent residence even outwith the circumstances specified in art.16(4) Directive 2004/ The Court further concludes that the imposition of a prison sentence by the national court demonstrates the non-compliance by the person concerned with the values expressed by the society of the host Member State in its criminal law. 26 As a result, considering periods in prison for the purposes of the acquisition of 19 The judgment itself does not specify the offences committed by Onuekwere in the period from 2000 to A.G. Bot s Opinion, in contrast, specifies that Mr Onuekwere was first convicted in 2000 for sexual intercourse in a hospital with a patient suffering from mental illness: A.G. Bot s Opinion in Onuekwere (C-378/12) EU:C:2013:640 at [14]. Then, in 2003 he was arrested for assisting an illegal migrant to enter the UK in his car (at [15]). Finally, in 2007 he was arrested for possession of false documents (at [17]). 20 Onuekwere (C-378/12) EU:C:2014:13 at [22]. 21 Onuekwere (C-378/12) at [23]. 22 Onuekwere (C-378/12) at [24]. 23 Onuekwere (C-378/12) at [24]. 24 Onuekwere (C-378/12) at [25]. 25 Onuekwere (C-378/12) at [25]. The relevant provision in the Directive itself does not mention imprisonment as evidence for breaking the integration link with the host country. Therefore, it remains entirely an interpretative invention of the Court. 26 Onuekwere (C-378/12) at [26].

123 562 European Law Review permanent residence by family members of Union citizens who are not nationals of the Member State would be contrary to the aim pursued by that Directive in establishing that right of residence. 27 Secretary of State for the Home Department v MG (C-400/12) Mrs G and her husband, both Portuguese nationals, entered the UK in They have three children, born between 1999 and Her husband supported Mrs G financially until the couple s separation in Despite that separation, Mrs G and her husband were still married. In 2008 Mrs G s children were placed in foster care following a report by hospital staff that injuries to one of the children were non-accidental. A family court judge subsequently determined that Mrs G had been responsible for those injuries. In 2009, having been convicted on one count of cruelty and three counts of assault by beating a person under the age of 16, Mrs G was sentenced to 21 months imprisonment. During that period, her husband was awarded custody of the children. In 2010, while still in prison, Mrs G applied to the Secretary of State for a certificate of permanent residence in the UK. However, the Secretary of State refused the application and ordered that Mrs G be deported on grounds of public policy and public security pursuant to reg.21 of the Immigration Regulations. On 11 July 2010, 12 years after entering the UK, Mrs G remained in custody despite having served her sentence, owing to the Secretary of State s decision ordering her deportation. In that decision the Secretary of State took the view that, first, the enhanced protection against expulsion provided for in art.28(3)(a) Directive 2004/38 is dependent on the integration of the Union citizen into the host Member State. Such integration cannot take place while that person is in prison. Secondly, the Secretary of State found that Mrs G was not entitled to the intermediate level of protection against expulsion because she had not shown that she had acquired a right of permanent residence and, in any event, there were serious grounds of public policy and public security for expelling her. Thirdly, the Secretary of State found that, a fortiori, Mrs G was entitled to the basic level of protection against expulsion. The First-tier Tribunal also found that, in the absence of evidence to show that her husband had been employed or that he had otherwise exercised rights conferred by the FEU Treaty, Mrs G had not proved that she had acquired a right of permanent residence for the purposes of Directive 2004/38. The Secretary of State brought an appeal before the Upper Tribunal (Immigration and Asylum Chamber) against the decision of the First-tier Tribunal. The Upper Tribunal referred the case for a preliminary ruling to the Court of Justice, asking it to clarify several points which can be summarised as whether exclusion of periods spent in prison from counting towards qualification for enhanced protection against deportation is compatible with EU law, as well as when that 10-year period of residence should be counted from. The Court found that, while Recitals 23 and 24 in the Preamble to Directive 2004/38 certainly refer to special protection for persons who are genuinely integrated into the host Member State, especially if they were born and had spent all their lives there, the fact remains that the decisive criterion is whether the Union citizen lived in that Member State for the 10 years preceding the expulsion decision. 28 It follows that, unlike the requisite period for acquiring a right of permanent residence, which begins when the person concerned commences lawful residence in the host Member State, the 10-year period of residence necessary for the grant of enhanced protection provided in the Directive must be calculated by counting back from the date of the decision ordering that person s expulsion. 29 In order to determine the decisive criterion for granting enhanced protection, the Court says that all relevant factors must be taken into account in each individual case, in particular (1) the duration of each period of absence from the host Member State; (2) 27 Onuekwere (C-378/12) at [26]. 28 MG (C-400/12) EU:C:2014:9 at [23]. Here and further the Court substantially relies on its reasoning in the previous case of Tsakouridis (C-145/09) [2010] EU:C:2010: MG (C-400/12) EU:C:2014:9 at [24].

124 Analysis and Reflections 563 the cumulative duration and the frequency of those absences; and (3) the reasons why the person concerned left the host Member State, which can establish whether those absences involve the transfer of the interests of the person concerned to another Member State, family or occupation. 30 The Court concludes, therefore, that the 10-year period of residence referred to in the Directive must, in principle, be continuous and must be calculated by counting back from the date of the decision ordering the expulsion of the person concerned. 31 The Court further links the protection against expulsion measures with the degree of integration of the person in the host Member State. Accordingly, the greater the degree of integration, the greater the scope of protection against expulsion should be. 32 At this point, the Court makes a statement almost identical to the one referred above in Onuekwere. The fact that a national court has imposed a custodial sentence is an indication that the person has not respected the values of the society of the host Member State, as reflected in its criminal law. 33 As a consequence, the taking into consideration of periods of imprisonment for the purposes of the acquisition of a right of permanent residence by members of the family of a Union citizen would clearly be contrary to the aim pursued by that Directive in establishing that right of residence. 34 As for the question of the extent to which the non-continuous nature of the period of residence during the 10 years preceding the decision to expel the person concerned prevents him from enjoying enhanced protection, an overall assessment must be made of that person s situation on each occasion at the precise time when the question of expulsion arises. 35 Accordingly, a period of imprisonment is in principle capable both of interrupting the continuity of the period of residence and of affecting the decision regarding the grant of the enhanced protection, even where the person concerned had resided in the host Member State for the ten years prior to imprisonment. Nonetheless, the Court leaves a small disclaimer, stipulating that the fact that a person resided in the host Member State for the 10 years prior to imprisonment may be taken into consideration as part of the overall assessment required in order to determine whether the integrating links previously forged with the host Member State have been broken. 36 Judgments in light of the wider UK and European developments Prisoners rights in UK and ECtHR law Recent BBC statistics demonstrate that England and Wales have the highest per capita prison population in Western Europe, 143 people per 100, Debate on prisoners in the UK traditionally occupies a prominent position in the bestiary of populist rhetoric. 38 It is no surprise, therefore, that in recent years the 30 MG (C-400/12) EU:C:2014:9 at [25]. 31 MG (C-400/12) at [28]. 32 MG (C-400/12) at [30]. 33 MG (C-400/12) at [31]. 34 MG (C-400/12) at [31]. In this paragraph the Court even cross-references Onuekwere (C-387/12) [2014] EU:C:2014:13 at [26]. 35 MG (C-400/12) at [35]. 36 MG (C-400/12) at [38]. 37 Scotland, where 135 out of every 100,000 people are in jail, is also above average. There are more than 86,000 prisoners in about 160 jails in the UK. The vast majority of them are in England and Wales, where more than 77,000 prisoners are currently held. While prisons vary, the majority of the 130,000 people entering the system each year have sentences of merely weeks or months. See World Prison Populations, BBC News, /shared/spl/hi/uk/06/prisons/html/nn1page1.stm, and UK Ministry of Justice prison population figures, [Both accessed 8 July 2016]. 38 D. McNulty, M. Watson and G. Philo, Human Rights and Prisoners Rights: The British Press and the Shaping of Public Debate (2014) 53 Howard Journal of Criminal Justice 360.

125 564 European Law Review European Court of Human Rights (ECtHR) has had to adjudicate on landmark and hotly discussed cases about prisoner s rights originating specifically from the UK. 39 The current state of the art is that prisoners serving a custodial sentence are deprived of voting rights under UK law. In contrast, prisoners on remand are able to vote under the provisions of the Representation of the People Act In the 2005 landmark case of Hirst v United Kingdom, the ECtHR found that UK s ban on all serving prisoners from voting is contrary to art.3 of Protocol 1 of the European Convention on Human Rights (ECHR). 40 Despite all the parliamentary and governmental consultations which ensued since, the prohibition has not been lifted. On the contrary, the debates in the House of Commons reveal a great opposition towards liberalisation of prisoner s rights in Britain, including threats of the UK leaving the Council of Europe. 41 In 2010 case of Greens & MT v UK, the ECtHR observed a structural problem with restrictions on prisoners rights in the UK, which had still not amended its legislation five years after Hirst. 42 The Court had received an impressive 2,500 similar applications. In the two recent judgments from August 2014 Firth v UK) and February 2015 (McHugh v UK) relating to the multitude of outstanding claims by prisoners, the ECtHR noted the continuing violation of the Protocol, but did not award the applicants any compensation or legal expenses. 43 In December 2014 the UK Government announced that prisoners would not be enfranchised prior to the General Election of It is also claimed that the current ban not only contradicts the law of the Council of Europe, but EU law too, given that the ban also applies to European Parliament elections. 45 Key case law of the ECtHR of relevance to this matter, 46 confirmed by the ECJ, 47 testifies to the overwhelming credibility of this important point. This remains the case notwithstanding the ECJ s surprising failure to state this unequivocally in Delvigne, which confirmed the possibility of the Union to intervene, however. 48 Even if indirectly, the EU before it actually accedes to the Convention 49 is bound by its key principles, 50 including the one reflected in art.3 of the First Protocol. The Member States, separately from the EU, are also bound by the same principle, including in the EP election context. 51 The specific point of prisoner enfranchisement has recently been a matter of adjudication for the Court of Justice and the Court, in a potential departure from the ECtHR, did not find a problem of principle precisely in a case involving nothing else but a civil death Hirst (No.2) v UK (2006) 42 E.H.R.R. 41 (Grand Chamber); Greens & MT v UK (60041/088 & 60054/08) 23 November 2010; Dunn v UK (566/10) 13 May 2014; Firth v UK (47784/09) 16 August 2014; McHugh v UK (51987/08) 10 February Hirst (No.2) v UK (2006) 42 E.H.R.R. 41 (Grand Chamber). 41 N. Maidment and S. Young, UK s Cameron Threatens to Ignore Europe Court of Human Rights Rulings (3 October 2014), Reuters, -iduskcn0hs0gs [Accessed 8 July 2016]. 42 Greens & MT v UK (60041/088 and 60054/08) 23 November Firth v UK (47784/09) 16 August 2014; McHugh v UK (51987/08) 10 February A. Horne and I. White, Prisoners Voting Rights (Library of the House of Commons, Parliament and Constitution Sector, SN/PC/01774, 11 February 2015). 45 Horne and White, Prisoners Voting Rights (2015). 46 Matthews v UK (24833/94) 18 February Spain v UK (C-145/04) [2006] E.C.R. I-7917; [2007] 1 C.M.L.R Delvigne v Commune de Lesparre-Medoc (C-650/13) EU:C:2015:648; [2016] 2 C.M.L.R. 1 at [58]. For a very positive analysis of this judgment, see e.g. K. Lenaerts and J. Gutiérrez-Fons, Epilogue on EU Citizenship in EU Citizenship and Federalism (2016, forthcoming). 49 Article 6(2) TEU. Compliance with this provision has been made overwhelmingly difficult by the Court on at least two occasions: Opinion 2/94 [1996] E.C.R. I-1788; [1996] 2 C.M.L.R. 265; Opinion 2/13 EU:C:2014:2454; [2015] 2 C.M.L.R. 21. For key constitutional implications, see D. Kochenov, EU Law without the Rule of Law: is the Veneration of Autonomy Worth it? (2015) 34 Y.E.L Article 6(1) TEU. 51 Matthews v UK (24833/94) 18 February Delvigne (C-650/13) [2015] ECLI:EU:C:2015:648. On the doctrine of civil death see section Haunted by old ghosts the doctrine of civil death in EU law? below.

126 Analysis and Reflections 565 Likewise, the UK Supreme Court had to assess this aspect at least once in October 2013, in the context of the appeal brought by George McGeoch and Peter Chester. 53 In its judgment, the Supreme Court dismissed both appeals. It ruled that with regard to EU law, this does not provide an individual right to vote paralleling that recognised by the ECtHR in its case law. 54 Although this position might be legalistically correct in the context of art.22 TFEU taken alone, 55 it is in obvious contradiction with the Charter of Fundamental Rights 56 and the values of art.2 TEU, 57 which the Union is bound to respect and promote, 58 to say nothing of the unwritten principles of EU law inspired by the ECHR, 59 as well as the Matthews case, which the UK lost over a virtually identical issue: failure to conduct proper European Parliament elections by banning a group of its population from voting on an unclear pretext (the small size of Gibraltar in that case). 60 The positive legacy of Delvigne, mentioned above, is precisely in the fact that the Charter can now definitely apply to such cases. 61 The UK has traditionally shown a considerable degree of scepticism with regard to the possible spread of EU criminal law, police and security measures. 62 This stream had previously been embraced under the heading of the third pillar, technically abolished after the Lisbon Treaty. Yet the UK has negotiated opt-outs with regard to the EU regime replacing the third pillar. 63 The UK completed the process of opting out of EU criminal law measures adopted before the entry into force of the Treaty of Lisbon, and opting back into some of them. 64 Hence, at both the Council of Europe and EU level, the UK has been a model of particularly acute indecision what our American friends would brand a complete lack of leadership on the Europeanisation of criminal matters. The outburst of Strasbourg cases on prisoners rights from the UK is, therefore, crucial for grasping the full picture of the 2014 prisoner s dilemma in Kirchberg. The Strasbourg Court did not shy away 53 Horne and White, Prisoners Voting Rights (2015). 54 R. (on the application of Chester) v Secretary of State for Justice [2013] UKSC 63; [2014] A.C. 271, on appeal from [2010] EWCA Civ 1439 and [2011] I.C.S.I.H J. Shaw, The Transformation of Citizenship in the European Union: Electoral Rights and the Restructuring of Political Space (Cambridge: Cambridge University Press, 2007), p F. Fabbrini, The Political Side of EU Citizenship in the Context of EU Federalism in EU Citizenship and Federalism (2016, forthcoming). 57 For an array of the normative reasons to take the values seriously, see e.g. C. Closa, D. Kochenov and J. Weiler, Reinforcing the Rule of Law Oversight in the European Union, RSCAS Working Paper (EUI Florence, 2014), p.25; J. Habermas, Democracy in Europe: Why the Development of the EU into a Democracy is Necessary and How it is Possible (2015) 21 E.L.J C. Hillion, Overseeing the Rule of Law in the EU: Legal Mandate and Means in C. Closa and D. Kochenov (eds), Reinforcing the Rule of Law Oversight in the European Union (Cambridge: Cambridge University Press, 2016). 59 D. Kochenov, Free Movement and Participation in the Parliamentary Elections in the Member State of Nationality: An Ignored Link? (2009) 16 M.J. 197; See also Eman v College van burgemeester en wethouders van Den Haag (C-300/04) [2006] E.C.R. I-8055; [2007] 1 C.M.L.R For the difficult political context of the Gibraltar s legal situation, see e.g. A. Khachaturyan, Applying the Principle of Good Neighbourliness in EU Law: The Case of Gibraltar, in D. Kochenov and E. Basheska (eds.), Good Neighbourliness in the European Legal Context (Leiden, Boston: Brill-Nijhoff, 2015), p For a detailed explanation why this is not quite an innovation, see, S. Platon, The Delvigne Judgment and the European Franchise: Going Boldly but Perhaps not Boldly Enough, [Accessed 8 July 2016]. 62 S. Peers, Childhood s End: EU Criminal Law in 2014 (29 December 2014), EU Law Analysis, /eulawanalysis.blogspot.nl/2014/12/childhoods-end-eu-criminal-law-in-2014.html [Accessed 8 July 2016]. 63 For analysis, see A. Hinarejos, J. Spencer and S. Peers, On Opting Out of EU Criminal Law: What is Actually Involved, CELS Working Paper 79 (2012), available at -crim-law.pdf [Accessed 19 July 2016]. 64 For the legal framework of this process and the consequences of opting in, see S. Peers, The UK Opts Back into the European Arrest Warrant (1 December 2014), EU Law Analysis, -uk-opts-back-in-to-european-arrest.html [Accessed 17 July 2016].

127 566 European Law Review from presenting the liberalisation of prisoners rights as fundamental, 65 even despite the aggressive political threats to quit the Convention by a disturbed UK establishment. In the meantime, the ECJ adopted an extremely restrained outlook on the fundamental rights of prisoners. It effectively allowed the UK to further disenfranchise prisoners by excluding them from full protection under the EU citizenship regime. Their rights as EU citizens have de facto evaporated as a result. Both matters, voting and residence, pertain to the scope of citizens rights extensively analysed in the theories of membership and political boundaries. 66 In this respect, citizenship embraces a status of equal membership in a polity, as a bundle of rights and duties attached to this status and a set of civic values that sustain political freedom. 67 Even though neither MG nor Onuekwere are UK citizens, they substantially fall under the British citizenship regime by virtue of their residence and by being in custody on the UK territory. As aliens admitted to residence, as denizens, they exercise certain citizenship rights in that country. Besides, MG is a Portuguese national and therefore an EU citizen. Crucially, their status as denizens is not different from full British citizens committing comparable crimes and having their liberty restricted in the same prisons. By excluding the time of imprisonment from the qualifying period of residence spent in the UK by third-country nationals, the UK thus also degrades the normal citizenship regime for prisoners who happen to hold British passports, converting them into under-citizens, unable to offer due lessons of integration for denizens. In both cases the prisoner-residents of the UK are clearly covered by the EU citizenship regime. As spouses of EU citizens (holding Irish and Portuguese nationalities, respectively), they fall under 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. 68 Since the judgments in Onuekwere and MG cast such strong doubts on the value of the time spent in prisons for integration into society, they further muddy the waters for the prospects of EU prisoner voting rights in European Parliament elections. Haunted by old ghosts the doctrine of civil death in EU law? In the Anglo-American tradition, the phenomenon of prisoner disenfranchisement has been traditionally understood through the doctrine of civiliter mortuus (or civil death ), with roots lying deep in antiquity. 69 The most radical version of the doctrine assumed that prisoners were dead to society. Their wives had to remarry. 70 Their children were treated as orphans. In ancient Athens criminals received the status of ατιμία 65 In McLean & Cole v UK (12626/13 and 2522/12) 11 June 2013 the ECtHR stipulates as follows: [P]risoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention [guaranteeing the right to liberty and security] Any restrictions on the other rights must be justified. 66 For a summary of various concepts, see L. Beckman, Citizenship and Voting Rights: Should Resident Aliens Vote? (2006) 10 Citizenship Studies M. Gibney, The Rights of Non-Citizens to Membership in C. Sawyer and B. Blitz (eds.), Statelessness in the European Union: Displaced, Undocumented, Unwanted (Cambridge: Cambridge University Press, 2011), p 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 amending Regulation 1612/68 [2004] OJ L An extreme remnant of the same tradition today is the revocation of citizenship outright: S. Lavi, Citizenship Revocation as Punishment: On the Modern Duties of Citizens and Their Criminal Breach (2011) 61 U. Toronto L.J. 783; S. Lavi, Punishment and the Revocation of Citizenship in the United Kingdom, United States, and Israel (2010) 13 New Criminal Law Review 404. The UK is currently the leader in the Western world on the count of the application of this approach: M. Gibney, A Very Transcendental Power : Denaturalisation and the Liberalisation of Citizenship in the United Kingdom (2013) 61 Political Studies 637; Spiro, Expatriating Terrorists (2014) 82 Fordham L. Rev In this regard, it is particularly striking that the Court adopted a formalistic reading of the preposition with in the passage about third-country nationals residing with Union citizens in the Citizenship Directive (Onuekwere (C-378/12) EU:C:2014:13 at [23]). Clearly, while in prison Mr Onukwere did not literally live with this spouse. Yet

128 Analysis and Reflections 567 (atimia literally comprising both dishonour and disempowerment). The punishment often included limitation and loss of political rights, most importantly the right to vote and make speeches, followed by exile from the city combined with confiscation of property and even refusal of burial. 71 The Roman instantiation of the Athenian atimia was infamia, which applied differently to various types of citizens, because the Roman polity comprehended a spectrum of citizenship based, broadly speaking, upon property and status. Roman infamia struck directly at the civic honour (existimatio) of the high status citizen, who either held or aspired to hold a public position. 72 During the Middle Ages, in particular in the Holy Roman Empire felons received status of frei[er] Vogel (free bird). Those found guilty of specific in particular, sexual crimes or even suspected of them, suffered serious disenfranchisement: even if not prosecuted, they and their families could be completely ostracised and economically boycotted; they could be assaulted or even murdered with impunity, because civil authorities felt no obligation to prosecute assailants. 73 In England, this type of outlawry developed into the concept of attainder or civil death. 74 English colonists brought the tradition of civil death with them to America. In the pre-revolution colonies, a grossly scandalous, or notoriously vicious behaviour could cause even established citizens to lose their freeman status. Only in the 1950s did progressive advocates begin to challenge felon disenfranchisement schemes, trying to change the focus of the American penal system from retribution to rehabilitation and the re-socialisation of offenders. Yet the doctrine although formally renounced continues to play an important role in modern penal systems, in particular in the US, where the academic discussion on the subject is quite lively. 75 Tens of thousands of federal, state and local laws, regulations and ordinances restrict the civil rights, employment and eligibility for public benefits, residence and other aspects of the status of convicted persons. 76 In the state of Florida, in one example, when someone is found guilty of a felony they forfeit the right to vote, serve on a jury and run for elected office. These civil rights are lost regardless of whether the person is sentenced to incarceration, probation or released into the community. 77 In contrast to the US, European democracies have traditionally supplied examples of the vast trend towards liberalisation of prisoners rights, acknowledging their fundamental status in the domain of equal citizenship and attesting to the gradual decline of the civil death mindset. 78 While the absolute majority of EU countries allow voting for inmates, 79 in stark contrast, US prisoners cannot register to vote and no there is an array of other perfectly legitimate explanations why couples may not exactly live with each other continuously and yet maintain a genuine relationship. On the fluidity of relationships that should be gradually accommodated in EU law, see U. Belavusau, EU Sexual Citizenship: Sex Beyond the Internal Market in EU Citizenship and Federalism (2016, forthcoming). On the interpretation of with in the Directive, see S. Coutts, Union Citizenship as Probationary Citizenship: Onuekwere (2015) 52 C.M.L. Rev. 531, D. Allen, The World of Prometheus: The Politics of Punishment in Democratic Athens (Princeton: Princeton University Press, 2002). 72 K. Pettus, Felony Disenfranchisement in Athens: Historical Origins, Institutional Racism, and Modern Consequences (New York: State University of New York Press, 2013), p W. Johansson and W. Percy, Homosexuality in V. Bullough and J. Brundage (eds), Handbook of Medieval Sexuality (New York: Garland Publishing, 2000), J. Schall, The Consistency of Felon Disenfranchisement with Citizenship Theory (2006) 202 Harvard BackLetter L.J. 53, 57. Under attainder, a criminal s real and personal property would be seized and returned to the king. 75 See e.g. G. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction (2012) 60 University of Pennsylvania Law Review 1789; Pettus, Felony Disenfranchisement in Athens (2013); A. Czajka, Inclusive Exclusion: Citizenship and the American Prisoner and Prison (2005) Studies in Political Economy B. Miller and J. Spillane, Civil Death: An Examination of Ex-Felon Disenfranchisement and Reintegration (2012) 14 Punishment & Society Miller and Spillane, Civil Death (2012) 14 Punishment & Society See fn C. Murray, A Perfect Storm: Parliament and Prisoner Disenfranchisement (2013) 66 Parliamentary Affairs 511.

129 568 European Law Review polling station is allowed in any prison. 80 This means that about one million American citizens are barred from active participation in this most democratic activity. 81 Such prohibitions are in place in a number of other parts of world, in particular those split from the former British Empire, including, inter alia, Australia 82 and for a long time Canada 83 ; the former Soviet Union 84 and Asia. 85 They not only construe imprisonment per se as revoking the civil rights of prisoners but also send the message that inmates are beyond the realm of citizenry. The alternative approach, observed in most European democracies as well as, for example, in Israel, holds that prisoners should not only be permitted but also encouraged to vote, which is legitimately viewed as route to stimulating active citizenship, connection with and adaptation to broader society. 86 Furthermore, unlike American prisoners who are deprived of opportunities for relaxation and intimacy, European countries allow conjugal visits and even home vacations. 87 As can be expected, such differences in approach seriously affect the levels of reoffending. The changing perception is that a prisoner is a full albeit temporarily isolated member of society who should retain due liaison with family, friends, culture, technological and political progress. 88 In Israel after a year in prison, every inmate except for security-related prisoners is allowed 72 hours vacation monthly. As such, a prisoner sentenced for 10 years can make 108 home visits of three days each while in prison. 89 In Norway prison cells often do not have bars on the windows, kitchens are fully equipped with sharp objects and 80 R. Cnaan, J. Draine, B. Fragier and J. Sinha, The Limits of Citizenship: Rights of Prisoners and Ex-Prisoners in USA (2008) 7 Journal of Social Policy & Practice 178. In 1974, the US Supreme Court delivered a landmark judgment in Richardson v Ramirez 418 U.S. 24 (1974). By a six-justice majority, it held that convicted felons could be barred from voting without violating the Fourteenth Amendment. Section 2 of the Fourteenth Amendment allows states to deny citizens the right to vote for participation in rebellion, or other crime. 81 Furthermore, in Florida, Kentucky, and Virginia, ex-felons permanently lose their right to vote. Nine other states have such restrictions in place for two or more years. 82 D. Brown and M. Wilkie (eds), Prisoners as Citizens: Human Rights in Australian Prisons (Sydney: Federation Press, 2002); R. Redman, D. Brown and B. Mercury, The Politics and Legality of Prisoner Disenfranchisement in Australian Federal Elections in A. Ewald and B. Rottinghaus (eds), Criminal Disenfranchisement in an International Perspective (Cambridge: Cambridge University Press, 2009), p For a long time, Canada applied the Anglo-American model of disenfranchising prisoners, specifically with regard to their voting rights. However, in 2002 the Supreme Court of Canada delivered a landmark judgment in Sauvé v Chief Electoral Officer (2002) 3 S.C.R Not only did the Court hold that prisoners have a right to vote under s.3 of the Canadian Charter of Rights and Freedoms, it did so in striking opposition to the approach taken, in particular, by the U.S. Supreme Court. Most emblematically for the decline of civil death even in the Commonwealth legal traditions, the Canadian Court stipulated [t]hat not all self-proclaimed democracies adhere to principles of inclusiveness, equality and citizen participation says little about the Canadian vision of democracy embodied in the Charter permits (at [41]). For criticism of the Canadian decision, see C. Manfredi, In Defense of Prisoner Disenfranchisement in Criminal Disenfranchisement in an International Perspective (2009), p The Russian Federation enforces a constitutional prohibition of prisoners enfranchisement, notwithstanding the condemnation of the practice by the ECtHR in Anchugov & Gladkov v Russia (11157/04 and 15162/05) 4 July In particular, on the Chinese approach, see P. Nwankwo, Criminology & Criminal Justice Systems of the World: A Comparative Perspective (Bloomington, IN: Trafford Publishing, 2011), Ch.3, Chinese Criminal Justice, p Cnaan et al., The Limits of Citizenship: Rights of Prisoners and Ex-Prisoners in USA (2008) 7 Journal of Social Policy & Practice 178. On the Israeli approach, see Nwankwo, Criminology & Criminal Justice Systems of the World (2011), Ch.13, Criminal Justice System in Israel, p Cnaan et al., The Limits of Citizenship: Rights of Prisoners and Ex-Prisoners in USA (2008) 7 Journal of Social Policy & Practice 178. The standards of humane attitude to prisoners (including those in the UK) have been largely promoted by the European Court of Human Rights/Council of Europe. The European Prison Rules were initially adopted by the Committee of Ministers in 1973 (Resolution 73.5). A new version of the EPR was adopted in 2006, replacing all previous versions. The European Prison Rules are based on the United Nations Standard Minimum Rules for the Treatment of Prisoners, adopted by the UN General Assembly in 2015 after a five-year revision process. 88 Cnaan et al., The Limits of Citizenship: Rights of Prisoners and Ex-Prisoners in USA (2008) 7 Journal of Social Policy & Practice Cnaan et al., The Limits of Citizenship: Rights of Prisoners and Ex-Prisoners in USA (2008) 7 Journal of Social Policy & Practice 178.

130 Analysis and Reflections 569 inmates are permitted to follow online university courses. 90 Even the mass killer Anders Breivik was admitted to pursue several learning modules with Oslo University, though kept in isolation. 91 Different approaches have very different implications for societal safety and crime levels. Thus Norway, where Breivik is a student, at 20 per cent has one of the lowest recidivism rates in the world, while the US has one of the highest: 76.6 per cent of prisoners are rearrested within five years. 92 UK statistics show about 26.8 per cent. 93 To provide further comparison, the US is first in the world for prison population per 100,000 of national population, while the UK is 102nd (higher than China, at 126th place), France 149th, the Netherlands 161st, Germany 167th, Sweden 179th, Japan 198th and Iceland 201st. 94 The debate about prisoners rights in the UK is emblematic of the whole of the EU. One of the aspects which makes Europe distinctive, if not progressive even in comparison to other Western democracies such as the US or Australia is a dignity-driven approach to, inter alia, prisoners rights. 95 The restorative justice in Europe focuses on repairing harm to society by deprivation of freedom and the rehabilitation of prisoners instead of their punishment. 96 The ECtHR has systematically sustained this purpose of punishment and tolerant outlook on prisoners in its multiple decisions on the hygienic conditions in prisons, 97 prohibition of inhuman treatment of inmates, 98 and particularly topically for the UK on supporting voting rights for prisoners as an aspect of their fully fledged integration into society as active citizens. 99 In contrast, the Court of Justice has downgraded the status of prisoners by excluding them even in principle from integration with wider society. Considering a term of imprisonment as irrelevant for citizenship regimes is one of the key markers of otherness, which can be just as essential to the formation of the notion of citizenship as it is to undermining the same, since it establishes the elusive line between valid and invalid E. James, The Norwegian Prison Where Inmates Are Treated Like People (25 February 2013), Guardian, http: // [Accessed 8 July 2016]. 91 D. Crouch, Anders Breivik Enrolled on Oslo University Political Science Course (17 July 2015), Guardian, [Accessed 8 July 2016]. 92 Penal Reform International, Global Prison Trends 2015 (London: 2015), /uploads/2015/04/pri-prisons-global-trends-report-lr.pdf [Accessed 8 July 2016]. 93 Penal Reform International, Global Prison Trends 2015 (London: 2015), /uploads/2015/04/pri-prisons-global-trends-report-lr.pdf [Accessed 8 July 2016]. 94 Penal Reform International, Global Prison Trends 2015 (London: 2015), /uploads/2015/04/pri-prisons-global-trends-report-lr.pdf [Accessed 8 July 2016]. 95 Easton, Prisoners Rights (2011), p.4. This statement is not to undermine the criticism towards a number of CoE countries with terrifying standards of detention in prisons (in particular, in Russia), including the cases of overcrowding in prisons. 96 Easton, Prisoners Rights (2011), p.4. See also the recent decision in Khoroshenko v Russia (41418/04) 30 June 2015, where the Grand Chamber of the ECtHR allowed family visits for life prisoners. Furthermore, it positioned rehabilitation as the primary goal of imprisonment even for prisoners destined to spend their whole life in detention. The Strasbourg Court also makes it abundantly clear that maintaining meaningful bonds with families and friends is central to rehabilitation. Life sentences, thus, can no longer entail the civil death (and the loss of hope) of the prisoner. For a commentary, see K. Dzehtsiarou and F. Fontanelli, Family Visits to Life Prisoners: Khoroshenko v. Russia (2 July 2015), Strasbourg Observes, -khoroshenko-v-russia/ [Accessed 8 July 2016]. 97 Kalashnikov v Russia (2003) 36 E.H.R.R. 34 (hygienic conditions of cells); Varga v Hungary (2015) 61 E.H.R.R. 30 (prison overcrowding); Florea v Romania 14 September 2010 (passive smoking in detention). 98 Shchokin v Ukraine [2011] S.T.C. 401 (ill-treatment by cell-mates); Tali v Estonia 13 February 2014 (ill-treatment by prison officers); Frérot v France 12 June 2007 (strip searches of prisoners); Moisejevs v Latvia 15 June 2006 (inadequate diet provided to a prisoner); Mouisel v France (2004) 38 E.H.R.R. 34 (medical assistance to prisoners with a physical illness). 99 See Hirst (No.2) v United Kingdom (2006) 42 E.H.R.R. 41 (prisoners rights to vote) and many other cases, in fn B. Anderson and V. Hughes (eds), Citizenship and its Others (Basingstoke: Palgrave Macmillan, 2015).

131 570 European Law Review Why the Court is wrong miscomprehended effet utile and EU citizenship Another case bites the dust, or the Dark Ages of A.G. Bot Regrettably, the reasoning in the Court s cases on prisoners rights follows a most restrictive line of Luxembourg judgments on criminal measures and deportation. 101 In that line of case law the ECJ substantially watered down the actual protection afforded to EU citizens resident in Member States other than their Member States of nationality, by restrictive application of the public policy and public security derogations. 102 The deportation trend, which began with Tsakouridis 103 and which has continued with PI, 104 could not possibly be predicted based either on the wording of the relevant provisions of the Citizens Free Movement Directive, preceding case law 105 or on the legislative history of the Directive in question, 106 and fits well with the recent case law profoundly undermining EU citizenship in a number of crucial areas, in what Eleanor Spaventa characterised as a reactionary phase of EU citizenship development. 107 This case law does not solve any of the outstanding problems at hand. Legally problematic, it also seems to be deprived of common sense: since the Union is not safer if a criminal is moved from one Member State to another, the ECJ s approach provided nothing but a classic example of a somewhat too faithful rendition of a Cohen-inspired moral panic. 108 In this respect, Onuekwere and MG join other ill-conceived cases where the Court has used criminal law in an unconvincing effort to nod to the ideological nationalisms of the Member States, while disrupting the EU s promise of bringing a citizenship to life, 109 and running counter to the set course of European integration, the whole purpose of which is to provide a glimpse of rationality against which the nationalist assumptions are to be assessed. 110 This betrayal of EU law, ironically, is strikingly futile, since it does not solve any of the outstanding problems related to combating criminality either in the Union as a whole or in particular Member States. This is thus both a useless and an unwelcome sacrifice of EU law aspirations and the idea of rationality and common sense considerations we would expect the Court to hold in high esteem. Implicitly, the ECJ seems to be adopting an outright absurd fiction that restricting the scope of residence rights in a Union without internal frontiers successfully eliminates the perceived threat. 101 D. Kostakopoulou-Dochery and N. Ferreira, Testing Liberal Norms: The Public Policy and Public Secutiry Derogations and the Cracks in European Union Citizenship (2014) 20 Columbia J. Eur. L. 167; Kochenov and Pirker, Deporting EU Citizens within the European Union (2013) 19 Col. J. Eur. L Kostakopoulou, When EU Citizens Become Foreigners (2014) 20 E.L.J Tsakouridis (C-145/09) EU:C:2010:708. For the facts of Tsakouridis, see fn PI v Oberbürgermeisterin der Stadt Remscheid (C-348/09) EU:C:2012:300. An Italian national, Mr I, had lived in Germany for more than 10 years, before he was ordered an expulsion and deprived of residence rights after a term of imprisonment of seven years for the acts of rape towards his former partner s daughter. The Court left it up to the Member State to interpret the concept of imperative grounds of security applicable in the cases of expulsion. 105 For a most meticulous analysis, see N. Nic Shuibhne, Derogating from the Free Movement of Persons: When Can EU Citizens Be Deported? (2006) 8 C.Y.E.L.S See also A. Barav, Court Recommendation to Deport and the Free Movement of Workers in EEC Law (1081) 6 E.L.R M. Meduna, Institutional Report on Citizenship, FIDE Spaventa, Earned Citizenship in EU Citizenship and Federalism (2016, forthcoming). Daniel Sarmiento and Eleanor Sharpston speak of citizenship exhaustion instead: Sarmiento and Sharpston, European Citizenship and Its New Union in EU Citizenship and Federalism (2016, forthcoming). 108 E. Goode and N. Ben-Yehuda, Moral Panics: The Social Construction of Deviance, 2nd edn (Oxford, Cambridge, MA: Wiley-Blackwell, 2009). 109 As reflected, inter alia, in the Preamble to the Treaty. 110 W. Kymlicka, Liberal Nationalism and Cosmopolitan Justice in S. Benhabib, Another Cosmopolitanism (Oxford: Oxford University Press, 2006), p.134.

132 Analysis and Reflections 571 The suspicion that the Court chose to link the two judgments analysed to its aforementioned moralising stream of cases 111 is reinforced by virtue of explicit emphasis on Tsakouridis in the MG judgment. 112 As for Onuekwere, although the Court does not directly refer to Tsakouridis, it essentially supports the view of A.G. Yves Bot, whose Opinion echoes his own in Tsakouridis, 113 famous for its untenable assumptions, including that Germans do not rape their daughters, but Italians residing in Germany do, 114 for instance. The values exist, for A.G. Bot, only in some imaginary society, which necessarily gets undermined every time it comes into contact with the actual social reality, which, although at times more disturbing, is also infinitely more interesting. It is the real reality, not the imaginary world that the law should strive to regulate. Evidently speaking about an integrated citizen as someone who cannot commit a crime is an unfortunate and hypocritical approach to the idea of integration, since integration happens into the complex fabric of real human interactions and living together, not into an idealist fairy-tale. Instead of burying its old monsters, the Court thus chose to resurrect them in a new context, creating a long-term dilemma for prisoners rights in the EU. In substance, the Court links the level of protection to the level of integration without offering any serious reasons why prisons are excluded from the space integration occurs in. Moreover, not allowing for the real deployment of proportionality at the national level, the Court de facto switches off the national (i.e. per se the only truly relevant) understanding of integration, pointlessly as we have seen promoting its own view that the stigma of imprisonment should prevail no matter what. In this sense especially what the Court says about how to count prison terms in the Directive is not defensible, quite possibly entering the pantheon of most puzzling moments in the Court s jurisprudence. Not much room is left, in the context of such a supranational Diktat, to look at the reasons for imprisonment either 115 : the prisoners citizenship and dignity are thereby deactivated by EU law not something an unsuspecting reader would ever be able to infer from the text of Directive 2004/38, especially not in the light of the goals of this instrument. 116 In this light the dubious presumptions entertained by the Court are particularly striking. The acute contradiction between the recent case law in question and the general understanding of EU citizenship, 117 as well as citizenship as such particularly as developed in ECtHR case law on prisoners rights mentioned above is obvious in this context. The general vector in the development of citizenship in all the liberal democratic polities around the world in recent decades is clear and well-documented. 118 As Joppke has demonstrated, this development is marked by the thinning out of the essential elements of the legal status as well as the opening up of a 111 For a detailed analysis, see e.g. Azoulai, Transfiguring European Citizenship: From Member State Territory to Union Territory in European Citizenship and Federalism (2016, forthcoming). 112 Formally, another Advocate General, Melchior Wathelet, was appointed in the case of MG. However, the judgment in MG does not mention hearing his Opinion at the sitting, while the Court explicitly cites Tsakouridis six times (at [22], [25], [26], [30], [35], [36] in MG), which is more than any other previous case. The Opinion for Tsakouridis was written by A.G. Yves Bot, which could point towards a strong suspicion that this restrictive stream in the ECJ s cases in recent years is largely influenced by Bot s views. 113 A.G. Bot s Opinion in Tsakouridis (C145/09) EU:C:2010: Kochenov and Pirker, Deporting EU Citizens within the European Union (2013) 19 Col. J. Eur. L Mancano, Criminal Conduct and Lack of Integration into the Society under EU Citizenship (2015) 7 New Journal of European Criminal Law S. Coutts, Union Citizenship as Probationary Citizenship: Onuekwere (2015) 52 C.M.L. Rev. 531, As summarised e.g. in D. Kochenov, The Essence of European Citizenship Emerging from the Last Ten Years of Academic Debate: Beyond the Cherry Blossoms and the Moon (2013) 62 I.C.L.Q J. Carens, Citizenship and Civil Society: What Rights for Residents? in R. Hansen and P. Weil (eds), Dual Nationality, Social Rights and Federal Citizenship in the U.S. and Europe (New York, Oxford: Randall Books, 2002), p.100 at pp See also Y. Zilbershats, Reconsidering the Concept of Citizenship (2001) 36 Texas Int. L. J On the EU constitutional context, see D. Kochenov, Member States Nationalities and the Internal Market: Illustions and Reality in N. Nic Shuibhne and L. Gormley (eds), From Single Market to the Economic Union. Essays in Memory of John A. Usher (Oxford: Oxford University Press, 2012), p.241.

133 572 European Law Review number of citizenship rights to those who do not possess the formal legal status of citizenship. 119 The majority of the rights classically associated with this status are no longer limited to citizens and have been opened to resident non-nationals and others. 120 Indeed, the security of residence and freedom from deportation seems to be the only core right of citizenship 121 that has been free from the influence of the grappling gradual realisation that excluding on the basis of citizenship alone is frequently problematic in the context of the contemporary ethical approaches to personhood, giving rise to the rediscovery of persons next to the citizens in the pantheon of contemporary constitutional thought. 122 As a result, only a very limited set of rights and at times duties remains uniquely associated with the status of citizenship. In this context, where residence plays the key role 123 (no matter how problematic this concept actually is, 124 it is difficult to ignore that it is unquestionably much more socio-culturally consequential than citizenship a birthright lottery), 125 a conceptual firewall is to be erected between the person s immigration status and rights. Successful integration is impossible if any misstep will result in deportation, in being sent away from home. The fundamental premise of EU citizens free movement law is that citizens using free movement rights become part of the society of the host State they have chosen to live in. They vote in municipal and European Parliament elections there. They pay taxes there. They work and educate their children there. All the legal instruments in place in primary and secondary law facilitate the achievement of this reality. The Court s assumption that this goal should not for an unstated reason apply to those who have problems with the law cannot change the fundamental premise of EU free movement law. What it does, however, is to fundamentally threaten the law s coherence and mute its effectiveness, since the law is there precisely to protect those in need of protection, those who face problems, rather than restate that they are not good citizens and are thus not entitled to the help of the law. In order not to aggravate the Court s mistakes, a firewall of separation has to be introduced between criminal law s possibility to affect someone s immigration status with some limited exceptions if these are absolutely necessary and serve very clearly identifiable goals and security of residence. 126 This was undoubtedly the legislator s intention. 127 This is the idea behind having free movement: a friend in need is a friend indeed. To pretend that a German with a Greek passport belongs to German society less if he sells marijuana alters the 119 C. Joppke, The Inevitable Lightening of Citizenship (2010) 51 Eur. J. of Sociology Joppke, The Inevitable Lightening of Citizenship (2010) 51 Eur. J. of Sociology 9; C. Joppke, Immigration and the Identity of Citizenship: The Paradox of Universalism (2008) 12 Citizenship Studies 542. D. Kochenov, Growing Apart Together: Social Solidarity and Citizenship in Europe in F. Pennings and G. Vonk (eds.), Research Handbook on European Social Security Law (Cheltenham: Edward Elgar, 2015). 121 B. Anderson, M. Gibneyand E. Paoletti, Citizenship, Deportation and the Boundaries of Belonging (2011) 15 Citizenship Studies L. Bosniak, Persons and Citizens in Constitutional Thought (2010) 8 International Journal of Constitutional Law 9; L. Azoulai, L autonomie de l individu européen et la question du statut, EUI LAW Working Paper ( ). Ironically, the EU is the probably the only place in the world where even this unique right is undermined by the European Arrest Warrant operating in the context where the level of development of human rights protection and criminal law systems among the Member States varies greatly: S. Iglesias Sánchez, A Citizenship Right to Stay? The Right Not to Move in a Union Based on Free Movement in EU Citizenship and Federalism (2016, forthcoming). 123 G. Davies, Any Place I Hang My Hat? or: Residence is the New Nationality (2005) 11 E.L.J. 43, On the qualifying period of residence as profoundly arbitrary concept, see Opinion of A.G. Sharpston, O v Minister voor Immigratie, Integratie en Asiel (C-456/12) EU:C:2013:474; [2014] 3 C.M.L.R A. Shachar, Birthright Lottery: Citizenship and Global Inequality (Cambridge, MA: Harvard University Press, 2009). 126 J. Carens, On Belonging: What We Owe to People Who Stay (2014) 30 Boston Review, available at [Accessed 12 April 2016]. In the context of the EU, see P. Boeles, Europese burgers en derdelanders: Wat betekent het verbod van discriminatie naar nationaliteit sinds Amsterdam? (2005) 12 Sociaal-Economische Wetgeving Meduna, Scelestus europeus sum in EU Citizenship and Federalism (2016, forthcoming).

134 Analysis and Reflections 573 reality paradigm of German society required by EU law i.e. the requirement that the authorities take the whole socio-anthropological picture of the society they are in charge of into account, rather than those whom they happened to have declared German to a 19th century-inspired selective vision paradigm: that the German State only recognises those it has proclaimed to be German, not German society at large. By embracing the latter position, 128 the Court is treading somewhat unfamiliar terrain, representing someone else s interests rather than those of the EU and its citizens. The rights of incarcerated residents from third countries in the UK (at least of those who are legal residents at the moment of committing an offence) should unequivocally fall into a paradigm of protection almost entirely coinciding with the national and EU citizenship regime. Apart from perhaps voting rights which will eventually be granted to prisoners holding UK nationality under pressure from the emerging European consensus (and from Strasbourg) and the unconditional right to enter and stay in Britain, the catalogue of rights protecting UK nationals and foreigners is practically the same. 129 It is therefore wrong to exclude time spent in prison from the time necessary for acquiring a residence permit or the enhanced protection against deportation, as if imprisoned nationals of a Member State gradually became less its citizens during time spent in prison. As to the finding of the Court with regard to the counting of the residence time backwards, it is probably too esoteric in our world where time tends to flow in one direction 130 to deserve a serious comment, should one not wish to embarrass the Court even more. Foucauldian critique of the Court s arguments In justifying the moral panics in Onuekwere and MG the Court uses two main arguments, both of which boast many a flaw. First, the Court regards the fully fledged integration into a society as a necessary precondition for extending the catalogue of non-citizens rights and enhanced protection. As if this was not problematic enough, the Court locates prisons outside the terrain where normal social integration occurs. Moreover, the Court and its Advocate General construct post-imprisonment limitations as an embedded condition and purpose of restorative punishment. The way the Court and in particular its Advocate General 131 exclude time spent in prison from the integration period raises serious doubts about the purpose of imprisonment. As has been masterfully exposed by, inter alia, Michel Foucault, since the 19th century the role of punishment has changed from the systemic application of pain to a redistributive justice and rehabilitation, i.e. from unbearable sensations to an economy of suspended rights. 132 During this process, prisons gradually evolved from being mere 128 Alokpa is probably the most cynical among the recent illustrations of this approach in the case law of the Court: see Spaventa Earned Citizenship in EU Citizenship and Federalism (2016, forthcoming). 129 D. Kochenov and M. van den Brink, Pretending There Is No Union: Non-Derivative Quasi-Citizenship Rights of Third-Country Nationals in the EU in D. Thym and M. Zoetewij Turhan (eds.), Degrees of Free Movement and Citizenship (Leiden: Brill-Nijhoff, 2015). 130 This is so at least in accordance with the prevailing cultural convention into which the Court, together with the absolute majority of EU citizens, is socialized. For the scientific reality, which is much more complex and interesting, see e.g. I. Novikov, The River of Time (Cambridge: Cambridge University Press, 2001). 131 Opinion of A.G. Bot in Onuekwere (C-378/12) EU:C:2013:640 at [54]: It is clear that every sentence must, in accordance, with the fundamental principles of the law on sanctions, comprise a rehabilitation element to be achieved by appropriate means of implementation. Nevertheless, if a sentence has been imposed, it is precisely because societal values as expressed in the criminal law have been disregarded by the offender ; at [55]: Besides rehabilitation, the sentence also serves the essential purpose of retribution, which aims to make the offender pay for his crime and is proportionate to the gravity of the offence, expressed here by the penalty of imprisonment. These functions cannot operate to negate each other. 132 M. Foucault, Discipline and Punish: The Birth of the Prison, transl. Alan Sheridan (London: Penguin Books, 1975), p.11.

135 574 European Law Review sites of isolation into areas of acclaimed reintegration of criminals into wider society. 133 Approached from this perspective, the Court s judgments considered here are extremely troublesome. If prisons are primarily sites of rehabilitation rather than exclusion from society, the effect of the Court s reasoning runs diametrically counter to this. The performative impact of the Court s rhetoric distinguishes two dichotomist universes: the imperfect world inhabited by prisoners and their custodians, on the one hand, and the bright galaxy outside of prisons. Such logic suggests that this latter world outside the prisons is inhabited by ideal citizens with whom residents from that country are expected to integrate. In the meantime, the underworld of prisons is populated by some other species of citizen who cannot learn any real lessons of integration, as if they are somehow divorced from society. The mechanics of integration is based on the interaction with fellow members of society. Prisoners belong to this society. The majority of them are in fact fully fledged citizens of the country hosting them. So are their custodians, with whom prisoners are supposed to interact on a daily basis. Furthermore, the specific idyllic role of custody in prison should be precisely the integration and rehabilitation of prisoners via the almost pedagogical per se role of prison labour, exposure to the ontological right and wrong in a closed society, and learning to follow the law. Ironically, prisoners are even better students of integration than free residents. While it is unclear whether free residents dispose of sufficient knowledge of the values and law of a given society, prisoners are destined to spend their days of incarceration learning and adopting society s preferred behaviour and viewpoints. One of the central functions of contemporary prison is in fact to encourage personal reform, even if this evidently does not work this way in many places Foucault writes that while Europe has been setting up its new penal systems, judges have gradually begun judging something other than criminal acts, namely, the soul of the criminal. 134 By excluding terms of imprisonment from proper residence, ECJ judges do not bring substantial justice to the lessons of integration learnt in prison. 135 Instead, they undertake to judge and moralise the soul of a prisoner, further excising her/him from humanity and classifying prisoners into the outdated republican box of not quite good enough for citizens. Instead of encouraging the integrative potential of prisons, the judges instrumentalise imprisonment to stigmatise inmates further. The Court s A.G. Bot went even further in miscomprehending the contemporary purpose of punishment, suggesting that, even in the context of reduced sentencing which may find expression, for example, in house arrest or in a part-release scheme obliging the prisoner to return to prison in the evening, it is not possible to consider that the person concerned is residing legally within the meaning of Article 16 (2) of Directive 2004/ Yet by excluding them from territorial scope of Union law, the judges also limit the EU citizenship of prisoners. If prisoner-residents are deprived of proper integration in prisons, surely that means that prisoner-citizens equally do not represent adequate role models as integrated citizens? If that perspective is adopted, then a prisoner s right to vote must represent a corrosive influence, despite the fact that denying inmates voting rights or stripping them of proper residence violates the Charter and does not serve a rehabilitative function. 137 It will often have the further effect of discriminating against those belonging to 133 Unlike the approach defended in this article, Foucault sensu stricto does not describe this process as one of enlightenment and civilisation, but rather as a different way of exerting power. Instead of being publicly displaced, offenders are now excluded from society. 134 Foucault, Discipline and Punish (1975), p Foucault does not describe the lessons learnt in prison in terms of integration, but rather in terms of discipline. The soul is born out of methods of punishment, supervision and constraint : Foucault, Discipline and Punish (1975), pp Opinion of A.G. Bot in Onuekwere (C-378/12) EU:C:2013:640 at [56]. 137 S. Peers, T. Herves, J. Kenner and A. Ward, The EU Charter of Fundamental Rights: The Commentary (Oxford: Hart Publishing, 2014).

136 Analysis and Reflections 575 low-paid classes and minority groups, considering that the derivative nature of the residence rights for third-country nationals. 138 On the contrary, allowing inmates to exercise their residence and voting rights encourages responsible citizenship, maintains an offender s connection with wider society, reduces their inequality of opportunity and boosts the integration and rehabilitation of prisoners. In addition it affords distributive justice to prisoners, considering the evolving economy of prisons built on the work of prisoners. 139 Historically, the use of prisoners has been common in such areas as public works, cleaning city streets or repairing highways. 140 Nonetheless, the Court has disregarded the voluminous literature on standards of punishment and current developments in prisoners rights and instead adopted the outdated deprivation of residence time as a contemporary analogue to the iron collar or chains for the spectacle of punishment, as if punishment and a criminal record were not enough. 141 This latter aspect reveals another crucial fallacy in the Court s reasoning, based on its inability to distinguish proper punishment from the spectacle of punishment. As the economy of punishment was redistributed, torture disappeared as a public spectacle. 142 Yet symbolic torture and the performative act of punishment remain. Deprivation of citizenship/residence rights is a clear reminiscence of this public spectacle, inflicting the moral pain of alienation from society. The apparatus of punitive justice must now bite into this bodiless reality. 143 By excluding imprisonment from residence, the Court artificially constructs another element of punishment, the post-punishment. Instead of emphasising the proper punishment (that is imprisonment), the Court has added an additional element of deterrence to criminal justice through limitation of residence. If the purpose of this limitation is to manifest the unsuitability of a prisoner for certain social roles or to exclude ex-prisoners from security-sensitive areas of society, the measure chosen 138 For a similar critique in the US context, arguing that the disenfranchisement of prisoners further marginalises Afro- and Latino- Americans, see J. Schall, The Consistency of Felon Disenfranchisement with Citizenship Theory (2006) 202 Harvard BlackLetter L.J. 53, See also S. Gabbidon and H. Green, Race and Crime (London: Sage, 2013). 139 Foucault cites Rusche and Kirchheimer, who related the different systems of punishment with the system of production within which they operate: thus, in a slave economy, punitive mechanisms serve to provide an additional labour force and to constitute a body of civil slaves in addition to those provided by war or trading; with feudalism, at a time when money and production were still at an early stage of development, we find a sudden increase in corporal punishments the body being in most cases the only property accessible; the penitentiary (the Hôpital général, the Spinhuis or the Rasphuis), forced labour and the prison factory appear with the development of the mercantile economy. However, the industrial system requires a free market in labour and, in the nineteenth century, the role of forced labour in the mechanisms of punishment diminishes accordingly and corrective detention takes its place. See Foucault, Discipline and Punish (1975), p.24. See also G. Rusche and O. Kirchheimer, Punishment and Social Structures (New York: Transaction Publishers, 1939). 140 Foucault, Discipline and Punish (1975), pp Foucault, Discipline and Punish (1975), pp.8 9: These convicts, distinguished by their infamous dress and shaven heads, were brought before the public. The sport of the idle and the vicious, they often become incensed, and naturally took violent revenge upon the aggressors. To prevent them from returning injuries which might be inflicted on them, they were encumbered with iron collars and chains to which bombshells were attached, to be dragged along while they performed their degrading service, under the eyes of keepers armed with swords, blunderbusses and other weapons of destruction. While the chain-gang, which had dragged convicts across the whole of France, as far as Brest and Toulon, was replaced in 1837 by inconspicuous black-painted cell-cards. Punishment had gradually ceased to be a spectacle. 142 Foucault, Discipline and Punish (1975), pp.15 16: But punishment like forced labour or even imprisonment mere loss of liberty has never functioned without a certain additional element of punishment that certainly concerns the body itself: rationing of food, sexual deprivation, corporal punishment, solitary confinement There remains, therefore, a trace of torture in the modern mechanisms of criminal justice a trace that has not been entirely overcome, but which is enveloped, increasingly, by the non-corporal nature of the penal system. 143 Again, returning to Foucault s eloquent narrative: The old partners of the spectacle of punishment, the body and the blood, gave away. A new character came on the scene, masked. It was the end of a certain kind of tragedy; comedy began, with shadow play, faceless voices, implacable entities : Foucault, Discipline and Punish (1975), pp

137 576 European Law Review is definitely excessive. Apart from proper incarceration, prisoners also receive a criminal record, which already limits their opportunities on the employment market, their political opportunities, not to mention personal stigma and well-documented complications in personal life. 144 Ex-prisoners are thus already punished twice, both by virtue of imprisonment and after prison, because most states impose restrictions on hiring ex-prisoners in fields such as law, education, real estate, nursing and medicine. 145 Likewise, the mobility of inmates is restricted during both incarceration and after, considering that many states will immediately decline visa applications to people with criminal records. Moreover, a number of limitations are already introduced as security measures which accompany penalties: prohibition from entering certain areas, probation, obligatory medical treatment, etc. They are intended not to punish the offence, but to supervise the individual, to neutralise her dangerous state of mind, to alter his criminal tendencies. In this respect, stripping prisoners of their residence time is disproportionate outright and can be regarded as an additional punishment. Conclusions zoning EU spaces through civiliter mortuus As any student of EU law learns first, the current geography of the Union comprises 28 Member States. Its European territory extends northeast to Finland, northwest to Ireland, southeast to Cyprus and southwest to Iberia. The territorial scope of the Union also covers numerous islands around the globe and even a part of South America. 146 Yet apparently, as the Court made clear in its 2014 judgments, there are Union spaces even within Europe which fall substantially outside EU protection. They are populated by vicious citizens and served by custodians who are unable to teach integration to their residents. All the truly virtuous people live outside these enclaves. Despite the ECtHR s liberalising trend in protecting prisoners rights, in particular in the anachronistic UK context, the ECJ has substantially limited the status and protection of inmates. In doing so, it adopted an outdated vision of the purposes of imprisonment and has excluded prisons from being integrated into wider society and consequently from the scope of EU standards on protection of minorities, the rule of law and justice. Furthermore, by excluding prisons from the scope of wider national and EU society, the Court has de facto expelled the prisoner-citizens and citizen-workers of the penitentiary system from the normal category of EU citizens capable of facilitating integration for third-country nationals. It is as if there are two categories of citizens in Europe with whom a third-country national is supposed to integrate: the first represented by vicious prisoners and their custodians and the second composed of all the other perfectly virtuous citizens outside the prison walls, as if the latter were erected in some foreign country. The Court has once again reproduced the outdated template of republican citizenship with its embedded idealistic expectations of the virtues of citizens and has essentially revitalised elements of the archaic doctrine of civil death in the EU settings. Historically, various types of behaviour have been criminalised and sanctioned by custody: from abortion and possession of pornography to homosexual 144 Furthermore, the deterrent effect, which aims to reduce the number of accidents by imposing a heavy financial cost on unsafe behaviour, is also calculated twice. In criminal theory deterrence can address those who would otherwise commit crimes (general deterrence) or make it less likely that those serving prison sentences will commit crimes after their release (individual deterrence). See J. Andenaes, Punishment & Deterrence (Ann Arbor: University of Michigan Press, 1974). 145 Other states bar ex-prisoners from working in any position involving the handling of money including cashier in a supermarket or working as a bank teller. In the US, they are also barred from carrying guns and, as such, are barred from many security-related jobs. Six states permanently bar ex-prisoners from holding any public employment. Increasingly many organisations require applicants for work or education to reveal any criminal history. See G. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction (2012) 60 University of Pennsylvania L.R D. Kochenov (ed.), EU Law of the Overseas (The Hague: Kluwer International, 2011).

138 Analysis and Reflections 577 intercourse. 147 Nonetheless, the Court unequivocally refused to view custody as any form of valid integration into the host society. It is therefore worrisome to think about the potential of the Court s decision in excluding various groups and individuals from the scope of EU law protection. Having understood this problematic approach, we can now suggest a fairly simple alternative interpretation of periods of imprisonment from a residence perspective, which would do more justice to the structure of the integration requirement of Directive 2004/38. Limitation of residence rights ought to be a justifiable option only where there is a genuine concern for public security. However, most centrally, it should not be a blanket limitation of residence rights independent of the threat to public security and the nature of the committed crime. The need to consider the particular dangerous features of the individual case is thus helpful and correct, but systematically requires more emphasis than the Court has given to it so far. The primary purpose of prisons is integrating individuals into society via rehabilitation. Following this proportionality test, the term of imprisonment in both cases should have been viewed as a period of integration in the host society. A criminal record is a sufficient safeguard to reduce the possible negative impact of ex-prisoners on society, while excluding imprisonment from calculating proper residence spans is disproportionate outright. European law will only benefit if cases like Onuekwere and MG are decided fundamentally differently. In an ideal world the Court, to play its role in a democracy, should not be deferential to the legislative outcomes of a democratic process which are harmful or make no sense. Here, however, the Court s behaviour is receptive to political ideologies from some Member States, which, in addition to being baseless and likely to result in less safety through reoffending by the social outcasts they create, also directly contradict the legislature: another moral failure of the Union, unable to boast a clear vision of justice, equality or democracy. 148 By excluding prison time from the period of proper integration in society, the Court has set a long-term prisoner s dilemma for the Union. Should inmates not fall within society proper, how could they possibly enjoy voting rights for the European Parliament? Not only did the Court fortify its previous misleading line of case law on a moralistic emasculation of EU citizenship in matters of public security, it has potentially sown the seeds for a future conflict with the law of the Council of Europe. More than two decades ago, Joseph Weiler made a plea to the EU not to oppress the stranger. 149 By undermining the goals of integration through the embrace of the irrational moralism of punishment, the Court now seems willing to oppress its own: EU citizens stand stripped of protections for no objective reason. The developments described do not make European cities safer, do not improve the lives of EU citizens, undermine the achievement of the goals of EU integration and are bound to be reversed, should the EU story be a success. 147 U. Belavusau, Art, Pornography and Foucauldian Reconstruction of Comparative Law (2010) 17 M.J. Eur. & C. Law 252; D. Lindemann, Pathology: Full Circle: History of Anti-Vibrator Legislation in the United States (2006) 15 Col. J. Gender & L. 326; W. Müller, The Criminalization of Abortion in the West: Its Origins in Medieval Law (Ithaca, NY: Cornell University Press, 2012); C. Whisnant, Male Homosexuality in West Germany: Between Persecution and Freedom, (Basingstoke: Palgrave, 2012). 148 D. Kochenov, G. de Búrca and A. Williams (eds), Europe s Justice Deficit? (Oxford: Hart Publishing, 2015). 149 J. Weiler, Thou Shalt not Oppress a Stranger: On the Judicial Protection of the Human Rights of Non-EC Nationals A Critique (1992) 3 E.J.I.L. 65.

139 578 European Law Review Gazprom OAO v Lietuvos Republika: A Victory for Arbitration? Eva Storskrubb * Uppsala University Allocation of jurisdiction; Anti-suit injunctions; Arbitration awards; Enforcement; EU law Abstract The long-awaited ruling in Gazprom deals with the complex intersection between arbitration and the Brussels I Regulation, the flagship regulation of EU civil justice. The much-debated reform of the Regulation and in particular its arbitration exclusion following the judgment of the Court of Justice in West Tankers, relating to anti-suit injunctions in support of arbitration, formed the backdrop to the ruling in Gazprom. The Court reaffirmed the judgment in West Tankers and confirmed that anti-suit injunctions are contrary to the mutual trust between courts in the EU. However, the circumstances in Gazprom, an arbitral award including an order prohibiting a party from bringing certain claims in court, did not fall within the scope of the Brussels I Regulation. Thus the ruling can be seen as a small victory for arbitration. Background Gazprom OAO v Lietuvos Republika (C-536/13) (Gazprom) 1 is significant and interesting in many respects and there are various perspectives to take when reviewing the case. The global and in particular European energy markets, specifically the gas market, forms the backdrop to the case. The market is of high importance and commercial power in the field can be used as a geopolitical bargaining chip. Leaving that perspective aside, the energy markets have themselves undergone changes and faced challenges in recent years, in the gas market one of the changes comes from the entry of shale gas on to the market, in particular in the US. 2 The gas market, in which long-term supply contracts have been a common feature, has experienced a surge of litigation as a result of these challenges and dissatisfaction with traditional pricing. 3 Such disputes are commonly dealt with in commercial arbitration with various international arbitration institutes and the countries they are located in being popular venues for such dispute resolution. 4 In the * Marie Curie Research Fellow. Attorney at Law, Roschier, Stockholm (on leave of absence). I am grateful to Professor Emeritus Trevor Hartley for comments and exchanges in preparing this article. I naturally bear responsibility for its content. 1 Gazprom OAO v Lietuvos Republika (C-536/13) EU:C:2015:316; [2015] 1 W.L.R Shale gas refers to natural gas that is trapped within shale formations. Shales are fine-grained sedimentary rocks that can be rich resources of petroleum and natural gas. Over the past decade, a combination of horizontal drilling and hydraulic fracturing has allowed access to large volumes of shale gas that were previously uneconomical to produce. The production of natural gas from shale formations has rejuvenated the natural gas industry in the US and had an impact on gas markets. See e.g. R. Anderson, Will US shale gas bring global energy prices tumbling down? (3 June 2015), BBC News Online, [Accessed 9 July 2016]. See also C. Mulcahy, The Changing Face of Disputes in the Liquefied Natural Gas Market (2015) 33 Journal of Energy and Natural Resources Law 271, , on recent market changes. 3 Mulcahy, The Changing Face of Disputes in the Liquefied Natural Gas Market (2015) 33 Journal of Energy and Natural Resources Law 271, Mulcahy, The Changing Face of Disputes in the Liquefied Natural Gas Market (2015) 33 Journal of Energy and Natural Resources Law 271, 280, The venue and institute relevant in Gazprom were Stockholm and

140 Analysis and Reflections 579 EU Member States that have such venues, international dispute resolution is often seen as an important market itself. The global litigation market and in particular the international commercial arbitration market thus forms another backdrop to the case. Commercial dispute resolution issues remained for a long time unregulated in the EU aside from a couple of specific private international law conventions (the Brussels Convention of 1968 concerning jurisdiction and recognition of judgments as well as the Rome Convention of 1980 concerning choice of law in contracts). 5 However, since 1999 when the Amsterdam Treaty entered into force the EU has increasingly, under the political project of the Area of Freedom Security and Justice (AFSJ), regulated and legislated in the field of cross-border commercial disputes. 6 Today we have a panoply of EU legislation aside from the Brussels I and Rome I Regulations that have replaced the above-mentioned conventions dealing with cross-border civil procedural issues concerning inter alia service of documents, evidence, enforcement orders and payment orders for uncontested claims, insolvency, small claims, mediation, legal aid and attachment of bank accounts. 7 In addition, harmonisation of civil procedural rules and remedies is also taking place within some substantive areas of EU law such as the consumer, competition and intellectual property law fields. 8 Therefore, the EU impacts increasingly also on commercial dispute resolution in domestic courts or other dispute resolution bodies and how the courts interact with respect to one another is one of the underlying issues in Gazprom including the concept of mutual trust between courts in the EU. However, regardless of this development, one facet of commercial dispute resolution arbitration has historically fallen outside the purview of the EU, and some of the above-mentioned legislative measures the Arbitration Institute of the Stockholm Chamber of Commerce (SCC). The SCC is among the leading international arbitration venues; see its 2015 statistics at [Accessed 9 November 2015]. 5 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters [1972] OJ L299/32 and Rome Convention on the law applicable to contractual obligations [1980] OJ L266/1. 6 For a history of the development of the policy are see E. Storskrubb, Civil Justice A Newcomer and an Unstoppable Wave? in P. Craig and G. de Búrca (eds), The Evolution of EU Law, 2nd edn (Oxford: Oxford University Press, 2011), p.299. For a newly published work on the policy area see B. Hess, M. Bergström and E. Storskrubb (eds), EU Civil Justice: Current Issues and Future Outlook, Vol.7 Swedish Studies in European Law (Oxford: Hart Publishing, 2016). 7 In relation to the Brussels I Regulation see below (fn.10). In relation to choice of law there are two Rome regulations now relevant for commercial dispute resolution: Regulation 593/2008 on the law applicable to contractual obligations (Rome I) [2008] OJ L177/6, and Regulation 864/2007 on the law applicable to non-contractual obligations (Rome II) [2007] OJ L199/40. See further Regulation 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters and repealing Regulation 1348/2000 [2007] OJ L324/79; Regulation 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters [2001] OJ L174/1; Regulation 805/2004 creating a European Enforcement Order for uncontested claims [2004] OJ L143/15; Regulation 1896/2006 creating a European payment procedure [2006] OJ L399/1; Regulation 1346/2000 on insolvency proceedings [2000] OJ L160/1; Regulation 861/2007 establishing a European Small Claims Procedure [2007] OJ L199/1; Directive 2002/8 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes [2003] OJ L26/41; Directive 2008/52 on Certain Aspects of Mediation in Civil and Commercial Matters [2008] OJ L136/3; and Regulation 655/2014 creating a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters [2014] OJ L189/59. Note that owing to separate protocols to the Lisbon Treaty measures in the field may not apply to UK, Ireland and Denmark. Note also that the policy area includes separate measures specifically for family law matters that are not relevant for commercial dispute resolution. Finally, note that herein are only enumerated the EU law measures; when they are not applicable, other international bilateral or multilateral conventions may apply, among the latter in particular those agreed under the auspices of the Hague Conference on Private International Law. 8 For the most recent measures see Directive 2013/11 on alternative dispute resolution for consumer disputes [2013] OJ L165/63; Regulation 524/2013 on online dispute resolution for consumer disputes [2013]OJ L165/1; Directive 2014/104 on certain rules governing actions for damage under national law for infringements of the competition law provisions of the Member States of the EU [2014] OJ L349/1; Agreement on a Unified Patent Court [2013] OJ C175/1, the latter not formally constituting a piece of EU legislation but an international agreement.

141 580 European Law Review for cross-border commercial disputes contain a limitation specifically excluding arbitration from their scope creating the impression of mutual indifference. 9 This so-called arbitration exclusion was already included in the Brussels Convention mentioned above. The wording of the exclusion is brief and rather blunt and one may ask what it actually entails in the context of each of the measures that it shall not apply to arbitration. With respect to the Brussels Convention and subsequent Brussels I Regulation, 10 the Court of Justice has rendered three judgments on the arbitration exclusion, and until Gazprom the most recent case was Allianz SpA and Generali Assicurazioni Generali SpA v West Tankers Inc (C-185/07) (West Tankers). 11 West Tankers raised criticism and concern from the arbitration community, and the existence and interpretation of the arbitration exclusion became one of the focal points of the reform process of the Brussels I Regulation. 12 In the new Brussels I (recast) Regulation, which has been applicable since January 2015, the arbitration exclusion has been retained unamended, but a new Recital 12 has been added to the Regulation to provide guidance on its interpretation. Another underlying issue that arises in Gazprom, in particular owing to the Opinion of A.G. Wathelet, 13 is how Recital 12 should be interpreted and whether West Tankers is still good law. How one deals with and understands these issues at the more detailed level seems to depend partly on whether one s perspective, practice or expertise falls within civil procedure, commercial arbitration, private international law or EU law. Many commentators in the debate following the West Tankers ruling seemed to adopt or inadvertently approach the issues from only one of these perspectives. Some commentators appeared to take sides, and questions were raised whether EU law or the Court of Justice is arbitration friendly or not. These positions are helpful in identifying the various perspectives but they sometimes fall short of seeing the whole picture. I will in this analysis strive to include multiple perspectives. The facts of the case The case concerns parallel proceedings under a shareholders agreement between E.ON Ruhrgas International GmbH, Gazprom and the Republic of Lithuania through its Ministry of Energy owning at the relevant point in time 38.91, 37.1 and 17.7 per cent respectively of the shares in Lietuvos dujos AB. 14 Lietuvos dujos AB is a company formed under Lithuanian law whose business consists in buying gas from Gazprom, conveying it and distributing it in Lithuania, and also in managing the gas pipelines and transporting gas to the Region of Kaliningrad of the Russian Federation. 15 Lietuvos dujos AB distributed a considerable share (90 per cent) of the gas supply in Lithuania. 16 The shareholders agreement contained an arbitration 9 This does not mean that EU law does not impact on or intersect with arbitration and there are other issues related to this intersection than the issues touched upon briefly in this article. See G. Bermann, Navigating EU Law and the Law of International Arbitration (2012) 28 Arbitration International 397. See also T. Cole (et al.), The Legal Instruments and Practice of Arbitration in the EU, European Parliament Study PE (2015), specifically pp.3 15 and in relation to commercial arbitration. 10 The Brussels Convention was as noted replaced by a regulation, Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L12/1 (Brussels I Regulation), which has subsequently been repealed by Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2012] OJ L351/ 1 (Brussels I (recast) Regulation). The term the Brussels I regime will be used as a generic term in this contribution encompassing the three instruments: the Convention and the two subsequent Regulations. 11 Allianz SpA and Generali Assicurazioni Generali SpA v West Tankers Inc (C-185/07) EU:C:2009:69; [2009] 1 A.C See e.g. B. Hess, The Brussels I Regulation: Recent Case Law of the Court of Justice and Commission s Proposed Recast (2012) 49 C.M.L. Rev. 1075, , for a brief review of the reform process. 13 Opinion of A.G. Wathelet in Gazprom (C-536/13) EU:C:2014: Gazprom (C-536/13) EU:C:2015:316 at [12] [13]. 15 Opinion of A.G. Wathelet in Gazprom (C-536/13) EU:C:2014:2414 at [21]. 16 Opinion of A.G. Wathelet in Gazprom (C-536/13) EU:C:2014:2414 at [23].

142 Analysis and Reflections 581 clause. 17 In March 2011 the Republic of Lithuania applied to the Regional Court of Vilnius seeking the initiation of an investigation into the activities of Lietuvos dujos AB and certain of its corporate officers and also claiming corrective measures if it was established that the actions of the company or its corporate officers were improper. 18 The underlying issue was whether the board had negotiated long-term gas supply contracts with Gazprom that unfairly benefited the Russian side. 19 Gazprom took the view that that application breached the arbitration clause in the shareholders agreement and filed a request for arbitration against the Lithuanian Ministry of Energy at the Arbitration Institute of the Stockholm Chamber of Commerce in August Gazprom requested that the arbitral tribunal order the Ministry to discontinue the proceedings pending before the Regional Court in Vilnius. 20 In July 2012 the arbitral tribunal declared that the arbitration clause in the shareholders agreement had been partially breached and ordered the Ministry of Energy to withdraw or limit some of the claims which it had brought before the Regional Court in Vilnius. 21 Gazprom sought to enforce that arbitration award and applied to the Lithuanian Appeal Court for its recognition and enforcement. The Appeal Court denied the application based on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York 1958) (the New York Convention) on grounds of non-arbitrability of the subject matter and public policy and found that the arbitral tribunal had unlawfully deprived that national court of the power to determine whether it has jurisdiction. 22 The matter then came to the Lithuanian Supreme Court on appeal and it made the preliminary reference to the Court of Justice in the context of these recognition and enforcement proceedings. In parallel to the arbitral and award enforcement proceedings the Regional Court of Vilnius granted the application of the Ministry of Energy and ordered that an investigation of the activities of Lietuvos dujos AB be initiated. It also held that an application for investigation of the activities of a legal person fell within its jurisdiction and was not arbitrable under Lithuanian law. 23 The appeal of that order was subsequently dismissed by the Lithuanian Court of Appeal and the matter thereafter proceeded on further appeal to the Lithuanian Supreme Court. The Supreme Court decided to stay these appeal proceedings, until it had given judgment on the parallel appeal concerning recognition and enforcement of the arbitral award. 24 The issue and prior case law The Court of Justice rephrased the questions set by the Lithuanian Supreme Court in Gazprom and held that what in essence was at stake was whether the Brussels I Regulation must be interpreted as precluding a court of a Member State from recognising and enforcing, or from refusing to recognise and enforce, an arbitral award prohibiting a party from bringing certain claims before a court of that Member State, a prohibition that potentially has an impact in practice on the authority of a court to rule upon its own jurisdiction. The uncertainty of the Supreme Court can only be understood with knowledge of the preceding case law of the Court of Justice and in particular its finding in West Tankers. The preceding case law demonstrates why this matter was referred to the Court of Justice and why it was dealt with in Grand 17 Gazprom (C-536/13) EU:C:2015:316 at [13]. 18 Gazprom (C-536/13) at [14] [15]. 19 See D. Thomson, Gazprom award recognised in Lithuania (5 November 2015), Global Arbitration Review, [Accessed 9 July 2016]. 20 Gazprom (C-536/13) at [16] [17]. 21 Gazprom (C-536/13) at [18]. 22 Gazprom (C-536/13) at [21] [22]. 23 Gazprom (C-536/13) at [19]. 24 Gazprom (C-536/13) at [23] [24].

143 582 European Law Review Chamber. There are two relevant strands in the preceding case law. The first strand deals with the arbitration exclusion in the Brussels I regime. The second strand deals with the question of the authority to determine a court s jurisdiction based on the jurisdictional rules of the Brussels I regime and the acceptability in the EU of so called anti-suit injunctions. Both these strands were relevant and coalesced in West Tankers and it is in their intersection that the complexity of the matter lies. The case law on the arbitration exclusion prior to West Tankers held that the Brussels I regime does not apply to court proceedings which are ancillary to arbitration proceedings, for example the appointment or dismissal of an arbitrator, and that in order to determine whether a dispute falls within the regime reference must be made solely to the subject-matter of the dispute at hand. 25 The second strand of case law on the authority to determine a court s jurisdiction follows the jurisdictional scheme of the Brussels I regime and its lis pendens rule. According to this rule, it is the court first seised that shall decide upon its jurisdiction first in case of claims made in multiple jurisdictions between the same parties in the same matter, and all other courts must of their own motion stay their proceedings until such determination. 26 The mutual trust that this rule reflects was confirmed in Erich Gasser GmbH v MISAT Srl (C-116/02) (Gasser) where it was held that the court second seised under an exclusive choice-of-court agreement must still await the first court s determination of its jurisdiction even if the first court s proceedings take a considerable amount of time. 27 The Court of Justice has further in Turner v Grovit (C-159/02) (Turner) held that a so called anti-suit injunction, i.e. a prohibition imposed by a court backed by a penalty restraining a party from commencing or continuing proceedings before a foreign court, undermines the latter court s authority to determine its jurisdiction and is incompatible with the system of the Brussels I regime. 28 The question that arose in West Tankers was whether such an anti-suit injunction could be ordered by a court in one Member State restraining a party from commencing or continuing proceedings before a court in another Member State when the underlying proceedings that the order sought to protect were arbitral proceedings and the court proceedings in the second Member State were ostensibly brought in breach of an arbitration agreement. In other words, did such injunction proceedings fall outside the scope of the Brussels I Regulation based on its arbitration exclusion or could the rulings in Gasser and Turner be extended to prohibit anti-suit injunctions in support of arbitration? The House of Lords in its request for a preliminary ruling argued against such an extension and noted inter alia that owing to the arbitration exclusion there was no need to establish a duty of mutual trust between the courts of the Member States in such a situation. Moreover, the House of Lords argued the prior case law relating the arbitration exclusion 25 Marc Rich & Co AG v Società Italiana Impianti PA (C-190/89) [1991] E.C.R. I-3855; [1991] I.L.Pr. 524 (Marc Rich). In the later case Van Uden BV ( t/a Van Uden Africa Line) v Kommanditgesellschaft in Firma Deco-Line (C-391/95) EU:C:1998:543; [1998] E.C.R. I-7091; [1999] All E.R. (EC) 258 (Van Uden) provisional measures were held to not in principle be ancillary to arbitration proceedings but rather parallel to such proceedings and thus the subject-matter of an application for provisional measures relates to a question falling within the scope of the Brussels I scheme even where the proceedings on the substance have already been commenced and even where those proceedings are to be conducted in arbitration. 26 Brussels Convention art.21 and Brussels I Regulation art.27. Note that the currently applicable Brussels I (recast) Regulation includes a similar general lis pendens rule but now also includes a specific lis pendens rule for situations where there is an exclusive jurisdiction clause in the underlying contract: arts 29 and 31(2) (4). 27 Erich Gasser GmbH v MISAT Srl (C-116/02) (Gasser) [2003] E.C.R. I-14693; [2005] All E.R. (EC) 517 at [42] [49], [67] [69]. Note that owing to the new specific lis pendens rule for situations where there is an exclusive jurisdiction clause in the underlying contract in the recast of the Regulation (see fn.26) the situation that arose in Gasser should not arise today. However, there is nothing to suggest that the ruling of the Court of Justice in Gasser would not be good law today in relation to its reasoning on mutual trust and the fact that the any other court than the court first seised or the court designated in an exclusive prorogation agreement should wait and stay its proceedings under the relevant under the two lis pendens rules until the first court has ruled upon its jurisdiction. 28 Turner v Grovit (C-159/02) [2004] E.C.R. I-3565; [2004] 1 C.L.C. 864 (Turner). See C. Ojiegbe, From West Tankers to Gazprom: Anti-Suit Injunctions, Arbitral Anti-Suit Orders ant the Brussels I Recast (2015) 11 Journal of Private International Law 267, for a brief historic overview of anti-suit injunctions and their underlying ethos.

144 Analysis and Reflections 583 showed that it applies not only to arbitration proceedings as such, but also to legal proceedings the subject-matter of which is arbitration, such as the relevant injunctive proceedings in London. 29 The House of Lords also raised policy arguments noting that the courts of the UK had for many years used anti-suit injunctions as a valuable tool exercising supervisory jurisdiction over arbitration, promoting legal certainty and reducing the possibility of conflicting rulings in arbitration and court. Furthermore, the House of Lords argued that if the practice of anti-suit injunctions would be allowed and adopted by other Member States it would make the EU more competitive vis-à-vis international arbitration centres such as New York, Bermuda and Singapore. 30 The Court of Justice did not find the arguments of the House of Lords persuasive in West Tankers. It held that even if the injunction proceedings fell outside the scope of the Brussels I Regulation, they could nevertheless have consequences that undermined its effectiveness. In addition, for the purposes of considering whether the subject-matter fell within the scope of Regulation one had to consider the court proceedings at which the anti-suit injunction was directed, i.e. the tort claims brought in the second Member State (Italy) and not the injunction proceedings brought in London. 31 Accordingly, the Court of Justice found that use of an anti-suit injunction to prevent a court of a Member State, which normally would have jurisdiction to hear such tort claims under the Regulation, from ruling on the very applicability of the Regulation (including ruling on the arbitration exclusion) amounted to stripping that court of the power to rule on its own jurisdiction. Thus, such an anti-suit injunction also ran counter to the trust which the Member States accord to one another s legal systems and judicial institutions and on which the system of jurisdiction under the Brussels I regime is based. 32 Reverting to Gazprom, the circumstances were different from the circumstances in West Tankers. 33 First, the underlying procedural context was different. In West Tankers the application for the injunction itself was on appeal before the House of Lords, which in essence asked whether it could proceed and issue or uphold such an injunction. In Gazprom the Lithuanian Supreme Court wanted to ascertain the effect of the relevant prohibition order in the context of enforcement proceedings related to enforcement of an arbitration award. Secondly, the procedural act in question and the actor issuing it were different. West Tankers concerned an anti-suit injunction issued by a court in another Member State. In Gazprom the order to refrain from continuing court proceedings was issued by an arbitral tribunal seated in another Member State in the form of an arbitral award. The Lithuanian Supreme Court nevertheless classified the arbitral award as an anti-suit injunction in its request for a preliminary ruling to the Court of Justice. 34 According to the Supreme Court the arbitral award could undermine the effect of the Brussels I Regulation if it was allowed to restrict the Supreme Court s power to determine itself whether it had jurisdiction to hear a case falling within the scope of the Regulation. 35 Thus, the question was whether the ruling West Tankers could be extended to this new context based on the fact that the effect of the Brussels I Regulation was undermined. It is perhaps understandable considering the relevant parties and what was at stake in 29 Gazprom (C-536/13) EU:C:2015:316 at [15] [16]. 30 Gazprom (C-536/13) at [17]. 31 Gazprom (C-536/13) at [22] [26]. 32 Gazprom (C-536/13) at [28] [30]. 33 See also G. Carducci, Notes on the EUCJ s Ruling in Gazprom: West Tankers is Unaffected and Anti-suit Injunctions issued by Arbitral Tribunals are Not Governed by EU Regulation 44/2001 (2015) Arbitration International, p.2, awaiting publication; advance access at [Accessed 9 July 2016], which emphasises the difference in the cases. 34 Gazprom (C-536/13) at [25]. 35 Gazprom (C-536/13) at [31].

145 584 European Law Review the domestic proceedings that the Supreme Court hoped to gain the support of the Court of Justice to block enforcement of the arbitral award. 36 The judgment In rendering its ruling, the Court of Justice first reaffirmed its position in West Tankers and recalled that an injunction issued by a court of a Member State restraining a party from having recourse to or continuing proceedings brought before a court of another Member State, which has jurisdiction under the Brussels I Regulation, is not compatible with the Regulation. Further, the Court of Justice reiterated that in no case is a court of one Member State in a better position to determine whether the court of another Member State has jurisdiction. Finally, the Court of Justice noted that obstructing, by means of an anti-suit injunction, the exercise by a court of another Member State of the powers conferred on it by the Brussels I Regulation runs counter to the principle of mutual trust which the Member States accord to one another s legal systems and judicial institutions. 37 Thereafter, the Court of Justice distinguished Gazprom from West Tankers in three steps. These steps led the Court of Justice to conclude that the matter did not fall within the Brussels I Regulation. First, it referred to the factual context of Gazprom as being that of recognition and enforcement of an arbitral award ordering a party to arbitration proceedings to reduce the scope of the claims formulated in proceedings pending before a court of that Member State. The Court further noted that arbitration does not fall within the scope of the Brussels I Regulation, which is restricted to conflicts of jurisdiction between courts of the Member States. As arbitral tribunals are not courts of a Member State, the Court held that the circumstances in Gazprom do not constitute a conflict of jurisdiction under the Brussels I Regulation. 38 Secondly, the Court of Justice turned to the principle of mutual trust that according to it underpins the jurisdiction system of the Brussels regime. Since the order in Gazprom was made by an arbitral tribunal, it does not constitute an interference of a court of one Member State in the jurisdiction of the court of another Member State. Thus, the Court held that there can be no infringement of the principle of mutual trust under the Regulation. As an additional facet related to the principle of mutual trust, the Court noted that based on the facts in Gazprom, the party is not denied its right to judicial protection because it can contest the recognition and enforcement of the award before the domestic court based on the applicable national procedural law and international law. 39 Thirdly, the Court of Justice noted that failure on the part of Lithuanian State to comply with the arbitral award will not lead to penalties being imposed upon it by a court of another Member State, such as was the case with respect to the anti-suit injunction in West Tankers. Thus, the legal effects of the award were different from those of an anti-suit injunction, which further confirmed that the Brussels I Regulation was not applicable. 40 Therefore, the Court of Justice concluded that the domestic proceedings for enforcement of the arbitral award in Gazprom were covered by the national and international law applicable in Lithuania and not by the Brussels I Regulation. The Court of Justice also explicitly noted that the New York Convention may be the relevant international law and clarified that any potential limitation on the jurisdiction of the Lithuanian courts as a result of the arbitral award would follow from the applicable domestic and international law (i.e. not from the Brussels I Regulation). 41 The ultimate response of the Court of Justice to the Lithuanian Supreme Court was that the Brussels I Regulation does not preclude a court of a Member 36 T. Hartley, Antisuit Injunctions in Support of Arbitration: West Tankers Still Afloat (2015) 64 I.C.L.Q. 965, Gazprom (C-536/13) EU:C:2015:316 at [32]. 38 Gazprom (C-536/13) at [35] [36]. 39 Gazprom (C-536/13) at [37] [39]. 40 Gazprom (C-536/13) at [40] [41]. 41 Gazprom (C-536/13) at [41].

146 Analysis and Reflections 585 State from recognising and enforcing, or from refusing to recognise and enforce, an arbitral award prohibiting a party from bringing certain claims before a court of that Member State, since that Regulation does not govern the recognition and enforcement, in a Member State, of an arbitral award issued by an arbitral tribunal in another Member State. 42 Results and consequences Immediate impact of the judgment The immediate consequence of the judgment of the Court of Justice was that the Lithuanian Supreme Court could not rely on EU law to deal with the presumably politically sensitive issue before it but had to resort to applying relevant domestic and international law. Some commentators expected the Supreme Court to uphold the decision of the Appeal Court and that the award would not be enforced under the rules of the New York Convention. 43 However, international arbitration channels have reported that the Supreme Court decided to recognise the international arbitral award in late October 2015, thus overturning the ruling of the Appeal Court. 44 Specifically, the Supreme Court rejected the arguments that the award should be denied enforcement on the grounds of non-arbitrability or public policy under the New York Convention. However, the Supreme Court held that the award concerned only the claims against the board of Lietuvos dujos AB and that these claims were arbitrable. In addition, the Supreme Court held that the arbitral award was only binding on the parties to the dispute, not on third parties, and does not therefore affect the ability of a court to rule upon its jurisdiction. 45 Counsel to Gazprom has naturally welcomed the decision and is reported to have noted among other things that it represents a favourable approach to arbitration. 46 However, the Lithuanian Ministry of Energy has reportedly lodged a second set of arbitration proceedings in the matter. 47 Thus, at the time of writing it is unknown what will be the ultimate outcome in the disputes. Reverting to the EU level, and the perspective of international arbitration more generally, the ruling of the Court of Justice in Gazprom can be viewed with mixed feelings. What it entails in practice is that awards of arbitration tribunals seated in EU Member States that include orders that prohibit a party from bringing parallel litigation or seek to restrain its actions in respect of such litigation may be in a stronger position in comparison with anti-suit injunctions with a similar purpose issued by courts of a Member State that are prohibited on the basis of West Tankers. What is the impact of such an award in the singular matter will depend on the interpretation by the relevant domestic court of its domestic law as well as binding international law such as the New York Convention. Thus, the ruling did not extend the West Tankers further into the realm of arbitration. In addition, more generally the Court of Justice did not accept 42 Gazprom (C-536/13) EU:C:2015:316 at [44]. 43 J. Burke, International Commercial Arbitration: Allocation of Competence between Municipal Courts and Arbitral Tribunals under Article II(3) of the 1958 NY Convention and Anti-Suit Injunctions under Brussels I (Recast) and Gazprom OAO (2015) Transnational Dispute Management, p.25, awaiting publication; advance access at http: // [Accessed 9 July 2016]. See also P. Ortolani, Anti-Suit Injunctions in Support of Arbitration and the Recast Brussels I Regulation MPI:Lux Working Paper 6 (2015), p.17, available at _WPS_ pdf [Accessed 19 July 2016]. 44 Thomson, Gazprom award recognised in Lithuania (5 November 2015), Global Arbitration Review, /globalarbitrationreview.com/news/article/34305/ [Accessed 9 July 2016]. 45 Thomson, Gazprom award recognised in Lithuania (5 November 2015), Global Arbitration Review, /globalarbitrationreview.com/news/article/34305/ [Accessed 9 July 2016]. 46 Thomson, Gazprom award recognised in Lithuania (5 November 2015), Global Arbitration Review, /globalarbitrationreview.com/news/article/34305/ [Accessed 9 July 2016]. 47 Thomson, Gazprom award recognised in Lithuania (5 November 2015), Global Arbitration Review, /globalarbitrationreview.com/news/article/34305/ [Accessed 9 July 2016].

147 586 European Law Review the premise that any action of any dispute-resolution body potentially having the effect of undermining the Brussels jurisdiction regime would automatically bring the matter within the realm of the Brussels I Regulation. On the contrary, the Court of Justice clearly separated decisions of arbitral tribunals from the intra-court scheme of the Brussels I Regulation. The judgment has in this respect been lauded for its clarity. 48 Thus, taking an arbitration perspective, the Gazprom ruling entails a small victory for arbitration in its prudent exclusion of the effects of the arbitration award from the scope of the Brussels I Regulation. However, the Court of Justice could of course have been even more arbitration friendly. The Opinion of A.G. Wathelet in Gazprom can be read as a strong critique of West Tankers. 49 The Opinion raised a hope for those that supported the policy arguments of the House of Lords mentioned above: namely a hope that the ruling in West Tankers would be reversed by the Court of Justice 50 in other words a hope that also courts would be able to issue anti-suit injunctions in support of arbitration and against parallel litigation in Member State courts in the future. This door seems now to have been firmly shut by the Court of Justice, which did not refer to the Advocate General s Opinion in Gazprom and clearly aimed to reaffirm its key findings in West Tankers. One should, however, be careful not to go too far in one s conclusions of the results in Gazprom. As will be further discussed below, Gazprom was decided under the old Brussels I Regulation not the new Brussels I (recast) Regulation. Some may argue that there is therefore still a need for a further clarifying ruling in the context of the new (recast) Regulation. The Court of Justice also carefully distinguished the arbitral award in Gazprom from an anti-suit injunction, noting that there were no penalties or threat of fines attached to the prohibition order in the award. Whether the position would be the same if arbitral tribunals were to attempt to impose such penalties is also an open issue but the distinction made by the Court of Justice supports an interpretation that it might not be the same. 51 In sum, retaining an arbitration perspective, the ruling is no more than a small victory since it appears to firmly reject court issued anti-suit injunctions in support of arbitration. Broader perspectives As noted above, the old Brussels I Regulation was applicable in Gazprom. Nevertheless, at the time of the matter being referred to the Court of Justice the new Brussels I (recast) Regulation had been negotiated, agreed and published albeit that it was not applicable yet. 52 One of the most debated issues, at least among practitioners, in the process of the reform underlying the recast of the Regulation was the arbitration exclusion. Numerous analyses have been made of the relevant issues during the reform process of its result, Recital 12, and also of how anti-suit injunctions will be dealt with under it. 53 In that context it is perhaps unsurprising that several of the parties before the Court of Justice in Gazprom referred to Recital 48 J. Drake, The Report of the Demise of West Tankers is Greatly Exaggerated, p.4, Chartered Institute of Arbitrators (CIArb) blog, -exaggerated.pdf [Accessed 9 July 2016]. 49 Hartley Antisuit Injunctions in Support of Arbitration (2015) 64 I.C.L.Q. 965, 968 even notes that the Advocate General sought to demolish the judgment of the CJEU in West Tankers. 50 Opinion of A.G. Wathelet in Gazprom (C-536/13) EU:C:2014:2414 at [133] [134]. 51 Hartley Antisuit Injunctions in Support of Arbitration (2015) 64 I.C.L.Q. 965, 975 considers that if arbitrators were to impose such a penalty and if a Member State were to enforce it, that would constitute an anti-suit injunction as understood in West Tankers. 52 Regulation 1215/ In relation to anti-suit injunctions, see e.g. S. Camilleri, Recital 12 of the Recast Regulation: A New Hope? (2013) 62 I.C.L.Q. 899; T. Hartley, The Brussels I Regulation and Arbitration (2014) 63 I.C.L.Q. 857; and Ortolani Anti-Suit Injunctions in Support of Arbitration and the Recast Brussels I Regulation, MPI:Lux Working Paper 6 (2015), p.17. See further for a general overview of the issues M. Illmer, A. Nuyts and J. Fitchen, Scope and Definitions in A. Dickinson and E. Lein (eds), The Brussels I Regulation Recast (Oxford: Oxford University Press, 2015), pp and its selected bibliography, pp

148 Analysis and Reflections What is more surprising is the position that A.G. Wathelet took on Recital 12 in his Opinion. The first conclusion of his Opinion is the same as ruling of the Court of Justice in Gazprom, namely that Brussels I Regulation was not applicable to the Lithuanian proceedings. 55 However, the reasoning by which he reached that conclusion is very different from the reasoning of the Court of Justice. 56 In short, he noted that arbitration was excluded from the Brussels regime and the arbitration exclusion was to be understood and informed by Recital 12 in the Brussels I (recast) Regulation. Even though the (recast) Regulation did not apply to proceedings lodged before January 10, 2015, the Advocate General nevertheless argued that Recital 12 amounts to an explanation of how the arbitration exclusion must be and should have been interpreted entailing a retroactive interpretative law. 57 He thereafter proceeded to analyse Recital 12, and its new provisions, in particular its second and fourth paragraphs. He found that these affect the ruling in West Tankers, meaning apparently that West Tankers was wrongly decided, and that, had it been decided in accordance with Recital 12, the anti-suit injunction have been upheld as not incompatible with the Brussels I Regulation. 58 I find the Advocate General s views on the role of Recital 12 to be contradictory. He appears on the one hand first to say that the Recital is to have only interpretive value (retroactively) and that the arbitration exclusion has not been normatively changed in the (recast) Regulation. On the other hand he subsequently uses the wording new provisions and notes that Recital corresponds to what was the second option outlined in the Commission s Impact Assessment of its legislative proposal for the (recast) Regulation. The first option of the Commission was, in the words of the Advocate General, to maintain the status quo in relation to the arbitration exclusion. The second option was to extend normatively the arbitration exclusion to encompass any court proceedings related to arbitration, including proceedings in which the validity of an arbitration agreement is contested. 59 The Advocate General considers that Recital 12, in particular its second paragraph, corresponds to the second option, and thus interprets it as a normative extension of the arbitration exclusion. 60 This finding of the Advocate General is puzzling and problematic for many reasons. First, it runs counter to the understanding of Recitals in the case law of Court of Justice, according to which Recitals are interpretative tools that can explain the purpose and intent behind a provision. However, they cannot have any autonomous legal effect. 61 Secondly, it does not correspond to the common understanding of the result of the legislative process for the (recast) Regulation according to which the arbitration exclusion was retained unchanged, i.e. the status quo prevailed in this respect, but Recital 12 was added to clarify its interpretation. 62 Thus, the far-reaching nature of the findings of the 54 See Opinion of A.G. Wathelet in Gazprom (C-536/13) EU:C:2014:2414 at [91]. 55 Opinion of A.G. Wathelet in Gazprom (C-536/13) at [141]. 56 The Advocate General also went further than the Court of Justice and in the second leg of his opinion pronounced his opinion on the interpretation of the enforcement provisions in the New York Convention, in particular on its public policy exception. This part of the Advocate General s Opinion would appear to be ultra vires since the Court of Justice has no authority to pronounce upon the interpretation of this Convention being wholly outside the EU legislative framework. 57 Opinion of A.G. Wathelet in Gazprom (C-536/13) at [91]. 58 Opinion of A.G. Wathelet in Gazprom (C-536/13) in particular at [124] [126], [130] [134] and [137] [141]. 59 Opinion of A.G. Wathelet in Gazprom (C-536/13) at [116] [117]. 60 Opinion of A.G. Wathelet in Gazprom (C-536/13) at [125]. 61 See e.g. Casa Fleischhandels-GmbH v Bundesanstalt fur landwirtschaftliche Marktordnung (215/88) [1989] E.C.R. 2789; Criminal Proceedings against Nilsson, Hagelgren and Arrborn (C-162/97) [1998] E.C.R. I-7477; and Criminal Proceedings against Caronna (C-7/11) EU:C:2012: See e.g. Hartley, The Brussels I Regulation and Arbitration (2014) 63 I.C.L.Q. 857, and Ortolani, Anti-Suit Injunctions in Support of Arbitration and the Recast Brussels I Regulation MPI:Lux Working Paper 6 (2015), pp.7 9; and L. Hauberg Wilhelmsen, The Recast Brussels I Regulation and Arbitration: Revisited or Revised? (2014) 30 Arbitration International 169, Note that new art.73(2), which confirms that the Regulation shall not affect the application of the New York Convention, was added in the (recast) Regulation as an additional clarification.

149 588 European Law Review Advocate General is not supported. Furthermore, the attempts of the Advocate General to criticise West Tankers in light of the prior case law of the Court of Justice have also been found questionable. 63 The Court of Justice chose in Gazprom to refer to neither the Opinion of the Advocate General nor Recital 12 of the (recast) Regulation. In addition, the Court of Justice remained in its ruling within the context of the old Brussels I Regulation. However, what the Court of Justice nevertheless did do was to give clear support to West Tankers, cognisant of the Advocate General s Opinion, thus reaffirming its finding that a court in a Member State cannot issue an anti-suit injunction related to proceedings in another Member State court. The reaffirmation in Gazprom strongly suggests that this main ruling in West Tankers is still good law also under the (recast) Regulation. However, the Opinion of Advocate General is likely to be used in the future as support in the argumentation of parties wanting to test the limits of the interpretation of Recital 12, namely anti-suit injunctions issued by courts in support of arbitration. Therefore, we may in the future come to see further case law from the Court of Justice specifically addressing the point under the (recast) Regulation. In addition, the broader issue raised by the Opinion of the Advocate General is how Recital 12 is to be interpreted more generally (not specifically in the context of anti-suit injunctions). In particular, the underlying issue raised by Gazprom, albeit in an indirect manner, is the relationship between the arbitration exclusion as well as court proceedings and judgments on the validity of an arbitration clause. 64 This is an important matter, and Recital 12 has clarified some aspects of the issue. In the context of this case analysis there is only room to note that the Advocate General arguably went too far in his interpretation of Recital 12. As noted above, the Recital should not be interpreted as extending the arbitration exclusion to encompass any proceedings in which the validity of an arbitration agreement is contested. In particular, it would appear wrong to say that such proceedings cannot be subject to the jurisdiction rules in the Regulation. 65 However, the Court of Justice has yet to rule on Recital 12 and therefore the precise contours of its interpretation in the varied complex situations that may arise remain to be determined. Finally, it is notable that the Court of Justice finds now explicitly that it is a general principle that follows from its prior case law that every Member State court determines itself under the applicable rules of the Brussels regime whether it has jurisdiction. 66 In addition, obstructing the aforementioned principle is a breach of another principle, that of mutual trust. Thus, in the emphasis on and explicit mention of these two matters as principles, one can see an evolution in the narrative of the Court of Justice. This is important not only on the narrative level, since the elevation to principles strengthens the dicta and gives them general importance, even as sources of EU law. This evolution can be seen to follow a broader development in AFSJ to emphasise mutual trust as a principle. 67 However, this development is not without challenges and there is an ongoing debate on the feasibility and legitimacy of mutual trust in the AFSJ Hartley, The Brussels I Regulation and Arbitration (2014) 63 I.C.L.Q. 857, See e.g. Hauberg Wilhelmsen, The Recast Brussels I Regulation and Arbitration: Revisited or Revised? (2014) 30 Arbitration International 169, for an analysis of focusing on the Brussels I (recast) Regulation on this aspect. 65 Hartley, The Brussels I Regulation and Arbitration (2014) 63 I.C.L.Q. 857, Hartley, The Brussels I Regulation and Arbitration (2014) 63 I.C.L.Q. 857, K. Lenaerts, The Principle of Mutual Recognition in the Area of Freedom, Security and Justice, Fourth Annual Sir Jeremy Lever Lecture, All Souls College, University of Oxford (30 January 2015), specifically pp.4 8, /1exagu1grkmq3k572418odoooym.wpengine.netdna-cdn.com/wp-content/uploads/2015/02/The-Principle-of-Mutual -Recognition-in-the-area-of-Freedom-Security-and-Justice.pdf [Accessed 9 July 2015]. 68 V. Mitsilegas, The Limits of Mutual Trust in Europe s Area of Freedom, Security and Justice: From Automatic Inter-State Cooperation to the Slow Emergence of the Individual (2012) 31 Y.E.L See also E. Brouwer and D. Gerard (eds), Mapping Mutual Trust Understanding and Informing the Role of Mutual Trust in EU Law, EUI Working Paper MWP (2016).

150 Analysis and Reflections 589 In the civil justice field this debate has only started and we may come to see more focus on harmonisation, creating minimum standards or supporting measures in the future. 69 These latter broader issues and debates are not likely to impact directly on the ruling in Gazprom but may come to influence the application of the interface between arbitration and EU civil justice, between the Member States justice systems, and between the Member States and the EU in relation to civil justice. As one commentator has noted in the context of the first of these interfaces, arbitration and the Brussels regime, the policy of the Court of Justice appears to be to try to maintain a reasonable balance. 70 This appears to be sound advice also for future navigation of the broader issues. 69 E. Storskrubb, Mutual Recognition as a Governance Strategy for Civil Justice in EU Civil Justice (2016), p.299 at pp Hartley, The Brussels I Regulation and Arbitration (2014) 63 I.C.L.Q. 857, 975.

151 590 European Law Review The Behaviour of the Average Consumer: A Little Less Normativity and a Little More Reality in the Court s Case Law? Reflections on Teekanne Hanna Schebesta * Wageningen University Kai Purnhagen ** Wageningen University Consumer protection; EU law; Ingredients; Labelling; Misleading advertising Abstract In Teekanne, the Court of Justice held that the labelling of foodstuffs may not give the impression that an ingredient is present in a product where it is in fact not present, and this is apparent solely from the list of ingredients on the packaging. The judgment marks a significant realignment of previous cases that had considered the behaviour of consumers regarding the list of ingredients. In prior case law the Court had found consumers to be adequately protected if they had the possibility to gather the relevant information from the list of ingredients. In Teekanne, the Court stipulated that such information on the ingredients list is not able to correct a consumer s erroneous or misleading impression created by the overall labelling taken as a whole. The ruling is potentially the first case in a series of judgments that understands the average consumer in a less normative way, and is open to arguments about the real-world vulnerability levels of consumers. Introduction In its judgment in Teekanne, 1 the Court of Justice of the EU held that the labelling of foodstuffs may not give the impression that an ingredient is present in a product where it is in fact not present, and this is apparent solely from the list of ingredients on the packaging. Owing to the date of the dispute, the Court interpreted Directive 2000/13 on labelling, presentation and advertising of foodstuffs (the Labelling Directive). The latter was repealed by Regulation 1169/2011 on the provision of food information, which took effect from 13 December 2014 (the Food Information Regulation FIR). While the preliminary question arose with regard to the Labelling Directive, the judgment retains relevance for the corresponding provisions of the Food Information Regulation. Additionally, it gives guidance on the interpretation of the average consumer test in other areas of internal market law. The question at issue was whether a consumer could be misled by the labelling about the ingredients in a product, despite the fact that the list of ingredients was accurate. First, the Court had to weigh the * Assistant Professor, Law and Governance Group; Research Associate, Department of Law, European University Institute (Florence). ** Assistant Professor, Law and Governance Group; Distinguished International Visitor, Rotterdam Institute of Law and Economics, Erasmus University of Rotterdam Law. 1 Bundesverband der Verbraucherzentralen und Verbraucherverbände - Verbraucherzentrale Bundesverband ev v Teekanne GmbH & Co KG (C-195/14) EU:C:2015:361; [2016] C.E.C. 214.

152 Analysis and Reflections 591 legal value of compliance with the requirements for the list of ingredients against the more general prohibition to mislead consumers. Secondly, the reference raised the issue of what kinds of labelling may mislead consumers, and therefore how the average consumer is defined. The judgment provides a straightforward answer that will be noted by the stakeholders with interest as it challenges some currently widely held assumptions: an accurate and comprehensive list of ingredients is necessary, but of itself not sufficient, to preclude that consumers are misled through other labelling elements. Teekanne may well be the first one in a series of judgments that understands the average consumer in a less normative way, and opens up to arguments about the real-world vulnerability levels of consumers. 2 However, by doing so, the present case risks providing too little guidance as to what packaging, in fact, misleads consumers with respect to the ingredients contained. Factual and legal background The German company Teekanne produced a fruit tea, Felix Himbeer-Vanille Abenteuer (Felix raspberry and vanilla adventure), the packaging of which included (1) depictions of inter alia raspberries and vanilla flowers; (2) indications stating fruit tea with natural flavourings ; and (3) a seal with the indication only natural ingredients inside a golden circle. However, the fruit tea did not in fact contain any vanilla or raspberry constituents or flavourings. The list of ingredients accurately stated that the fruit tea contained flavouring with a taste of vanilla, and aromas with a taste of raspberry. The German Federal Union of Consumer Organisations and Associations brought an action against Teekanne, arguing that the items on the fruit tea packaging misled the consumer with regard to the content because the consumer would expect vanilla/raspberry ingredients or at least natural flavouring. The Regional Court Düsseldorf upheld this action, 3 while the Higher Regional Court dismissed it, 4 ruling that consumers were not misled. The latter reiterated the view of the Commission, which regarded consumers not to be misled under such circumstances. 5 It based this interpretation on the expectations of the average consumer, finding that the list of ingredients expresses in a manner free from doubt that the flavouring only tastes like vanilla and raspberries but does not actually derive from natural produce. The general argument was that correct and complete information provided on the list of ingredients would suffice to ensure that the consumers are not misled. The Consumer Organisations appealed to the Federal Supreme Court, which stayed the proceedings and referred the following questions to the Court 6 : Is it permissible for the labelling, presentation and advertising of foodstuffs to give the impression, by means of their appearance, description or pictorial representation, that a particular ingredient is present, even though that ingredient is not in fact present and this is apparent solely from the list of ingredients provided for under Article 3(1)(2) of Directive 2000/13/EC? Judgment of the Court of Justice The Court answered the question in the negative: the packaging may not give the impression that a product contains an ingredient that it does not in fact contain, although this is apparent from the list of ingredients. In other words, an accurate list of ingredients does not preclude other elements of labelling from being misleading with respect to the ingredients a product actually contains. 2 See for an assessment with a view on the Unfair Commercial Practices Directive, B. Duivenvoorde, The Consumer Benchmarks in the Unfair Commercial Practices Directive (New York et al.: Springer, 2015). 3 LG Düsseldorf, BeckRS 2012, OLG Düsseldorf, GRUR-RR 2013, See the decision of the BGH, which refers to this view of the Commission: BGH [2014] G.R.U.R. Int See BGH [2014] G.R.U.R. Int. 599.

153 592 European Law Review The Court argued as follows: it first pursued a teleological reasoning, stating that the main purpose of the directive was to inform and protect the consumer, in particular giving the exact nature and characteristics of the goods, therefore having to enable the consumer to make his choice in full knowledge of the facts. 7 This objective was enshrined in art.2(1)(a)(i) of the Labelling Directive, which stated that the labelling must not mislead the purchaser, particularly as to the characteristics of the foodstuff and, in particular, as to its nature, identity, properties, composition, quantity, durability, origin or provenance, method of manufacture or production. The provision is now included with a slightly different wording in art.7 FIR. In Teekanne, the Court reaffirmed the consumers right to have at their disposal correct, neutral and objective information, which had been established in Commission v Italy. 8 After noting that the Labelling Directive is the more specific law, the Court reinforced its reasoning by referring to art.16 of the horizontal Regulation 178/2002 (General Food Law), 9 which provides that labelling, advertising and presentation of food may not be misleading. The Court continued by pointing out the jurisdictional division between the national referring courts and itself, in particular that it is not for the Court to rule on the labelling of specific products and sales descriptions. However, it did provide guidance to the national court, which must take account of, the presumed expectations, in light of that labelling, which an average consumer who is reasonably well informed, and reasonably observant and circumspect has, as to the origin, provenance, and quality associated with the foodstuff, the critical point being that the consumer must not be misled and must not be induced to believe, incorrectly, that the product has an origin, provenance or quality which are other than genuine. 10 This had already been held in Severi. 11 The Court then referred to Darbo and Commission v Germany, stating that consumers interested in the composition of a product are expected to first read the list of ingredients. However, and this is the heart of the judgment, the Court then held that the fact that the list of ingredients is displayed correctly does not in itself preclude the possibility that the labelling of those goods and methods used for it may be such as to mislead the purchaser. 12 Labelling comprises, any words, particulars, trademarks, brand name, pictorial matter or symbol relating to a foodstuff and placed on its packaging. Some of those items may in practice be misleading, erroneous, ambiguous, contradictory or incomprehensible. 13 In such cases the list of ingredients may be insufficient to correct a consumer s erroneous or misleading impression. 14 Therefore it is the impression of the overall labelling taken as a whole 15 which must be taken into account when ascertaining whether packing is misleading, in particular the words and depictions 7 Teekanne (C-195/14) EU:C:2015:361 at [30]. 8 Commission v Italy (C-47/09) [2010] E.C.R. I-12083; [2011] E.T.M.R Regulation 178/2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety [2002] OJ L31/1. 10 Teekanne (C-195/14) at [36]. 11 See, to that effect, judgment in Severi v Regione Emilia Romagna (C-446/07) [2009] E.C.R. I-8041; [2009] E.T.M.R. 64 at [61] and the case law cited. 12 Teekanne (C-195/14) at [38]. 13 Teekanne (C-195/14) at [40] (emphasis added). 14 Teekanne (C-195/14) at [40]. 15 Teekanne (C-195/14) at [41].

154 Analysis and Reflections 593 used as well as the location, size, colour, font, language, syntax and punctuation of the various elements on the fruit tea s packaging. 16 This examination is for the national court to carry out. 17 The case in the context of earlier jurisprudence cautious progress towards a more holistic approach to labelling and a more realistic notion of average consumer The preliminary question and outcome are straightforward, reflected in the fact that no Advocate General s Opinion was rendered. However, the smooth argumentation of the ruling conceals the extent to which the judgment pushes forward the interpretations rendered in prior case law. The Court approached the legal question exclusively through the lens of secondary legislation, and did not enter into a fundamental, Treaty-based discussion of the internal market dimension. In doing so, it took a consumer-based perspective without examining the business interests. 18 The consumer interest is discussed by means of the average consumer benchmark, as determined by the Court in order to cope with the regulatory challenges in the multi-level internal market. Embarking from the Mars case, where the Court had already mentioned the reasonably circumspect consumer benchmark as an aside, 19 the Court clarified in Gut Springenheide that such a consumer would be reasonably well informed and reasonably observant and circumspect. 20 EU legislation in the field of unfair commercial practices, which nowadays reaches beyond the field of the Unfair Commercial Practices Directive and comprises, e.g., specific information law such as the one at issue here, needed to be designed to protect such a normative average consumer. Teekanne marks a significant realignment of prior cases that had considered the behaviour of consumer specifically regarding the list of ingredients. It was a common assumption that in determining the question of misleading measures, consumers were expected to have read the list of ingredients. The average consumer was quasi-obliged to read the list of ingredients in order to avoid the danger of being misled. 21 Consequently, a correct list of ingredients was presumed to shield all labelling from claims of being misleading in terms of ingredients. Such view was reasonable, given older jurisprudence. For example, in Commission v Germany, the Court had quite clearly stated that, for consumers who are heedful of the composition of a product, sufficient information is available by way of the list of ingredients which must appear on the labelling. 22 The case concerned the labelling of sauce béarnaise/hollandaise made with vegetable fats and E 160 F. In the same dispute, the European Commission had submitted that, in determining whether consumers need protection, the assumption must be that consumers are attentive and aware of the contents of the list of ingredients displayed on foodstuffs which they buy. 23 The Advocate General agreed with this view, indicating that in his opinion, consumers will first view the list of ingredients: 16 Teekanne (C-195/14) at [43]. 17 Teekanne (C-195/14) at [42]. 18 In secondary legislation and Court decisions in field of consumer law, it is usually the consumer interest that trumps ; see H. Schebesta, Does the National Court Know European Law? A Note on Ex Officio Application after Asturcom (2010) 18 European Review of Private Law 847; H. Unberath and A. Johnston, The Double-headed Approach of the ECJ concerning Consumer Protection (2007) 44 C.M.L. Rev Verein gegen Unwesen in Handel und Gewerbe Köln ev v Mars GmbH (C-470/93) [1995] E.C.R. I-1923; [1995] 3 C.M.L.R. 1 at [24]. 20 Gut Springenheide GmbH v Oberkreisdirektor des Kreises Steinfurt - Amt für Lebensmittelüberwachung (C-210/96) [1998] E.C.R. I-4657; [1999] 1 C.M.L.R at [31]. 21 M. Hagenmeyer, Food Information Regulation (Berlin: Lexxion, 2012), p Commission v Germany (C-51/94) [1995] E.C.R. I-3599 at [36]. 23 Opinion of A.G. Jacobs in Commission v Germany (C-51/94) E.C.R. I-3599 at [17].

155 594 European Law Review If a consumer is sufficiently sensitive to the composition of the foodstuffs in question as to feel confused or misled on discovering that vegetable fats or E 160 F were present, then such a consumer would read the list of ingredients. 24 The view promulgated in Commission v Germany had been confirmed by the Court in the Darbo judgment rendered in 2000, which concerned the labelling as naturally pure to describe a strawberry jam which contains the gelling agent pectin and traces or residues of lead, cadmium and pesticides. Here, the Court ruled that, consumers whose purchasing decisions depend on the composition of the products in question will first read the list of ingredients, the display of which is required by Article 6 of the Directive. In those circumstances, an average consumer who is reasonably well informed and reasonably observant and circumspect could not be misled by the term naturally pure used on the label simply because the jam contains pectin gelling agent. 25 Information requirements often are the favoured solution in internal market law, for example in the famous Cassis de Dijon judgment. 26 The information paradigm required entrepreneurs to provide all information available to consumers while consumers had to bear the burden of processing this information on potentially hazardous products and services. 27 The underlying consumer model in unfair commercial practices law was (and still primarily is) a normative concept for the sake first and foremost of internal market integration, largely uninspired by the behaviour of real world consumers. The Court in Teekanne developed this approach further. Although acknowledging the older case law and accepting the assumption that consumers read the list of ingredients, the Court considered that a list of ingredients is not always sufficient in order to correct other elements of the labelling which triggered an erroneous or misleading impression with the consumer in the first place. 28 The judgment marks two shifts: the first is the product appreciation by the Court and referring court. Both courts handled a holistic description of the product labelling for ingredients instead of a narrow view that would consider the list of ingredients only. In the particular case, the Court described the product in question with respect to depictions, indications and seals which means that a number of packaging elements were taken into account at the same time. Labelling was described as a composition of different elements, namely words, particulars, trade marks, brand name, pictorial matter or symbol relating to a foodstuff and placed on its packaging (art.1(3)(a)). 29 This marks a shift from text to overall consumer perception. In this, the judgment follows developments in other areas such as trade mark law and responds to the general criticism that traditional legal scholarship pays little attention to non-textual information. 30 The second element is the question of who the average consumer is, and what constituted (in this case) labelling liable to mislead consumers, specifically what courts may expect from the average consumer s behaviour. 31 Which kinds of labelling give the consumer an erroneous or misleading impression of the ingredients, and is the list of ingredients capable of correcting false impressions generated? The Court 24 Opinion of A.G. Jacobs in Commission v Germany (C-51/94) E.C.R. I-3599 at [39]. 25 Zentrale zur Bekampfung unlauteren Wettbewerbs ev v Adolf Darbo (C-366/08) [2009] E.C.R. I-8439 at [22]. 26 See REWE v Monopolverwaltung für Branntwein (Cassis de Dijon) (120/78) [1979] E.C.R. 649; [1979] 3 C.M.L.R On the information paradigm in this judgment, see Purnhagen, The Virtue of Cassis de Dijon 25 Years Later in Varieties of European Economic Law and Regulation (2015), pp E. Steindorff, EG-Vertrag und Privatrecht (Baden-Baden: Nomos, 1996), p Teekanne (C-195/14) EU:C:2015:361 at [40]. 29 See Teekanne (C-195/14) EU:C:2015:361 at [39]. 30 E. Porter, Taking Images Seriously (2014) 114 Columbia Law Review 1687, See, for the particularities on food law in this respect, K. Purnhagen, Beyond Threats to Health: May Consumers Interests in Safety Trump Fundamental Freedoms in Information on Foodstuffs? Reflections on Berger v Freistaat Bayern (2013) 38 E.L. Rev. 711,

156 Analysis and Reflections 595 greatly alleviated the information processing presumptions that had burdened the average consumer, thus providing a necessary update to the concept in older jurisprudence. This outcome reflects and sits more easily with contemporary consumer policy-making, which is increasingly influenced by behavioural sciences. 32 The case in light of behavioural science progress towards a more holistic approach to labelling and a more realistic notion of average consumer Both developments (from textual to holistic labelling and the move away from a purely normative understanding of the average consumer when determining consumer s perception of the list of ingredients) are results that conform to insights from consumer behaviour in behavioural studies, in particular consumer decision-making. In recent years, behavioural sciences advanced massively and adopted remarkably robust methods 33 to determine how and why consumers decide in competitive choice settings. These insights from behavioural sciences on consumer decisions can be extrapolated to understand better how consumers are misled in the real world when exposed to unfair commercial practices. 34 With regard to a more holistic approach to labelling, behavioural studies show that consumers attention to labels during shopping is limited. 35 Complex information such as those on a list of ingredients will bypass most consumers. Instead, consumers tend to pay attention to visual elements and colours as they allow for rapid and automatic processing (so-called system 1 processing), whereas textual information generally requires more deliberate processing (so-called system 2 processing). 36 Visual elements are also highly context sensitive, 37 meaning that the attribution of meaning derives in part from other elements of the packaging. Similarly, different pictures have been shown to decisively affect consumer perceptions 32 World Bank, World Development Report 2015: Mind, Society, and Behavior, /publication/wdr2015 [Accessed 9 July 2016]; Commission, Better regulation for better results An EU agenda COM(2015) 215 final; H. Luth, Behavioural Economics in Consumer Policy (Antwerp et al.: Intersentia, 2010); H. Micklitz and K. Purnhagen, Vorbem. 13, 14 in Münchener Kommentar BGB (Munich: C.H. Beck, 2015), para.51; E. Tscherner, Can Behavioral Research advance Mandatory Law, Information Duties, Standard Terms and Withdrawal Rights? (2014) 1 Austrian Law Journal See, on the need for robust methodology in assessment of laws, P. Hacker, The Behavioral Divide: A Critique of the Differential Implementation of Behavioral Law and Economics in the US and the EU, European Review of Contract Law (forthcoming); K. Purnhagen and P. Feindt, Better Regulatory Impact Assessment: Making Behavioural Insights Work for the Commission s New Better Regulation Strategy (2015) 6 European Journal of Risk Regulation C. Poncibò and R. Incardona, The Average Consumer, the Unfair Commercial Practices Directive, and the Cognitive Revolution (2007) 30 Journal of Consumer Policy 21; A.-L. Sibony, Can EU Consumer Law Benefit From Behavioural Insights?: An Analysis of the Unfair Practices Directive in K. Mathis (ed.), Behavioural Law and Economics: American and European Perspectives (New York et al.: Springer, 2015), p.71; J. Trzaskowki, Behavioural Economics, Neuroscience, and the Unfair Commercial Practices Directive (2011) 34 Journal of Consumer Policy For example unobtrusively observed shopping studies: see K. Grunert, and J. Wills, A Review of European Research on Consumer Response to Nutrition Information at Food Labels (2007) 15 Journal of Public Health See, for the context of health claims, K. Purnhagen, E. van Herpen and E. van Kleef, The Potential Use of Visual Packaging Elements as Nudges an Analysis on the Example of the EU Health Claims Regime in K. Mathis and A. Tor (eds), Nudging: Possibilities, Limitations and Applications in European Law and Economics (New York et al.: Springer, 2016), p.197, preliminary publication as Wageningen Working Papers in Law and Governance 5/ L. Scott, Images in Advertising: The Need for a Theory of Visual Rhetoric (1994) 21 Journal of Consumer Research 252.

157 596 European Law Review on an identical textual claim. 38 Behavioural sciences therefore strongly support the Court s holistic approach to labelling. Marketing practices, taking into account the insights of behavioural sciences, are based on the assumption that one can use the effect of slow processing textual and fast processing of pictorial information to communicate subtle and complex messages via pictures and colours. 39 In the present case, Teekanne made use of this effect by communicating the message this tea contains raspberry and vanilla by pictures. As the consumer s main attention is often on pictures and colours during their limited shopping time, these have the potential to serve as what behavioural scientists call anchors. Cognitive psychology has shown that people often rely excessively on their initial point of reference (the anchor ), so that estimates and projections are biased towards this initial value ( the anchoring effect ). 40 Extrapolating these findings to the case, one may conclude that pictures first anchor the consumer s perception of the product, which then determines consumer s decision to buy the product. Additionally, the picture-superiority effect 41 finds that visual elements vastly outperform textual elements in influencing consumer decision-making. Intuitively or implicitly, the Court seemed to rely on both of these effects when holding in [40] of its judgment that consumer s erroneous or misleading impression resulting from the pictures on the pack (anchor) may not be sufficiently corrected by the correct list of ingredients (picture-superiority effect). The Court has hence, wittingly or unwittingly, reflected insights from behavioural sciences to decide on the benchmark of the average consumer. What is the guidance deriving from the judgment? National versus European dimension Although the wording of the judgment carries an undertone that in the concrete case at hand the product labelling might have been misleading, the Court defers, in line with past case law, 42 the ultimate application to the national court. This means that the application of the average consumer test in the concrete case remains at national level. 43 In this sense, the judgment does not strengthen the EU basis of the interpretation of the average consumer very much. This has pros and cons: on one hand, uniform interpretation and application are intertwined. This ambiguity could threaten the uniform interpretation of what constitutes the average consumer, which might, consequently, become fragmented across the EU. Ultimately, producers may be faced with 28 different national applications of whether depictions on a product of something that is not per se present in a food product are permissible. On the other hand, the EU preliminary reference mechanism is limited and the EU system of decentralised application does not lend itself well to answering many small technical questions, which are the kind of questions likely to arise and, owing 38 H. Sørensen, J. Clement and G. Gabrielsen, Food Labels an Exploratory Study into Label Information and what Consumers See and Understand (2012) 22 International Review of Retail, Distribution and Consumer Research L. Scott and P. Vargas Writing with Pictures: Toward a Unifying Theory of Consumer Response to Images (2007) 34 Journal of Consumer Research See A. Tversky and D. Kahneman, Judgment under Uncertainty: Heuristics and Biases (1974) 185 Science 1124; R. Thaler and C. Sunstein, Nudge: Improving Decisions about Health, Wealth, and Happiness (New Haven, CT: Yale University Press, 2008). 41 See T. Childers and M. Houston, Conditions for a Picture-superiority Effect on Consumer Memory (1984) 11 Journal of Consumer Research 643; G. Stenberg, K. Radeborg and L. Hedman. The Picture Superiority Effect in a Cross-modality Recognition Task (1995) 23 Memory & Cognition 425; W. Hockley, The Picture Superiority Effect in Associative Recognition (2008) 36 Memory & Cognition See for an overview J. Stuyck, The Court of Justice and the Unfair Commercial Practices Directive (2015) 52 C.M.L. Rev H. Micklitz, Unfair Commercial Practices and Misleading Advertising in N. Reich, P. Rott, K. Tonner, European Consumer Law, 2nd edn (Cambridge: Intersentia, 2014) p.98.

158 Analysis and Reflections 597 to their generalisability, would also call for a common European solution. This limitation is inherent in the current judicial system of the EU. Secondly, the specific application sought concerned the average consumer. There may be some arguments in favour of a decentralised understanding of what may mislead a particular national consumer. A decentralised average consumer in this sense may further the diversity in the unity and accommodate differences between national consumer cultures. The behavioural dimension in courts With respect to product packaging, the notion of the average consumer opens the door to a number of legal questions where courts could potentially deploy behavioural sciences. For example, the Teekanne tea-package contained many pictures, and the design was clearly geared towards a specific target group, namely children. The trade mark and the font of the label were written in childlike handwriting, the product name was Felix (a known children s book character) accompanied by a picture of Felix the Rabbit on a skateboard. 44 In fact, the comic character was more prominently placed than the raspberry and vanilla depictions, in an area of the packaging with the most potential to attract consumers attention. This could have further legal implications. Children as a special, more vulnerable, target group are less likely to (be able to) read and understand a list of ingredients. Further, prima facie they seem more likely to attribute to pictures of ingredients on a package the meaning that a product in fact contains the depicted ingredients. This effect is reinforced by their lack of knowledge on complex food production processes involving flavourings. For example, art.5(3) of the general Unfair Commercial Practices Directive distinguishes different groups of consumers: Commercial practices which are likely to materially distort the economic behaviour only of a clearly identifiable group of consumers who are particularly vulnerable to the practice or the underlying product because of their mental or physical infirmity, age or credulity in a way which the trader could reasonably be expected to foresee, shall be assessed from the perspective of the average member of that group. Perhaps, then, also in labelling the misleading potential of a package could be determined by reference to a different standard of the target group consumer in food law. Conclusion The judgment is a clear message that an accurate list of ingredients does not exonerate products from claims of being misleading. This means that all product packaging now has to be reassessed from this perspective, which is why the judgment is one that should and will be noted by industry. An intuitive evaluation of the package, and certainly one based on behavioural studies, would have come to the same result. What stood in the way was the assumption, based on a set of older cases, that consumers have to rely on the accuracy of the information in the list of ingredients. Teekanne developed the prior jurisprudence, aligning it with scientific findings on actual consumer behaviour, finding that despite correct textual information, the consumer can still be misled. The case further points to the necessity and potential of behavioural studies when addressing consumer behaviour. However, while the outcome of the judgment paralleled behavioural insights, it is not an explicit endorsement thereof. An essential difficulty here lies in the nature of proceedings in the Court. Rulings are made without additional expert reports and investigation, relying mainly on party submissions. Procedurally, it may be difficult for the Court to gather behavioural insights. On the other hand, an outcome 44 See BGH [2014] G.R.U.R. Int. 599.

159 598 European Law Review justification that lacks an articulated empirical basis on actual consumer behaviour may strike as arbitrary for want of convincing legal arguments to characterise the behaviour of average consumers.

160 Analysis and Reflections 599 Preliminary References to the Court of Justice of the EU and the Right to a Fair Trial under Article 6 ECHR Professor Morten Broberg Copenhagen University Professor Niels Fenger Copenhagen University European Court of Human Rights; Reasons; References to European Court; Right to fair trial Abstract According to art.267 of the Treaty on the Functioning of the European Union (TFEU), the courts of the Member States may and sometimes must refer questions about the validity and interpretation of EU law to the Court of Justice of the EU so that it can make a binding ruling. This article reviews the practice of the European Court of Human Rights (ECtHR) on the demands that art.6 of the European Convention on Human Rights (ECHR), on the right to a fair trial, make on Member States courts when considering making a reference to the Court of Justice for a preliminary ruling. Among other things, it is pointed out that the ECtHR practice on the requirement to give reasons for not making a reference appears to go further than several of the rulings given by Member States courts. Introduction In recent years in several cases the European Court of Human Rights (ECtHR) has had the opportunity to determine what requirements art.6 of the European Convention on Human Rights (ECHR), on the right to a fair trial, makes on national courts that must decide whether or not to accept a request to make a reference to the Court of Justice of the European Union for a preliminary ruling. The question has been whether a national court may breach art.6 ECHR if it refuses to make a preliminary reference, and if so when such a breach materialises. Article 6 ECHR only applies to criminal proceedings (in a broad sense) and cases concerning civil rights and obligations. This means that the provision does not apply to all aspects of EU law. However, art.47 of the Charter of Fundamental Rights of the European Union contains a provision on a right to a fair trial, which effectively reproduces art.6 ECHR but with effect for all EU law. Since art.47 of the Charter must be interpreted in accordance with art.6 ECHR, it must be assumed that if there is an obligation to give reasons under art.6 ECHR this obligation applies to all EU law. In this article we give an account of ECtHR case law and assess the consequences of this case law for the national courts handling of requests to make references to the Court of Justice for preliminary rulings. An obligation to make a reference pursuant to Article 6 ECHR? Whether a decision of a national court not to refer a question for a preliminary ruling can constitute a breach of art.6 ECHR has been raised in several cases. This applies to both references by national courts to the Court of Justice pursuant to art.267 TFEU and to the judicial systems in some Member States where

161 600 European Law Review lower courts can (or shall) refer certain questions to another national court, for example where a lower court is not competent to decide a question of constitutional law and is required to refer such questions to a national constitutional court. In the Coëme case the ECtHR decided whether the Belgian Cour de cassation had breached art.6 ECHR by rejecting a request to make a reference to the Belgian Cour d arbitrage on certain matters that were relevant to the main case. The ECtHR stated that the ECHR did not as such, guarantee any right to have a case referred by a domestic court to another national or international authority for a preliminary ruling. This was so, even where a particular field of law may be interpreted only by a court designated by statute and where the legislation concerned requires other courts to refer to that court, without reservation, all questions relating to that field. 1 The comments of the ECtHR in the Coëme case have subsequently been carried over to the question of a national court s refusal to make a reference to the Court of Justice for a preliminary ruling. On several occasions the ECtHR has stated that the ECHR does not guarantee a right to have a case referred to the Court of Justice to obtain a preliminary ruling pursuant to art.267 TFEU. 2 This seems to be in harmony with the statement of the Court of Justice that the preliminary ruling procedure, establishes direct cooperation between the Court and the courts and tribunals of the Member States by way of a non-contentious procedure excluding any initiative of the parties. 3 The Court of Justice has also stated, that Article 267 TFEU does not constitute a right of action available to the parties to a case pending before a national court; thus, the mere fact that a party contends that the dispute gives rise to a question concerning the interpretation of Union law does not compel the court concerned to consider that a question has been raised within the meaning of Article 267 TFEU. Accordingly, the fact that the interpretation of a Union act is contested before a national court is not in itself sufficient to warrant referral of a question to the Court for a preliminary ruling. 4 Obligation to give reasons pursuant to Article 6 ECHR In the Coëme case the ECtHR added that, it is not completely impossible that, in certain circumstances, refusal [to make a preliminary reference] by a domestic court trying a case at final instance might infringe the principle of fair trial, as set forth in Article 6 1 of the Convention, in particular where such refusal appears arbitrary. 5 The ECtHR has considerably clarified this rather vague statement in subsequent cases. It is now clear that a decision not to refer a question for a preliminary ruling can constitute a breach of art.6 ECHR if the 1 Coëme v Belgium ECHR 2000-VII at [114]. 2 See e.g. John v Germany (2007) 45 E.H.R.R. SE4. 3 Slob v Productschap Zuivel (C-496/04) [2006] E.C.R. I-8257 at [34]. 4 Talasca v Stadt Kevelaer (C-19/14) EU:C:2014:2049, order at [22]. See also Adiamix v Direction départementale des finances publiques de l Orne (C-368/12) EU:C:2013:257, order at [17]; Mlamali v Caisse d allocations familiales des Bouches-du-Rhône (C-257/13) EU:C:2013:763, order at [23]; R. (on the application of International Air Transport Association (IATA)) v Department of Transport (C-344/04) [2006] E.C.R. I-403; [2006] 2 C.M.L.R. 20 at [28]; and Diageo Brands BV v Simiramida-04 EOOD (C-681/13) EU:C:2015:471; [2016] Ch. 147 at [59]. 5 Coëme ECHR 2000-VII at [114]. See also the two unpublished decisions which the ECtHR refers to at [114] of its Coëme judgment: Wynen and Centre Hospitalier Interrégional Edith-Cavell v Belgium ECHR 2002-VIII at [41] [43]; and Ernst v Belgium (2004) 39 E.H.R.R. [74] [76].

162 Analysis and Reflections 601 national court does not explain why it declines to make a reference, so the decision may appear arbitrary. Thus, in the case of Canela Santiago v Spain in 2001, the ECtHR ruled that the decision of the Spanish Tribunal Supremos (Supreme Court) not to make a reference to the Court of Justice did not breach art.6 ECHR as the Tribunal Supremos had exhaustively reviewed the Court of Justice s case law on the obligation to make a reference and had found that it could make the decision itself without making a reference. The decision was thus not arbitrary. 6 In the Ullens de Schooten & Rezabek ruling from 2011, the ECtHR held that where, exceptionally, a court decides not to make a reference for a preliminary ruling, there is an obligation to give reasons for such a decision: In the specific context of the third paragraph of Article 234 of the Treaty establishing the European Community (Article 267 of the Treaty on the Functioning of the European Union), this means that national courts against whose decisions there is no remedy under national law, which refuse to refer to the Court of Justice a preliminary question on the interpretation of Community law that has been raised before them, are obliged to give reasons for their refusal in the light of the exceptions provided for in the case-law of the Court of Justice. They will thus be required, in accordance with the above-mentioned Cilfit case-law, to indicate the reasons why they have found that the question is irrelevant, that the European Union law provision in question has already been interpreted by the Court of Justice, or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt. 7 However, in the actual case the national court stated that the answer to the proposed question for reference had already been clarified by the Court of Justice; it set out the Court of Justice s case law and justified its view by reviewing the relevant judgments of the Court of Justice. 8 On this basis the requirement to give reasons pursuant to art.6 ECHR had been complied with. The ECtHR added that a corresponding obligation could also apply to courts that are not courts of last instance, the [European Court of Human Rights] does not rule out the possibility that, where a preliminary reference mechanism exists, refusal by a domestic court to grant a request for such a referral may, in certain circumstances, infringe the fairness of proceedings even if that court is not ruling in the last instance The same is true where the refusal proves arbitrary that is to say where there has been a refusal even though the applicable rules allow no exception to the principle of preliminary reference or no alternative thereto, where the refusal is based on reasons other than those provided for by the rules, and where the refusal has not been duly reasoned in accordance with those rules. 9 The requirement to give reasons expressed in the Ullens de Schooten & Rezabek case has since been repeated almost verbatim in a number of subsequent cases where, in several consecutive rulings, the 6 Canela Santiago v Spain (60350/00) 4 October Ullens de Schooten & Rezabek v Belgium (3989/07 and 38353/07) 20 September 2011 at [62]. The obligation to give reasons is possibly made even clearer in the French language version of the judgment: Il leur faut donc indiquer les raisons pour lesquelles elles considèrent que. 8 Ullens de Schooten (3989/07 and 38353/07) at [22] and [64]. 9 Ullens de Schooten (3989/07 and 38353/07) at [59]. In Irish Bank Resolution Corp (E-18/11) [2012] EFTA Court Reports 592 at [64], the EFTA Court stated that the comments of the ECtHR may also apply when a court or tribunal against whose decisions there is no judicial remedy under national law overrules a decision of a lower court to refer the case, whether in civil or criminal proceedings, to another court, or upholds the decision to refer, but nevertheless decides to amend the questions asked by the lower court. The EFTA Court did not refer to an authoritative source in support of this statement, which does appear obvious.

163 602 European Law Review ECtHR has examined the national courts reasoning for not making preliminary references, thereby throwing light on the more detailed extent of the obligation. Thus, in the Ferreira case the Portuguese Supreme Court had rejected an application to refer a question to the Court of Justice for a preliminary ruling with a short comment to the effect that in the actual case it was not relevant to apply the EU provision in question directly, that this provision had never been intended to govern the situation, and that the question should thus be resolved on the basis of Portuguese law. The ECtHR found that this justification was sufficient under art.6 ECHR. 10 Similarly, in the Vergauwen case, the ECtHR found that the obligation to give reasons had been satisfied. Here the Belgian Constitutional Court had declined to refer to the Court of Justice a question for a preliminary ruling, stating that some of the proposed questions were irrelevant to the case since they were based on a clearly incorrect interpretation of the EU directives invoked. As for some of the other proposed questions, the Constitutional Court observed that the Court of Justice had already stated that the issue in question was not governed by EU law. 11 In the Stichting Mothers of Srebrenica case, 12 the ECtHR, arguably, took a slightly different approach to the national court s reasoning for refusing to make a preliminary reference. Here the Netherlands Hoge Raad (Supreme Court) refused to refer a question to the Court of Justice on the relationship between the United Nations immunity to criminal prosecution and the requirement under EU law for effective legal protection. Despite the Hoge Raad s very brief reasoning for not making a reference to the Court of Justice, the ECtHR found that there had not been a breach of art.6 ECHR. In this regard the ECtHR observed: The Court finds that in the instant case the summary reasoning used by the Supreme Court was sufficient. Having already found that the United Nations enjoyed immunity from domestic jurisdiction under international law, the Supreme Court was entitled to consider a request to the Court of Justice of the European Union for a preliminary ruling redundant. More generally, although Article 6 requires judgments of tribunals adequately to state the reasons on which they are based, it does not go so far as to require a detailed answer to every submission put forward; nor is the Court called upon to examine whether an argument is adequately met, or the rejection of a request adequately reasoned. As will be clear from the above quotation, the ECtHR has taken into account the fact that the national court s substantive decision made a reference redundant and, consequently, has softened the obligation to give reasons for not making a preliminary reference. While, in all the above cases, the ECtHR found that there had been no breach of art.6 ECHR, in two recent rulings the Strasbourg Court has found that there was such breach. The first of these two rulings was given in the Dhahbi case 13 and concerned a Tunisian citizen who had taken up residence in Italy and obtained a work permit. Among other things the case raised the question of whether Dhahbi was entitled to a family allowance pursuant to the Association Agreement between the EU and Tunisia. Dhahbi requested both the Italian Court of Appeal and the Italian Court of Cassation to make a reference to the Court of Justice for a ruling. However, both courts rejected Dhahbi s claim for a family allowance without making a preliminary reference to the Court of Justice regarding the correct interpretation of the Association Agreement. Dhahbi thereafter brought proceedings against Italy to the ECtHR. In its ruling the Strasbourg Court started by confirming its previous practice, according to which it follows from art.6 ECHR that a national court of last instance that refuses to make a reference for a preliminary ruling must state the reasons why 10 Ferreira v Portugal (30123/10) 4 September Vergauwen v Belgium (4832/04) 10 April Stichting Mothers of Srebrenica v Netherlands (2013) 57 E.H.R.R. SE Dhahbi v Italy (17120/09) 8 April The ruling in Dhahbi was unanimous.

164 Analysis and Reflections 603 it finds that the Court of Justice has already ruled on the question (acte éclairé), that the question is acte clair, or that the question is not relevant to the decision in the case. The ECtHR then considered the judgment of the Italian Court of Cassation and found that it did not refer to Dhahbi s request for a reference to the Court of Justice for a preliminary ruling. Nor did the judgment give any reason why the question should not be referred. Thus it was not clear from the judgment whether the question was regarded as irrelevant, concerned a provision that was clear (acte clair), had already been interpreted by the Court of Justice (acte éclairé), or whether the Italian Court of Cassation had simply ignored Dhahbi s request for a reference for a preliminary ruling. The ECtHR added that the judgment of the Italian Supreme Court contained no reference to the Court of Justice s case law. 14 These findings were sufficient to conclude that there had been a breach of art.6(1) ECHR. 15 Similarly, the Schipani case concerned the Italian courts. 16 In this case an otherwise detailed appeal ruling did not contain any explicit reference to the applicants request for a preliminary ruling or any reason for refusing the request to make a reference. Unsurprisingly, the ECtHR considered that the Italian Court had not complied with the obligation to give adequate reasons. During the proceedings before the ECtHR, the Italian Government argued that the reasoning for not making a reference in accordance with art.267 TFEU had been indirectly apparent from the national court s ruling in the case. The ECtHR did not comment on whether, in principle, such indirect reasoning could fulfil the requirements of art.6 ECHR but merely stated that the Italian Court s ruling did not provide sufficient reasoning with regard to the two preliminary questions that the applicants had, in vain, asked the national court to refer. When does the ECHR require a statement of reasons for not requesting a preliminary ruling? In the Dhahbi and Schipani rulings the ECtHR expressly referred to the fact that the Italian Court of cassation ruled as a court of last instance. The obligation to give reasons was thus linked to the double circumstance that in the two cases there was no possibility for some other court to make a reference for a preliminary ruling and that, under EU law, courts or tribunals of last instance that decide cases in which EU law applies have an obligation to make references for preliminary rulings on the correct interpretation of the EU law unless there is no real doubt about the interpretation. However, it is not necessarily only courts and tribunals of last instance that must take account of art.6 ECHR when deciding whether to make a reference for a preliminary ruling. As stated above, in connection with the Ullens de Schooten case the ECtHR has ruled that it is possible that courts that are not courts of last instance can infringe art.6(1) if they decline to make a reference to the Court of Justice. 17 This is supported by the decision in the Irish Bank Resolution Corp case in which the EFTA Court referred to the ECtHR decision in the Ullens de Schooten case. 18 It is far from clear when a court that is not a court of last instance will infringe art.6 ECHR by declining to make a reference for a preliminary ruling. 19 Presumably this could at least be the case in the few situations 14 Dhahbi (17120/09) at [33]. 15 Dhahbi (17120/09) at [34]. 16 Schipani v Italie (38369/09) 21 July The ruling in Schipani was unanimous with regard to outcome, but one judge dissented with regard to the reasoning behind the ruling. The majority, however, followed the reasoning earlier established in Dhahbi. 17 See also Herma v Germany (54193/07) 8 December In this case the ECtHR referred to art.267 TFEU as a whole and not just to art.267(3), which is limited to courts and tribunals of last instance. 18 Irish Bank Resolution Corp (E-18/11) [2012] EFTA Court Reports 592 at [64]. 19 In the Ullens de Schooten case the ECtHR gave some general indications of when a court that is not a court of last instance could be covered by art.6(1) ECHR in connection with a possible reference for a preliminary ruling. See our discussion of this judgment above.

165 604 European Law Review where, under certain circumstance, courts that are not of last instance have an obligation to make references under EU law. 20 According to ECtHR case law, the obligation to state reasons is particularly relevant when a court of last instance declines to make a reference for a preliminary ruling at the request of one of the parties without adequately addressing the arguments which one or both of the parties may have made in support of such a reference. Presumably, a partial rejection/partial acceptance of a request to make a reference for a preliminary ruling is also covered by ECtHR case law. Thus, if a party asks for three questions to be referred and a national court only refers two of them, without giving reasons, it is natural to assume that the situation will be covered by the ECHR requirement to give reasons. However, the case law of the ECtHR does not appear to provide a basis for assuming that a national court of last instance that does not give justification for refusing to make a reference to the Court of Justice will always be in breach of art.6(1) ECHR. On the contrary, the ECtHR has previously stated that a refusal to make a reference without giving reasons will not constitute a breach of art.6 ECHR where a party s request for a preliminary ruling is not sufficiently supported by argument and if the matter raises no fundamentally important issue. 21 It is therefore natural to assume that the obligation to give reasons only arises where one party formally requests a reference to be made for a preliminary ruling, but not where a party merely refers to the possibility of a reference without formally asking the national court to make such a reference or where the question is merely considered by the court without it having been requested by the parties. What are the requirements under Article 6 ECHR for the content of the reasons to be given? Having found that where one party formally requests a reference to be made for a preliminary ruling the ECHR requires a national court to give a statement of reasons for not making a preliminary reference, the next question concerns the requirements for the content of the reasons to be given under art.6(1) ECHR when the national court refuses to make such reference. The cases brought before the ECtHR hitherto seem relatively straightforward. In both the Dhahbi and Scipani cases the Italian Court of cassation entirely failed to give any reason why it did not accept the requests for references for a preliminary ruling. In these cases there could be little doubt that the obligation to give reasons had not been fulfilled. On the other hand, the reasons given for declining to make a reference in the Ullens de Schooten case were so detailed that it was obvious that the ECtHR should find that the obligation to give reasons had been fulfilled. The same applies to the other cases referred to above, where the national courts not only stated in abstract legal terms that there was no basis for making a reference, but also set out the Court of Justice s case law relevant to the case and thereby demonstrated why this was so. It is therefore difficult, on the basis of the ECtHR existing case law, to determine more precisely the requirements as to the content, precision and level of detail of the reasons to be given, and to assess whether these requirements go further than the requirements that may apply under the Member States various procedural laws. This is particularly the case since in other contexts the ECtHR has stated that the extent 20 If a case before a national court gives rise to a question about the validity of an EU act, and if the court is inclined to disapply the EU act on the basis that it is invalid, the court will be obliged to make a reference for a preliminary ruling, regardless of whether it is a court of last instance; see Firma Foto-Frost v Hauptzollamt Lubeck-Ost (314/85) [1987] E.C.R. 4199; [1988] 3 C.M.L.R John v Germany (15073/03) 13 February 2007.

166 Analysis and Reflections 605 of the requirement for justification pursuant to art.6 ECHR may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. 22 According to the practice of the ECtHR, there will be no human rights problem if, in a ruling not to make a reference for a preliminary ruling, a national court gives an account of the circumstances of the case which, in its view, are reasons for not making a reference and makes a detailed review of the Court of Justice s case law that is relevant to the case. An example of this is the Danish Supreme Court s refusal to make a reference for a preliminary ruling in a case on parallel imports. In this regard the Supreme Court gave the following reasons: According to the case law of the Court of Justice of the European Union, the fact that a parallel-imported pharmaceutical product can be lawfully marketed in Denmark, without changing its name to that which the direct importer uses for the medicine in Denmark, is not sufficient for a finding that it is not objectively necessary to change the name in order to have effective access to the Danish market. According to the case law of the Court of Justice, a significant marketing investment for the parallel-imported product with a different name to that of the directly imported product is not a precondition whereby it can be objectively necessary to gain effective access to the Danish market. The other questions which Orifarm has requested should be referred concern exclusion from a part of the market, consumer choice of a cheaper parallel-imported product and the burden of proof in this connection. Given the clarity created in this area by the Court of Justice s case law, as reviewed above, in the view of the Supreme Court there is no doubt about the meaning of the EU law that necessitates a referral of a question to the Court of Justice for a preliminary ruling. 23 This statement of reasons is at least as clear as the statements that the ECtHR found to comply with art.6 ECHR in the Ferreira, Vergauwen and Stichting Mothers of Srebrenica cases. Thus, where a national court declines to make a preliminary reference in the actual case, stating that the proposed preliminary question has already been referred in another dispute and that it may be expected that the Court of Justice will rule on this other reference before the national court declining to make a preliminary reference must decide on the case before it, this will be fully sufficient to comply with art.6 ECHR. Finally, there are unlikely to be problems where a national court declines to make a preliminary reference because the parties disagreement in reality concerns the application of provisions about whose abstract content there is no disagreement. The same applies in those cases where the court refuses to make a preliminary reference on the basis that, at the point in the proceedings where one (or both) parties has requested such reference, it is too early to determine whether a reference should be made; for example because the specific character of the EU issues to which the case may give rise depends on an interpretation of provisions of national law, and the national court thus holds open the possibility of deciding to refer at a later time. However, far from all national courts approach such questions so specifically and in such detail. There have been several examples where rulings of national courts refusing to make a preliminary reference have been based on a model more or less corresponding to the following reasoning of the Supreme Administrative Court of Sweden: 22 García Ruiz v Spain (2001) 31 E.H.R.R. 22 at [26]. See likewise Hansen v Norway (15319/09) 39 B.H.R.C. 89; Gorou v Greece (12686/03) 20 March 2009; and Buzecu v Romania (61302/00) 24 May Among others, the requirements to give reasons expressed in the Dhahbi judgment have been discussed in the Netherlands Council of State (Raad van State) 5 March 2015 in Case /1/V2. 23 Ugeskrift for Retsvæsen 2013, p.401 H (unofficial translation).

167 606 European Law Review The issues of EU law raised in the case can be decided using the guidance of the case law of the Court of Justice. Thus, there is no reason to refer the matter to the Court of Justice. 24 Whereas such reasoning indicates whether the decision to refuse to make a reference is, for example, because EU law is not applicable or that the matter is one of acte éclairé or acte clair, it does not indicate why this is so and it does not give a more specific account of the basis for this view, for example by stating that the situation was an internal matter where the relevant EU rules do not apply, or that the Court of Justice has already ruled on the question that one of the parties wants referred for a preliminary ruling; it merely states that Court of Justice case law can be used as guidance. The abstract nature of the reasoning is underlined by the fact that by simply changing a few words about the nature of the dispute, the formula can be used in all kinds of cases, as it contains nothing about which Court of Justice judgments or sources of law justify the assessment that there is a case of acte clair (or acte éclairé if that is what the statement of the Supreme Administrative Court must be understood to mean), nor does it state what interpretation of EU law is correct beyond question. As already stated, ECtHR case law does not enable it to be stated, with a reasonable degree of certainty, how thorough the reasoning must be for refusing to make a reference for a preliminary ruling. However, the wording of the ECtHR judgments, containing abstract statements about the extent of the requirement to give reasons, suggests that reasons along the lines of the Supreme Administrative Court of Sweden quoted above would not satisfy the requirement of art.6 ECHR. In six judgments the ECtHR has now stated that national courts not only have an obligation to say that one of the proper reasons for not making a reference exists in a case, but the courts must also, indicate the reasons why they have found that the question is irrelevant, that the European Union law provision in question has already been interpreted by the [Court of Justice of the European Union], or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt. 25 It therefore does not seem obvious that it will be sufficient merely to state, for example, that there is a situation of acte clair without it being clear to the parties why the national court finds this to be so. 26 Does this mean that a number of the rulings of national courts rejecting applications to refer questions for preliminary rulings do not live up to the ECtHR requirements? Not necessarily. In our view it is also necessary to assess two further factors. First, it will presumably be relevant whether a request for a reference is supported by good reasons. Thus, the fact that a party generally and imprecisely asks for the relevant provisions of EU law to be put before the Court of Justice can hardly mean that the national court must give an extensive statement of reasons for refusing to make a reference. On the other hand, if a party has carefully and persuasively argued that a reference for a preliminary ruling is necessary, it seems obvious that this will make a higher demand on the court s reasoning for refusing to make a reference. Secondly, and in practice equally importantly, it can hardly be required that the reasons for refusing to make a reference for a preliminary ruling should be entirely and solely derivable from the ruling whereby the request is refused. In our view it must be sufficient that the reasoning is given fully when read in the 24 Regeringsrättens Årsbok (Yearbook of the Supreme Administrative Court) 2009 No.72, quoted in U. Bernitz, Preliminary References and Swedish Courts: What Explains the Continuing Restrictive Attitude? in P. Cardonnel, A. Rosas and N. Wahl (eds), Constitutionalising the EU Judicial System: Essays in Honour of Pernilla Lindh (Oxford: Hart Publishing, 2012), pp at p.181. Other examples from Sweden have been provided by M. Johansson and S. Ahmed, De högsta domstolsinstansernas motiveringsskyldighet vid beslut att inte inhämta förhandsavgörande från EG-domstolen en papperstiger? (2009) 4 Europarättslig Tidskrift 783, Dhahbi (17120/09) at [31] (emphasis added). See likewise Schipani (38369/09) at [69]; Ullens de Schooten (3989/07 and 38353/07) at [62]; Ferreira (30123/10), point A; Vergauwen (4832/04) at [90]; and Stichting Mothers of Srebrenica (2013) 57 E.H.R.R. SE10 at [172]. 26 Depending on the circumstances, the obligation to give reasons could be fulfilled by the court referring to the arguments (or part thereof) presented by one of the parties.

168 Analysis and Reflections 607 context of the final judgment in the case. What is decisive must be whether the national court s decision on the reference for a preliminary ruling and the national court s final judgment together are clear about the circumstances to which the court has given weight for refusing to make a reference, for example by giving a review of the Court of Justice s case law or by showing that the question is in reality subsumed under legal provisions whose content do not in themselves raise such doubts as to require a reference. 27 This understanding also finds support in the fact that, depending on the circumstances, exhaustive justification for not making a reference can cause problems in relation to another aspect of art.6 of the ECHR, as this could mean that a national court would in reality be forced to decide on the EU law elements of a case before the parties have exchanged all views and arguments with regards to the main action. Conclusion The fact that the interpretation of a Union act is contested before a national court does not in itself entail that this national court is under an obligation to make a preliminary reference to the Court of Justice. However, if one (or both) parties to a case requests that the national court makes a preliminary reference, it follows from ECtHR case law that at least where the national court is deciding in the last instance it must be clear from the national court s ruling why the question should not be referred. Thus, the national court must state whether the question was irrelevant, whether it concerned a provision that was clear (acte clair), or whether it had already been interpreted by the Court of Justice (acte éclairé). If the national court does not provide reasons but instead merely ignores the request for a preliminary reference, this refusal may prove arbitrary and thereby constitute an infringement of art.6 ECHR. While the existing case law of the ECtHR does not allow us to determine more precisely the requirements as to the content, precision and level of detail of the reasons that a national court must give when refusing to make a preliminary reference, it still appears safe to conclude that if, in a decision not to make such reference, a national court gives an account of the circumstances of the case which, in its view, are reasons for not making the reference and makes a detailed review of the Court of Justice s case law that is relevant to the case there will be no human rights problems. We also find that there are unlikely to be problems where a national court declines to make a preliminary reference on the basis that the parties disagreement in reality concerns the application of provisions about whose abstract content there is no disagreement. The same applies in those cases where the court refuses to make a preliminary reference on the basis that, at the point in the proceedings where one (or both) parties has requested such reference, it is too early to determine whether a reference should be made. If our construction of ECtHR practice is correct, it should not cause insurmountable problems for the Member States courts. However, in order to be on the safe side, it is recommended that national courts should generally take care to state their reasons for refusing references in situations where the issue arises. 27 See in support of this Stichting Mothers of Srebrenica (2013) 57 E.H.R.R. SE10, discussed above.

169 Book Reviews EU Social Security Law: A Commentary on EU Regulations 883/2004 and 987/2009, by Maximilian Fuchs and Rob Cornelissen, (Munich, Oxford, Baden-Baden: C.H. Beck, Hart Publishing, Nomos, 2015), 554pp. inc. index, hardback, 178, ISBN: The question of access by EU citizens to social benefits in their host Member State is one that has given rise to a gargantuan amount of jurisprudence from the Court of Justice of the EU and filled tabloid newspapers front pages for years. While hard-working EU citizens who learn to speak the language of the host country quickly and do not get into trouble with the police tend to be welcome in any Member State (even the UK), as soon as they are unemployed or need social benefits the tide turns. They are no longer portrayed in some parts of the media as our fellow citizens from a neighbouring country but as scroungers seeking to live off our hard-earned benefits. In this rather toxic media fixation, the academic world tends not to participate enthusiastically. One of the reasons for this is that EU rules on the co-ordination of social security are devilishly complicated. Most academics are tempted to prevaricate when called up by journalists and asked whether it is true that EU citizens are entitled to this or that social benefit. In the UK the situation is even more problematic as, with the recent referendum on whether or not to continue EU membership, the issue of social benefits has topped the list of those who want to leave. In the Prime Minister s letter to the President of the Union, Donald Tusk of 10 November 2015, the Prime Minister set outs his demands as regards the renegotiation of EU law necessary to persuade him to mount a UK campaign in favour of staying in the UK. Top of the list were two social benefits issues: 1. limit in-work benefits to EU citizen workers until after they have completed four years work and residence in the UK; 2. end the payment of family benefits to EU citizens working in the UK for family members resident in other Member States. In the political world these issues are often treated as purely political, subject exclusively to negotiation. In the legal world the situation is very different although many academics and practitioners know that cross-border co-ordination of social benefits is an exclusive EU competence, they are very hard pressed to draw the red line between what is up for political negotiation and what is decided EU law even from the 1980s embedded in the Treaties. At last we have in English an authoritative commentary on exactly these questions. The authors are particularly well placed to produce such a guide: Fuchs is a professor who has devoted his academic career to the subject and Cornelissen is a former senior Commission official who participated centrally in the drafting, negotiation and adoption of the two regulations which provide the definitive answers to these questions. The book has been well thought through examining what the needs of academics and practitioners are going to be when faced with social benefits issues. As in any commentary about EU law, the starting place is always the legal basis where in the Treaty on the Functioning of the EU do we find the competence and what sort of a competence is this? The authors deal with this clearly and completely in the first chapter. Then, as is always the case in tricky areas of EU law, the material and personal scope must be clarified this is the subject of the second chapter. It is here that the four fundamental principles of EU social security law are set out clearly and concisely with full and user-friendly definitions: equal treatment (with whom, in respect of what, etc., all clarified); aggregation (aggregation of what with what, and to what ends and 608

170 Book Reviews 609 outcomes); residence rules (are they legal, when and in what circumstances and for what sorts of durations); overlapping benefits (what does it mean to have overlapping benefits and what can States do to prevent people doing too well out of the system, and how can people protect their interests). Another fiendishly difficult bit of EU social benefits law is determining what the applicable legislation is. Even the CJEU has trouble deciding when Regulation 883/2004 should apply and when the Citizens Directive 2004/38 should take priority. The problem undoubtedly comes from negotiations in the drafting and adoption of the Regulation and Directive, which have resulted in blurred overlaps that create difficulties. The authors do not seek to dodge the issues but provide workable and jurisprudence-friendly solutions to the issues which have yet to be decided by the CJEU. After dealing with these two complex areas, which tend to defeat anyone coming new to the field, the authors sensibly consider each benefit, one by one, each with its own chapter. The Regulation sets out what are the social benefits covered by it, so the trick to getting this right is to follow the two Regulations and build on the extensive jurisprudence of the CJEU which explains (often surprisingly) the provisions. Title III starts with sickness, maternity and equivalent paternity benefits, setting out where the provisions are which deal with these benefits, what they say and how the Court has interpreted them. Second come pensioners rights an issue of increasing complexity, particularly where EU workers have acquired rights in more than one Member State and the pension authorities are anxious to ensure that no one benefits from overlapping benefits. Next are benefits in respect of accidents and occupational diseases a field which has been particularly active in the past but appears to be giving rise to slightly less jurisprudence at the moment. Invalidity benefits, in the next chapter, however, are a particularly lively field where many issues arise around their export which fox lawyers and academics. The writing is clear and precise and provides real answers to difficult questions. Unemployment benefits come next a field where the Member States have proved particularly open to extending periods when these can be claimed in a new host State, though the realisation in practice tends to be execrable. Yet, the possibility of exporting these benefits may be key for individuals to be able to exercise their free movement rights and have a way of supporting themselves in a new Member State while they are seeking a job there. The correct application of the export rule of these unemployment benefits is critical to answering concerns by some political parties that the EU s unemployed all come to one Member State (e.g. the UK) to seek benefits. Explaining that many will already have unemployment benefits exported from their home Member State to tide them over the initial period is important to take the sting out of this argument. Family benefits are dealt with in Ch.8 the source of much of the UK Prime Minister s concerns. One of the fascinating things about this field is the diversity and imagination which goes into designing and delivering family benefits in myriad different ways in the Member States. Faced with such diversity, it is a challenge even for the CJEU to come to conclusions about what is a family benefit and what is not. This chapter makes it as clear as possible and answers some of the UK Prime Minister s questions about the export rule and family benefits. Another almost as contentious issue in social benefits law is the existence of special non-contributory cash benefits. These have caused many ministers and officials across the Member States sleepless nights, trying to ensure that some benefit they are creating either does or does not come within this category, depending on whether they want it to be exportable or not. All the rules and jurisprudence are neatly bundled up in this chapter, with everything one needs to know in order to see the strengths and weaknesses of various parts of national legislation on the subject. The final chapters deal with the administration of the Regulations, which is perhaps of less interest to practitioners, though academics may well find this important. The book finishes with a section on the Association Agreements which include provisions on social benefits. Most important here is the EC-Turkey Agreement the impact of the non-discrimination provisions in that Agreement for the delivery of social benefits to Turkish nationals working or self-employed in the EU is enormous.

171 610 European Law Review In conclusion, this is a specialist book but a rare and important one which provides definitive answers to extremely complex and politically sensitive questions. The authors never take the easy way out by fudging the answers to difficult questions, but address them calmly and from an unparalleled command of the law and jurisprudence, providing clear and concise answers. Not everyone is interested in EU social benefits law, but anyone who is would do well to consult this commentary. Elspeth Guild Queen Mary, University of London The European Council & the Council: New Intergovernmentalism and Institutional Change, by Uwe Puetter, (Oxford: Oxford University Press, 2014), 288pp. inc. index, hardback, 55, ISBN: The last two decades, stretching roughly from the Maastricht Treaty to the unfolding of the euro crisis, have seen drastic changes in the balance of powers within the European Union. Uwe Puetter s new book aims at retrieving the nature and the upshot of the type of institutional change occurred since then. Its core argument is rather straight, yet striking: since the Treaty of Maastricht, the balance of powers in the EU has changed remarkably in favour of intergovernmental institutions. The European Council and the Council of Ministers have expanded their powers, and their role has become crucial in determining the trajectory of EU integration. A concrete factor explains such an expansion: the introduction of new areas of EU activities beyond the realisation of the internal market. To this shift in the balance of power corresponds a reduction of the so-called community method and the progression of integration through law. According to Puetter, the current trajectory of European integration creates a potential paradox because it asks for more integration without showing any taste for delegating further competences to the supranational level. From this perspective, the slow but constant reduction of legislative activism of supranational institutions should not be read as a sign of integration fatigue. Rather, the challenge has been to advance integration without, or with only strictly limited, delegation of power to the supranational level. The volume focuses on three policy areas to illustrate the integration paradox: economic governance (euro governance included); foreign, security and defence policy (CFSP); and social policy (divided into employment, social policy proper and equal opportunity policy). All three areas of activity show the same trajectory in terms of methodology: none has been developed through the classic community method (apart from certain aspects of social policy) and, in almost all cases, supranational institutions have been only marginally involved. In fact, the Commission contributes only through policy suggestions and in supporting implementation, but cannot exercise its traditional right of initiative, nor does it have independent enforcement powers. Under this intergovernmental mode, the jurisdiction of the European Court of Justice is also limited and it can be activated only by Member States. The analytical framework adopted by Puetter to tackle these new areas of activity is defined as deliberative intergovernmentalism. The definition is quite telling because it stresses the importance of policy learning and epistemic deliberation as conducive to consensus generation. The type of rationality behind it is rather different from the one supporting the ordinary community method. It has to be noted, here, that deliberative carries a weak normative load. The idea is not that the European Council or the Council of Ministers discuss policy issues with a view to finding the valid and correct argument in support of a certain solution. In other words, it is not a normative democratic framework. Nor is it the case, as claimed by the rational choice approach, that intergovernmentalism is just a matter of voting and coalition building. Rather, deliberation is a procedure aimed at eliciting collective consensus on the basis of a complex institutional, administrative and informal structure. Under this aspect, deliberative

172 Book Reviews 611 intergovernmentalism speaks more directly to the idea of deliberative supranationalism introduced by Joerges and Neyer, with its focus on the importance of legitimacy and appropriateness. The term deliberative, is chosen to indicate a particular quality of the new intergovernmentalism that is central to its analysis. Whatever terminology is used, the EU policy process is likely to involve both a constitutive element, which consists of defining and propagating collective policy objectives and thus the EU s general interest, and equally an element that accounts for the representation of diverging national interests. (p.43) The inception and implementation of policy co-ordination constitute the real targets of deliberative intergovernmentalism. Therefore, deliberative intergovernmentalism expects from Member State governments a high degree of commitment to consensus-seeking on an ongoing basis, as they all share the general conviction that unilateral action is not a viable option. Such an assumption points to an investigation into the possibility of collective action hence a visible preference, in its institutional embodiment, for informal and often secret processes of deliberation in virtue of the fact that they make it easier to reach an agreement. In this way, it is claimed in the volume, it is possible to realise positive integration and to overcome the joint-decision trap of collective decision-making in the absence of a supranational authority. Puetter s analysis of the workings of the three areas mentioned above occupies two central chapters (3 and 4) and provides some crucial findings for future research on institutional design and policy and law-making within the EU. The main finding is that the trajectory of intergovernmentalism is compatible with further integration. Hence, the dichotomy of supranationalism versus intergovernmentalism as a confrontation over more or less integration should be abandoned. Secondly, the European Council has proven to be the only forum capable of commanding the necessary political authority to engage in such processes. Hence, the European Council has become the political centre of gravity of new intergovernmentalism. However, the rise of the European Council entails the increasing involvement of this institution in day-to-day policy issues rather than only long-term decisions. Thirdly, the focus on achieving agreement implies an emphasis on face-to-face debate between top-level decision-makers (p.63). In this respect, informal decision-making is gaining more importance. As executive decisions are not delegated to the Commission but require the consent of Member State governments each and every time they occur, even the European Council and the Council of Ministers are pushed to organise their activities not according to a pre-established agenda, but according to the unfolding of events. Last but not least, the effort toward mediating policy co-ordination has brought about changes in the administrative bodies charged with that task. New working methods and meeting formats have been introduced, shifting the competences of some administrative bodies. Qualitative analysis shows that the General Affairs Council has seen its tasks multiplied precisely because of the effort toward horizontal co-ordination. On the other hand, COREPER, still a key institution in the preparation of many agendas, has lost some of its influence because of the informal character of certain Council meetings. Overall, the volume is impressive for its depth and scope, and extremely persuasive on many of its points. The problem with the main claim put forward in the book may concern the emphasis on the novelty of the new type of intergovernmentalism. In fact, the claim of newness evokes a rupture in the linear development of European integration but is this really the case or is the author exaggerating his claim? In fact, it seems that the European Council, even in its informal original version, was already a key actor in steering the trajectory of European integration and, as a consequence, the same can be said of the role of the Council. In the same way, the hierarchy recently made visible during the management of the euro crisis between the European Council and the Council of Ministers was already in place and effective from the 1970s. A more direct confrontation between pre-maastricht and post-maastricht intergovernmentalism

173 612 European Law Review could have made the case for novelty more straightforward. So, isn t it the case that, instead of novelty and discontinuity, the rise of intergovernmentalism signals simply the expansion of an already established trend? Yet, much to the credit of the author, one can see throughout the text that the novelty of this type of intergovernmentalism is not reducible to the terms of the affirmation of the European Council as the main centre of political gravity. The key point is about the quantity and quality of governance introduced by new intergovernmentalism and the central role played by the European Council because it, implies that it has established a distinct decision-making mode outside the community method that is not primarily focused on creating new EU legislation. While the European Council cannot overtake the legislative functions of other EU institutions, there is nothing to prevent the institution from interfering directly with non-legislative policy decisions prepared by the Council and the Commission. (p.73) Of course, this does not mean that the ordinary legislative activity of the EU is going to be fully eclipsed. Policy co-ordination does not contrast with ordinary legislation: the latter s established scope mostly related to the realisation of the internal market has never been under discussion. Being a constellation of international treaties, intergovernmental decisions and ordinary regulations and directives, the new economic governance of the euro zone represents a paradigmatic example of a hybrid type of decision-making where legislative activity and intergovernmental policy co-ordination co-exist. Yet, Puetter s argument on the rise of new intergovernmentalism is extremely solid. He is not much interested in passing normative judgments on the new intergovernmentalism, even though it is clear from the conclusive chapter that he is fully aware of its pitfalls both at the European and at the Member State level. The hope is that many of the precious insights contained in this volume will be taken up in future research in order to explore the possible avenues for enhancing democratic accountability in the framework of the new intergovernmentalism. Marco Goldoni University of Glasgow The Greening of European Business under EU Law: Taking Article 11 TFEU Seriously, by Beate Sjåfjell and Anja Wiesbrock (eds), (Abingdon: Routledge, 2015), 206pp. inc. index, hardback, 90, ISBN: This book is a timely and necessary contribution different from other legal commentaries owing to its ability to suggest, in an objective manner, the possible substantive implications and reach of the environmental integration clause of EU primary law on the regulation of businesses in Europe. The book balances the doctrinal debate concerning the genesis and scope of art.11 TFEU with a detailed assessment in its second part of the actual and potential practical legal consequences of taking art.11 TFEU seriously. The Greening of European Business under EU Law: Taking Article 11 TFEU Seriously, edited by Professor Beate Sjåfjell and Dr Anja Wiesbrock, explores the way in which art.11 of the Treaty on the Functioning of the European Union (TFEU) sets out an all-encompassing legal duty to integrate environmental protection requirements in the policies and activities of the Union, in particular with a view to promoting sustainable development. The book does not only provide a detailed and innovative analysis of the legal and economic development of EU law with regard to environmental protection. More importantly, it contributes to the overall European legal debate and offers a unique insight on the way in which EU law should and could be interpreted.

174 Book Reviews 613 While the traditional approach in law and policy suggests a compartmentalisation where business law is not concerned with environmental protection, this book offers a broader and more nuanced picture by formulating the holistic reading that art.11 TFEU mandates. It questions what this may entail for the EU institutions and for the Member States, specifically for various areas of EU law that affect industry, such as company law, State aid, product policy, public procurement and insurance. The perspectives and discussions throughout the book offer a new perspective on the actual, and more importantly future, legal implications of the environmental integration clause in EU law. A remarkable feature is notably the way in which the authors turn the traditional retrospective nature of legal analysis towards a forward-looking approach. The scholars have taken a leap, not only in the sense of assessing the nature and scope of art.11 TFEU; the various authors also assess in detail the practical and horizontal reading of the possible future implication of this primary law provision. Further, the editors challenged the authors to conceptualise suggestions for change. This reconceptualisation of legal interpretation is made through an objective reflection, launching a prospective debate on the interpretation of art.11 TFEU. As such, this book stands as a very strong and necessary contribution to the current and future evolution of EU law. Part one consists of a thorough analysis of the genesis, legal purpose, and overreaching significance of art.11 TFEU. This article s specific intentional integrationist character is analysed and complemented by a more doctrinal debate on the principle of sustainable development as well as its overall legal significance for the EU institutions and Member States. Building on these premises, the book turns to an analysis of the significance of the environmental integration principle for the regulation of business in specific policy areas. Part two narrows down the more doctrinal and theoretical debate by assessing the potential implications of taking art.11 TFEU seriously through the lens of practical legal examples. It questions the potential for reform of European business by analysing its possible, future application in numerous areas. In this respect, the contributions in the second part may serve as a possible guideline for the future implication of art.11 TFEU in an array of economic, business, and internal market related issues. The book is indeed a wake-up call, and sometimes such wake-up calls may be rather disturbing. If our legal alarm clock is set, it is rather tempting to snooze under the comfortable covers of a retrospective and traditional analysis of case law, literal interpretations and separate assessments of one particular area of expertise. Nevertheless, the editors have successfully challenged the various authors to conceptualise suggestions for change. This reconceptualisation of legal interpretation is framed within an objective reflection. This reflection is made by applying a horizontal reading of the Treaties art.11 TFEU should be understood as a bearer of a general principle in EU law reflecting that the EU is not merely based on market integration principles but rather tends to evolve towards a normative and value-based legal reasoning. The book offers a comprehensive, consistent, and clear contribution towards the understanding of the possible implications of art.11 TFEU. It demonstrates the practical legal consequences in a number of different areas. Furthermore, legal science is perceived as a forward-looking discipline with an important societal role for the academic scholar. Legal science will not contribute to developing the law or can only with much difficulty do so, if our perspective is only to be a retrospective, static understanding of the law. Can we as legal scholars be content with an analysis of case law, commenting on legislative acts and interpreting legal provisions? The response is that we can certainly not be content with a traditional legal analysis. Accordingly, each and every academic has a responsibility to society first to be aware of the underlying value choices in their area of expertise. Yet the book is far from being an ideological contribution towards the debate of an ever-stronger environmental principle in EU law. Various perspectives are carefully balanced and argued in a convincing manner regarding the way in which art.11 TFEU could and potentially should be understood. Lastly, the research method is particularly solid and innovative. Using the historical archives of the EU, investigating the actual intention of the Member States and inserting this into the analysis bear witness to

175 614 European Law Review an elegantly formulated research approach. Thus, The Greening of European Business under EU Law could and should be used as a reference point for policy-makers, scholars, and practitioners alike. Thea Sveen European University Institute Towards a European Legal Culture, by Geneviève Helleringer and Kai Purnhagen (eds), (Munich, Oxford, Baden-Baden: C.H. Beck, Hart Publishing, Nomos, 2014), xvi + 395pp., hardback, 190, ISBN: Is Europe moving towards a genuinely European legal culture, supposedly different from Asian, American, or post-socialist legal cultures? What are the features of this European legal culture that make it different from Arab (El-Ahdab, 1998), French (Bell, 2001), Japanese (Scheiber, 2001), Latin American and US (Gordon, 2003), Indian (Padhy, 2008), South African (Sfeir, 2009), post-socialist (Tulibacka, 2013; Svegrist and Muller, 2014), and Chinese legal cultures (Picker, 2015)? This volume, in line with recent trends that describe different legal cultures worldwide by opposition (and through comparison), attempts to answer these questions. The path Towards a European Legal Culture is traced through discussion of two longstanding legal issues: EU constitutionalism, and a European Civil Code. The essays comment on these issues from an outside (US) and an inside (European) point of view. Almost all of them develop theoretical reflection which does not directly consider the community at large: neither legal actors such as solicitors or notaries, nor stakeholders such as businesses and consumers. The volume comprises 16 essays, with a preface and three parts: (I) Law and Culture: Two Uneasy Bedfellows ; (II) Shaping Legal Norms with Culture ; (III) Shaping Culture with Legal Norms. The hypothesis to be tested is whether European legal culture can accommodate both community-building at EU level and cultural pluralism among Member States, as the two editors, K. Purnhagen and G. Helleringer, explain in a thoughtful Preface. Since it is not always clear why some essays are in Part I, II or III, I will follow a different reading itinerary, presuming that the essential point is not that of a general legal culture as opposed to many particular ones, because general and particular are simply different levels at which any system of categorization encounters the same world (Thornhill et al., 1997). To begin with, I would have opened the volume with the historical perspective on the meaning of European legal culture. H. Dedek would have raised our awareness, at the outset, of the multiple shades of meanings of legal culture within different Western intellectual traditions which have conceptualised the term culture. Stemming from the verb colere in early Latin usages, it denotes a state in which nature has been redefined by human efforts. The idea of the cultivation of the individual is then transferred to societies, and to a meta-individual dimension of societal progress. The Age of Enlightenment expressed this idea through the term civilization, meaning culture as a measurable quality according to universal standards, whereas the Age of Counter-Enlightenment, and particularly J. Herder, rejected the cosmopolitan concept and linked the term Kultur to the agenda of Romantic Nationalism, which exalted diversities. F. von Savigny magnificently interpreted this intrinsic ambiguity of culture. On the one hand, a meta-national legal culture that instils a sense of unity for the construction of statehood (championed today by R. Zimmermann and his jus commune narrative); on the other, a particularistic concept identified with the uniqueness of the nation-state threatened by trends towards unification (propounded by P. Legrand and his not converging metaphor). He affirms that the term culture is eclectic and polyphonic (p.354), ambiguous (p.355) and fluid (p.357), and concludes that the slippery multi-valence of culture casts doubts on the usefulness of the concept as a heuristic tool with an explanatory function (p.371). C. Semmelmann s essay, in the same vein, takes examples drawn from ECJ case law to illustrate why EU law does not share a

176 Book Reviews 615 common definition of legal principle (p.308); why these principles are treated as exotic beings ; in which sense they are understood as a continuum between the two poles of unity and diversity (pp.306, 310); and how they are part of (both shaping and reflecting) the new definition of European legal culture (p.313). She admits that legal culture is a highly elusive concept, on which there is a very low level of agreement (quoting R. Cotterrell, 1997; R. Michaels, 2013). Ch. Mak s essay also draws attention to ECJ case law, and stands out for its lucid analysis of the judicial processes that generate substantive EU private law rules. She addresses the role of the judiciary within the process of the construction of a European legal culture and conceptualises the latter in terms of fundamental rights and their values: she argues that judges should integrate fundamental values in judicial reasoning of private disputes in order to balance private interests with different ideas of common goods (p.390, Mak; following J. Habermas, 1992). G. Helleringer s essay also analyses the process towards a European legal culture, through various (private) actors. For example standardised contract terms can contribute to building a European practical legal culture. She first identifies a European normative legal culture, already in existence, and then an emerging practice-generated European culture. This European practical legal culture consists of the manner in which the law is enforced, judicial rites and the structure of the court system as well as the way in which contracts are drafted (p.246). Her reasoning is based on the assumption that both culture and law share a normative as well as a practical dimension. Culture produces a set of values, rules and institutions that create together the way of acting of a given community, in the same way that legal rules and practices constitute the core of a given legal culture. Another essay criticises the neo-formalist, mainly dogmatic, approach to private law that reached its peak during the discussion on the European Civil Code and that was synthesised by the debate on DCFR style and substance. It has also been called Euro-nationalism (M. Hesselink, p.22). This last concept is part of the work of G. Comparato, who came to the conclusion that the historical dynamics that lie at the foundation of both the EU and its Nation States are similar (p.335). European culture, he said, derives from Member States national cultures, but it presents some clearly identifiable EU features (p.344): a conception of politics and market characterised by distrust in the market s ability to correct its own failures; the struggle for more social justice; a sensitivity to the protection of human dignity; and a limitation of sovereignty. According to the author, the Europeanisation of private law, the creation of European research institutes such as the ELI in Vienna, and the Europeanisation of legal education with a view to creating a unique European societal background appear as a naïve hope (p.341). An opposite opinion is expressed by N. Simantiras. His essay looks at cultural plurality as a value that can unite different forums, by favouring communication and co-operation. Only through a sound understanding of the real characteristics of EU cultural plurality can we have, in the long term, national cultures partially connected to each other, and a gradual development of an EU legal education culture. To this end, we should fill the gaps in our knowledge of legal educational systems in the Member States (for example methodology used to teach EU law; comparability of qualifications; mobility and transnational curricula). In his conclusion, legal education is one of the autopoiesis mechanisms for legal systems (Luhmann, 1990) through which legal culture becomes something that can be learned and taught (p.226). A different set of essays relies more on economic analysis of law, and describes the process towards a European legal culture with more enthusiasm. In particular, according to R. Lanneau, dogmatism is the cultural element of the law, ultimately depending on the notion of legal culture. The key elements in the three-dimensional idea of dogmatism he describes are: the degree of instrumentality, or of autonomy of the law from the society; judges discretion in legal interpretation; and a general perception of the role of judges and lawyers. Through this framework of analysis he describes European dogmatism as opposed to US dogmatism, and reassesses the value of law & economics in EU countries in comparison with the US (p.26). Conversely, in the opinion of D.-J. Mann, the differences between the US and the EU are less clear-cut than one could expect (p.70). A closer look at US antebellum history clearly reveals that, at

177 616 European Law Review least with regard to the constitutional level, there are more similarities than differences. K. Mathis s essay on administrative law in Germany and Switzerland is also influenced by economic theories. He starts from the traditional concept of bureaucracy in administrative law, oriented to principles such as legality and equality of rights (p.141), to show the evolution of the administrative law cultures in those two countries. He concludes that recent administrative law paradigms seem to be bringing about considerable change in the administrative culture of the modern European welfare state (p.159), but can we still define European States as welfare states? And if the answer is affirmative, do they share any administrative culture? Another essay, co-authored by V. Magnier and D. Rosenblum, uses economics and efficiency-related arguments to argue that a European legal culture of corporate governance is growing. They describe the increasing use of quotas for women on corporate boards in both national and supranational European contexts, exploring in depth the stakeholders v shareholders divide between the US and France. In particular, the authors argue that quotas à la française may foster greater consistency in European corporate governance (p.168). Economic analysis of law (Coase and Williamson are referred to) is also of paramount importance for H. Barbier, who argues that social order today gravitates around the concept of risk. Is risk treated in the same way in French, English, US or German law, or is there a culture of risk for civil law and one for common law? (p.212). In answer, the author compares legislation on risk-taking, recognising many similarities in both common and civil law countries, and concluding that a common principle (which he calls precautionary duty, p.220) is prevalent in European legal cultures. Legal culture is described by A. Afilalo, D. Patterson and K. Purnhagen (p.278) as the sum of non-enforceable prerequisites that a legal society within an autonomous legal system has developed to make, find, interpret and confirm law a notion that, according to the authors, resembles the theory of legal formants (R. Sacco, 1991). EU legal culture takes some EU-specific features and balances them with some nation state features (p.299): the EU features lie in the enforcement of hallmarks of market-oriented legal culture, which contributed to market integration, such as product safety law, competition law, and consumer law, while among nation state features the most relevant is the inclusion of human rights protection into competition and consumer laws. Other essays seem more cautious in dealing with the term culture, and prefer to highlight diversity (but not in Legrand s terms). They seem more in line with the debate attributed to both comparative, political sciences and sociological studies on legal culture, which recognise there is no single theory able to capture regional, national and supranational legal culture in the EU (p.59, D.-J. Mann). The author concludes that the social sciences in general cannot provide legal scholars with an ultimate answer on the existence of a European legal culture, but rather with different types of nationalisms. H.-W. Mikclitz argues against the idea of a European legal culture in the sense of a homogeneous set of values. In the multi-level EU structure, national patterns of legal culture clash with the emerging European legal culture. Through the description of the development of some nation states legal cultures (France, Germany and the UK), he shows how these cultures clash, converge, or lead to one composite culture in the field of private law. An opaque picture of EU legal cultures emerges, demonstrating the unsystematic nature of the notion (p.100). In the same vein, and through many different examples taken from case law, M. Dyson scrutinises the fragmentation of legal cultures across legal domains, a term he prefers to legal systems, i.e. the domain of English tort law, or of French administrative law (p.124), although he explicitly avoids the concept of legal culture. In conclusion, the volume, which assumes readers have a certain knowledge (of areas such as legal theory and comparative law methodology, of sociology theories and political science), presents many ideas and is particularly inspiring. What is strongly convincing is the multidisciplinary analysis of the legal process towards a European legal culture, through the legacy of the nation state (democracy, rule of law, constitutionalism) and its specific challenges: European legal culture, then, becomes a procedural concept, in flux and specific to context, which will probably never be fixed. The essays in some cases

178 Book Reviews 617 overstate the cohesiveness of culture. Behaviours, which the law aspires to regulate, are also a product of the brain, an organ of our body in constant cognitive adaptation in response to social interactions, so that we should be seriously rethinking the role of both biological and cultural elements in shaping human behaviours. Nevertheless, even if you think legal culture is itself a fairy story (Weatherill, 2014), the contributions remind us, very convincingly, of the broader conceptual framework beyond legal rules and judicial decisions, and beyond a simplistic cause-and-effect paradigm (A. Saguy and F. Stuart, 2008). Barbara Pasa University of Torino Europe s Justice Deficit?, by Dimitry Kochenov, Gráinne de Búrca and Andrew Williams (eds), (Oxford: Hart Publishing, 2015), 510pp. inc. index, hardback, 60, ISBN: Is the notion and language of justice coming into fashion among EU lawyers? Based on the book under review here, but also the heightened interest in the topic among other EU lawyers more recently (see also: F. de Witte, Justice in the EU: The Emergence of Transnational Solidarity (Oxford: Oxford University Press, 2015)), this certainly seems to be the case. The appeal of justice as well as its perceived deficit within the EU are easy to comprehend in light of the unfolding crises within the EU euro, refugee and democracy which are recurring themes within the book. The volume, which brings together an impressive number of scholars with an interest in law and justice, covers a range of fields far beyond the current crises, giving voice to the editors belief that justice has for too long been ignored by EU lawyers. The book covers such a wide range of fields, divided over so many chapters (30 in total) that, instead of providing an overview of all issues discussed, this review will discuss some of the most common themes in the book, meanwhile referring to the relevant chapters. The concern, expressed by Somek in his chapter, that talk about justice might be little more than business as usual under a new heading, that is, talk about rights in the name of justice, seems by and large unfounded. While a number of chapters indeed adopt a more traditional perspective, focusing almost solely on human rights (Tsakyrakis) or judicial review by the European Court of Justice (Leczykiewicz), a large number of chapters adopt intellectually more challenging perspectives, warning against notions of justice that ignore democracy (among others: Wilkinson, Gerstenberg, and José Menéndez) or explaining, as done by Přibáň and Davies, why political legitimacy and political justice cannot be replaced by accounts that focus merely on output legitimacy, as provided by Neyer s account of justice as justification. The book, in other words, provides great insights into and fascinating debates about the prerequisites for and requirements of justice. The challenging aspect about any discussion about justice is, of course, justice s contested nature, which most authors recognise (but see Forst) and even value. There are probably as many accounts of what is just as there are people and even animals if we follow Kochenov s Just World theory in this world. The book should not be read in the hope to find clear answers. It is also not the volume s intention to provide answers, and rightly so, but rather, as De Búrca writes in the conclusion, to stimulate a more active scholarly debate (p.459). Fortunately, debate there is plenty. Several of the contributions provide a fascinating overview of how the same political and legal decisions may be seen either as just or unjust depending on someone s view of what justice requires. While the majority of EU lawyers are likely to question the justness of the EU-imposed austerity measures and their devastating consequences for parts of the population in the South, the chapters by Nicol and Menéndez show that whether one will see the

179 618 European Law Review measures adopted to contain the euro crisis as just or unjust ultimately depends on one s idea of justice. Moreover, if one believes that justice requires the reversal of existing hierarchies to improve the situation of the weak and disadvantaged, Viking ((C-438/05) [2007] E.C.R. I-10779) and Laval ((C-341/05) [2007] E.C.R. I-11767) might well be considered just decisions (the view espoused by Kukovec), contra the dominant perspective held by EU lawyers (represented in the book by Douglas-Scott). While contested, it seems not impossible to some extent at least to filter out through debate the more desirable and persuasive accounts of justice from the lesser ones. It is fortunate, therefore, and also highly enjoyable that the authors do not shy away from fiercely criticising each other s perspectives on the meaning and demands of justice. Particularly Neyer, who argues that the EU should be concerned about justice instead of democracy, attracts heavy criticism, not only for being oblivious to democracy being the cornerstone of justice (the critique of, among others, Nicol and Forst) but also on the ground that his right to justification does not add anything to our understanding of rights (Somek). Also Williams s earlier work on justice (The Ethos of Europe (Cambridge: Cambridge University Press, 2010)) does not persuade all (Nicol and Somek), and Williams himself seems to (implicitly) accept the criticism as well as his book s limitations in his contributions to this volume. If we should celebrate justice as something we argue about (Nicol, p.165) the book is as interesting as it is informative. It would be unreasonable to expect an edited volume to provide an exhaustive overview of the multitude of existing justice perspectives. There are two issues, however, related to the framing of the justice debate by the editors, which could and perhaps should have been addressed somewhat more elaborately. First, the editor s desire to move the justice debate to the EU, justified as it is, at times seems to result in a misunderstanding of what the debate about the correct locus of justice truly is about. Secondly, and here I am more hesitant, the perspective on the market might at times be overly negative. With respect to the first, the book s starting premises arguably ignore one the most important questions with respect to justice within the EU. According to the editors, justice cannot only be associated with the state; the EU is clearly at the very least a potential agent of (in)justice (this argument was set out by the editors on the Verfassungsblog in June 2015: see -there-a-new-european-deficit/#.vk vro_kvfiu [Accessed 11 July 2016]), and should, therefore, be seen as a suitable agent of justice (Kochenov, p.25). Very few would dispute these assumptions. The real debate, after all, is not about whether the parameters of justice should be used to assess the EU s (in)actions, or whether the EU has fostered or undermined justice. I wonder if there is anyone who would dispute that it is essential to discuss to what extent the EU produces outcomes that we conceive of as (un)just. What is contested, instead, is whether the EU possesses the same capacities for delivering (in)justices as other entities, in particular the state. Liberal-nationalists have suggested, after all, that liberal-democratic principles of justice can only be fully implemented within polities that have developed sufficiently deep communal ties and a strong sense of mutual trust, that is, the nation state (for an overview: W. Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship (Oxford: Oxford University Press, 2001), pp ). The real debate is not about whether or not the EU can contribute to justice, but to what extent. As long as this is misunderstood, the response to claims that the state remains indispensable for the pursuit of justice is likely to be inadequate. This is, with all respect, demonstrated by Williams s contribution to the volume, who has tried to counter some of those arguments. The EU, he claims, offers a form of society or community (p.34) and has unequivocally demonstrated to possess some of the capacities for redistribution of resources. If we then believe that our moral obligations to others should not be constrained by historically constructed state borders (p.36), the EU is a valid entity for pursuing justice. Those arguments, with all due respect, prove very little. Even the most ardent liberal-nationalist will not deny that we have moral obligations to those outside our state borders (D. Miller, On Nationality (Oxford: Oxford University Press, 1999)). Neither are they likely to disagree with the definition of the EU as a form of community or the finding that wealth redistribution has taken place

180 Book Reviews 619 within the EU. What matters is whether the sense of community within the EU is strong enough to sustain elaborate forms of social redistribution akin to those found in the Member States (which evidently are broader in scope than the EU s current schemes of redistribution). The issue is not sidelined completely in the book. Viehoff s and Nicolaïdis s chapter seeks to offer an analysis of the building blocks necessary for a persuasive account of social justice in a context beyond the state. Also Douglas-Scott and especially Wilkinson dwell upon the question to what extent the EU can agree on substantive matters of social justice. While it might be due mainly to the framing of the justice debate by the editors, one can still wonder if this issue receives sufficient notice in the book. The matter, after all, is of fundamental importance. If the solidarity among EU citizens is not as strong as that between the nationals of the Member States and if, for that reason, nationals of other Member States are not willing to make the self-sacrifices necessary to alleviate the hardship of their fellow non-national EU citizens, this has repercussions for the policies the EU can pursue. Policies that require the EU to engage in unforeseen redistributive practices, such as monetary union, might not only result in almost irremediable injustices but will also, as persuasively demonstrated by Wilkinson in his chapter, subordinate the political to the economical. Concerning my second point, the editors criticise EU legal scholarship as well as the EU more generally for being too market-oriented (Preface and Introduction). Kochenov, in addition, claims that the hijacking of the EU by the internal market has allowed for justice not being the centrepiece of the European project (p.27). This conception of the market being the antithesis of justice is not only espoused by the editors, but also by many of the authors. Wilkinson stresses the imbalance between the market and democracy; Holder argues that the market orientation undermines ecological justice within the EU; and Lyons, somewhat provokingly, suggests that the EU still considers potatoes to be more important than humanity. Taking into account some of the patent injustices created by economic and monetary integration, this tendency to blame the market is understandable. However, I am less certain whether such a negative perspective is always justified when considering the four freedoms. This is not only because these are based on a very specific understanding of justice, as highlighted by Somek (p.300; see also Walker, p.249), but also because the right to free movement more generally has provided citizens with the opportunity to pursue the good life elsewhere (See F. de Witte, Justice in the EU: The Emergence of Transnational Solidarity (Oxford: Oxford University Press, 2015)). Of course, the interpretation given to the free movement provisions has been far from uncontroversial, but to dismiss the value of the mobility rights almost in its entirety because there are certain cases (read: Viking and Laval) that are widely condemned seems rather premature. Our perspective on the free movement provisions ultimately also depends on the cases we select. It would not surprise me if many authors would consider an interpretation of the free movement provisions that allows same-sex couples to move to another Member State in order to get married there as just (for a recent analysis: M. van den Brink, What s in a Name Case? Some Lessons for the Debate on the Free Movement of Same-Sex Couples within the EU (2016) 17 German Law Journal, forthcoming). It seems, in other words, likely that it is not the market per se, but the specific scope and interpretation given to certain economic provisions that concerns many of the authors. While I share many of the sentiments present within the book, some of the contributions would have been more persuasive if they had distinguished more carefully between the different faces of the market. All in all, though, the book certainly provides a very stimulating debate and often does much more. The wealth of perspectives offered and the quality of many of the contributions is remarkable. The book is an interesting read and could not have been more timely, considering all the challenges the EU is currently facing. It is a must-read for anyone interested in the many different visions on justice within the

181 620 European Law Review EU, several of the EU s most profound problems, and, hopefully, some of the ways out of the crisis. Lastly, the book cover, which must be among the most creative a book on EU law has ever seen, is outstanding. Martijn van den Brink European University Institute

182 Table of Cases European Court of Justice and General Court: Numerical List of Cases (9/56) (42/59) (6/60) (14, 16, 17, 20, 24, 26 and 27/60 and 1/61) (7/61) (25/62) (26/62) (75/63) (6/64) (56/64) (41/69) (52/69) (77/69) (9/70) (11/70) (25/70) (6/73 and 7/73) (40/73) (181/73) (43/75) (48/75) (104/75) (46/76) (80/76) (85/76) Meroni v High Authority [ ] E.C.R. 133 ECJ , 333, 377 Société nouvelle des usines de Pontlieue Aciéries du Temple (SNUPAT) v High Authority [1961] E.C.R Humblet v Belgian State [1960] E.C.R ECJ Meroni & Co v High Authority of the European Coal and Steel Community [1961] E.C.R. 321 ECJ Commission of the European Communities v Italy [1961] E.C.R. 317; [1962] C.M.L.R. 39 ECJ Plaumann v Commission of the European Communities [1963] E.C.R. 95; [1964] C.M.L.R. 29 ECJ Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] E.C.R. 1; [1963] C.M.L.R. 105 ECJ Unger v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten [1964] E.C.R. 177; [1964] C.M.L.R. 319 ECJ Costa v Ente Nazionale per l Energia Elettrica (ENEL) [1964] E.C.R. 585; [1964] C.M.L.R. 425 ECJ Établissements Consten Sàrl v Commission of the European Communities (Consten-Grundig) [1966] E.C.R. 429; [1966] C.M.L.R. 418 ECJ ACF Chemiefarma NV v Commission of the European Communities [1970] E.C.R Geigy AG v Commission of the European Communities [1972] E.C.R. 787 ECJ Commission of the European Communities v Belgium [1970] E.C.R. 237; [1974] 1 C.M.L.R. 203 ECJ Grad v Finanzamt Traunstein [1970] E.C.R. 825; [1971] C.M.L.R. 1 ECJ Internationale Handelsgesellschaft mbh v Einfuhr-und Vorratsstelle fur Getreide und Futtermittel; Einfuhr und Vorratsstelle fur Getreide und Futtermittel v Firma Koster, Berodt & Co; Einfuhr und Vorratsstelle fur Getreide und Futtermittel v Firma Gunther Henck; Firma Ottoscheer v Einfuhr und Vorratsstelle fur Getreide und Futtermittel [1970] E.C.R. 1125; [1972] C.M.L.R. 255 ECJ , 496 Einfuhr- und Vorratsstelle für Getreide und Futtermittel v Köster and Berodt & Co [1970] E.C.R ECJ Istituto Chemioterapico Italiano SpA v Commission of the European Communities (Commercial Solvents) [1974] E.C.R. 223; [1974] 1 C.M.L.R. 309 ECJ Cooperatieve Vereniging Suiker Unie UA v Commission of the European Communities [1975] E.C.R. 1663; [1976] 1 C.M.L.R. 295 ECJ R&V Haegeman Sprl v Belgium [1974] E.C.R. 449; [1975] 1 C.M.L.R. 515 ECJ Defrenne v SA Belge de Navigation Aerienne (SABENA) [1981] 1 All E.R. 122; [1976] E.C.R. 455; [1976] 2 C.M.L.R. 98; [1976] I.C.R. 547 ECJ Belgium v Royer [1976] E.C.R. 497; [1976] 2 C.M.L.R. 619 ECJ Officier van Justitie v De Peijper [1976] E.C.R. 613; [1976] 2 C.M.L.R. 271 ECJ , 197 Bauhuis v Netherlands [1977] E.C.R. 5 ECJ North Kerry Milk Products Ltd v Minister for Agriculture and Fisheries [1977] E.C.R. 425 ECJ F Hoffmann La Roche & Co AG v Commission of the European Communities [1979] E.C.R. 461; [1979] 3 C.M.L.R. 211; [1980] F.S.R. 13 ECJ i

183 ii Table of Cases (38/77) (82/77) (7/78) (120/78) (148/78) (C-243/78) (C-251/78) (34/79) (138/79) (823/79) (155/80) (8/81) (44/81) (53/81) (62/81) (124/81) (283/81) (40/82) (174/82) (205/82) (72/83) (231/83) (238/83) (270/83) (294/83) (178/84) (238/84) (66/85) (80/85) (C-89/85) (223/85) Enka BV v Inspecteur der Invoerrechten en Accijnzen [1977] E.C.R. 2203; [1978] 2 C.M.L.R. 212 ECJ Openbaar Ministerie (Public Prosecutor) of the Kingdom of the Netherlands v Van Tiggele [1978] E.C.R. 25 ECJ R. v Thompson [1978] E.C.R ECJ Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein; sub nom Cassis de Dijon [1979] E.C.R. 649; [1979] 3 C.M.L.R. 494 ECJ , 151, 239, 521, 594 Pubblico Ministero v Ratti [1979] E.C.R. 1629; [1980] 1 C.M.L.R. 96 ECJ Simmenthal SpA v Commission of the European Communities [1980] E.C.R. 593 ECJ Denkavit Füttermittel GmbH v Minister für Ernahrung, Landwirtschaft und Forsten des Landes Nordrhein-Westfalen [1979] E.C.R. 3369; [1980] 3 C.M.L.R. 513; [1981] F.S.R. 53 ECJ R. v Henn (Maurice Donald) [1980] 2 W.L.R. 597; [1980] 2 All E.R. 166; [1979] E.C.R. 3795; [1980] 1 C.M.L.R. 246 ECJ Roquette Frères v Council of Ministers of the European Communities [1980] E.C.R ECJ Carciati, Criminal Proceedings against [1980] E.C.R. 2773; [1981] 2 C.M.L.R. 274 ECJ Oebel, Summary Proceedings against [1981] E.C.R ECJ Becker v Finanzamt Munster-Innenstadt [1982] E.C.R. 53; [1982] 1 C.M.L.R. 499 ECJ Germany v Commission of the European Communities [1982] E.C.R ECJ Levin v Staatssecretaris van Justitie; sub nom. Levin v Secretary of State for Justice [1982] E.C.R. 1035; [1982] 2 C.M.L.R. 454 ECJ Société anonyme de droit français Seco v Etablissement d assurance contre la vieillesse et l invalidité [1982] E.C.R. 223 ECJ Commission of the European Communities v United Kingdom [1983] E.C.R. 203; [1983] 2 C.M.L.R. 1 ECJ CILFIT v Ministry of Health [1982] E.C.R. 3415; [1983] 1 C.M.L.R. 472 ECJ Commission of the European Communities v United Kingdom [1982] E.C.R. 2793; [1982] 3 C.M.L.R. 497 ECJ Officier van Justitie v Sandoz BV [1983] E.C.R. 2445; [1984] 3 C.M.L.R. 43 ECJ (5th Chamber) , 150, 153 Deutsche Milchkontor GmbH v Germany [1983] E.C.R. 2633; [1984] 3 C.M.L.R. 586 ECJ Campus Oil Ltd v Minister for Industry and Energy [1984] E.C.R. 2727; [1984] 3 C.M.L.R. 544 ECJ , 148 Cullet v Centre Leclerc à Toulouse [1985] E.C.R. 305 ECJ Caisse d Allocations Familiales v Meade [1984] E.C.R Commission of the European Communities v France [1986] E.C.R. 273; [1987] 1 C.M.L.R. 401 ECJ Parti Écologiste Les Verts v European Parliament [1986] E.C.R. 1339; [1987] 2 C.M.L.R. 343 ECJ , 416, 489 Commission of the European Communities v Germany [1987] E.C.R. I-1227 ECJ Röser, Criminal Proceedings against [1986] E.C.R. 795 ECJ Lawrie-Blum v Land Baden-Wurttemberg [1986] E.C.R. 2121; [1987] 3 C.M.L.R. 389; [1987] I.C.R. 483 ECJ , 382 Nederlandse Bakkerij Stichting v Edah BV [1988] E.C.R 3359; [1988] 2 C.M.L.R. 113 ECJ A Ahlstrom Osakeyhtiö v Commission of the European Communities [1993] E.C.R. I-1307; [1993] 4 C.M.L.R. 407 ECJ (5th Chamber) Rijn-Schelde-Verolme (RSV) Machinefabrieken en Scheepswerven NV v Commission of the European Communities [1987] E.C.R ECJ

184 Table of Cases iii (314/85) (222/86) (62/86) (263/86) (302/86) (31/87) (46/87) (C-379/87) (C-5/88) (C-70/88) (215/88) (C-217/88) (C-249/88) (C-297/88) (C-331/88) (T-51/89) (C-113/89) (C-128/89) (C-190/89) (C-234/89) (C-260/89) (C-300/89) (C-360/89) (C-6/90) (C-41/90) (C-76/90) (C-159/90) (C-204/90) (C-269/90) (C-300/90) Firma Foto Frost v Hauptzollamt Lubeck-Ost [1987] E.C.R. 4199; [1988] 3 C.M.L.R. 57 ECJ UNECTEF v Heylens [1987] E.C.R ECJ AKZO v Commission of the European Communities [1991] E.C.R. I-3359; [1993] 5 C.M.L.R Belgium v Humbel [1988] E.C.R. 5365; [1989] 1 C.M.L.R. 393 ECJ Commission of the European Communities v Denmark [1988] E.C.R ECJ Gebroeders Beentjes BV v Netherlands [1988] E.C.R. 4635; [1990] 1 C.M.L.R. 287 ECJ (4th Chamber) , 167, 168 Hoechst AG v Commission of the European Communities [1989] E.C.R. 2859; [1991] 4 C.M.L.R. 410 ECJ Groener v Minister for Education [1989] E.C.R. 3967; [1990] 1 C.M.L.R. 401 ECJ Wachauf v Germany [1989] E.C.R. 2609; [1991] 1 C.M.L.R. 328 ECJ , 506 European Parliament v Council of Ministers of the European Communities [1990] E.C.R. I-2041; [1992] 1 C.M.L.R. 91 ECJ Casa Fleischhandels-GmbH v Bundesanstalt fur landwirtschaftliche Marktordnung [1989] E.C.R ECJ Commission of the European Communities v Germany [1990] E.C.R. I-2879; [1993] 1 C.M.L.R. 18 ECJ Commission of the European Communities v Belgium [1991] E.C.R. I-1275; [1993] 2 C.M.L.R. 533 ECJ Dzodzi v Belgium [1990] E.C.R. I-3763 ECJ R. v Ministry of Agriculture, Fisheries and Food Ex p. Federation Européene de la Santé Animale (FEDESA) [1990] E.C.R. I-4023; [1991] 1 C.M.L.R. 507 ECJ (5th Chamber) , 197 Tetra Pak Rausing SA v Commission of the European Communities [1990] E.C.R. II-309; [1991] 4 C.M.L.R. 334; [1991] F.S.R. 654 CFI Rush Portuguesa Lda v Office national d immigration [1990] E.C.R. I-1417; [1991] 2 C.M.L.R. 818 ECJ , 160 Commission of the European Communities v Italy [1990] E.C.R. I-3239; [1991] 3 C.M.L.R. 720 ECJ Marc Rich & Co AG v Societa Italiana Impianti SpA [1991] E.C.R. I-3855; [1992] 1 Lloyd s Rep. 342; [1991] E.C.R. I-3855; [1991] I.L.Pr Delimitis v Henninger Bräu AG [1991] E.C.R. I-935; [1992] 5 C.M.L.R. 210 ECJ , 209, 210 Elliniki Radiophonia Tileorassi AE (ERT) v Dimotiki Etairia Pliroforissis (DEP); Elliniki Radiophonia Tileorassi AE (ERT) v Sotirios Kouvelas [1991] E.C.R. I-2925; [1994] 4 C.M.L.R. 540 ECJ , 507 Commission of the European Communities v Council of the European Communities [1991] E.C.R. I-2867; [1993] 3 C.M.L.R. 359 ECJ Commission of the European Communities v Italy [1992] E.C.R. I-3401 ECJ , 168 Francovich v Italy [1991] E.C.R. I-5357; [1993] 2 C.M.L.R. 66; [1995] I.C.R. 722; [1992] I.R.L.R. 84 ECJ , 232 Hofner v Macrotron GmbH [1991] E.C.R. I-1979; [1993] 4 C.M.L.R. 306; (1991) 135 S.J.L.B. 54 ECJ (6th Chamber) Säger v Dennemeyer & Co Ltd [1991] E.C.R. I-4221; [1993] 3 C.M.L.R. 639 ECJ , 526 Society for the Protection of Unborn Children (Ireland) Ltd (SPUC) v Grogan [1991] E.C.R. I-4685; [1991] 3 C.M.L.R. 849 ECJ Bachmann v Belgium [1992] E.C.R. I-249; [1993] 1 C.M.L.R. 785 ECJ Technische Universität München v Hauptzollamt München-Mitte [1991] E.C.R. I-5469; [1994] 2 C.M.L.R. 187 ECJ Commission of the European Communities v Belgium [1992] E.C.R. I-305; [1995] Pens. L.R

185 iv Table of Cases (C-168/91) (C-241/91 P) (C-316/91) (C-320/91) (C-9/92) (C-11/92) (C-364/92) (C-32/93) (C-279/93) (C-324/93) (C-384/93) (C-433/93) (C-470/93) (T-521/93) (2/94) (C-51/94) (C-80/94) (C-84/94) (T-167/94) (C-237/94) (C-272/94) (C-28/95) (C-34/95) (C-52/95) (C-96/95) (C-120/95) Konstantinidis v Stadt Altensteig-Standesamt [1993] E.C.R. I-1191; [1993] 3 C.M.L.R. 401 ECJ Radio Telefis Eireann v Commission of the European Communities (Magill) [1995] E.C.R. I-743; [1995] 4 C.M.L.R. 718; [1995] All E.R. (E.C.) 416; [1995] E.M.L.R. 337; [1995] F.S.R. 530; [1998] Masons C.L.R. Rep. 58 ECJ , 213, 217, 247 European Parliament v Council of Ministers of the European Communities; sub nom European Development Fund, Re [1994] E.C.R. I-625; [1994] 3 C.M.L.R. 149 ECJ Corbeau, Criminal Proceedings against [1993] E.C.R. I-253; [1995] 4 C.M.L.R ECJ , 428 Commission of the European Communities v Greece [1993] E.C.R. I-4467; [1997] S.T.C. 601 ECJ R. v Secretary of State for Health Ex p. Gallaher [1993] E.C.R. I-3545 ECJ SAT Fluggesellschaft mbh v European Organisation for the Safety of Air Navigation (Eurocontrol) [1994] E.C.R. I-43; [1994] 5 C.M.L.R. 208 ECJ Webb v EMO Air Cargo (UK) Ltd [1994] Q.B. 718; [1994] 3 W.L.R. 941; [1994] 4 All E.R. 115; [1994] E.C.R. I-3567; [1994] 2 C.M.L.R. 729; [1994] I.C.R. 770; [1994] I.R.L.R. 482; (1994) 144 N.L.J ECJ (5th Chamber) Finanzamt Köln-Altstadt v Schumacker [1996] Q.B. 28; [1995] 3 W.L.R. 498; [1995] S.T.C. 306; [1995] E.C.R. I-225; [1996] 2 C.M.L.R. 450; [1995] All E.R. (E.C.) 319; [1995] Pens. L.R. 209 ECJ , 101 R. v Secretary of State for the Home Department Ex p. Evans Medical [1995] E.C.R. I-563; [1996] 1 C.M.L.R. 53 ECJ , 154 Alpine Investments BV v Minister van Financiën [1995] E.C.R. I-1141; [1995] 2 C.M.L.R. 209 ECJ Commission of the European Communities v Germany [1995] E.C.R. I-2303 ECJ Verein gegen Unwesen in Handel und Gewerbe Koln ev v Mars GmbH [1995] E.C.R. I-1923; [1995] 3 C.M.L.R. 1 ECJ Atlanta AG v Council of the European Union [1996] E.C.R. II Accession of the Community to the European Human Rights Convention, Re [1996] E.C.R. I-1788; [1996] E.C.R. I-1759; [1996] 2 C.M.L.R. 265 ECJ , 564 Commission of the European Communities v Germany [1995] E.C.R. I-3599 ECJ , 593, 594 Wielockx v Inspecteur der Directe Belastingen [1996] 1 W.L.R. 84; [1995] S.T.C. 876; [1995] E.C.R. I-2493; [1995] 3 C.M.L.R. 85; [1995] All E.R. (E.C.) 769; [1995] Pens. L.R. 203 ECJ United Kingdom v Council of the European Union [1996] E.C.R. I-5755; [1996] 3 C.M.L.R. 671; [1996] All E.R. (EC) 877; [1997] I.C.R. 443; [1997] I.R.L.R. 30 ECJ , 387 Nölle v Council and Commission of the European Communities [1995] E.C.R. II-2589 CFI O Flynn v Adjudication Officer [1996] E.C.R. I-2617; [1996] 3 C.M.L.R. 103; [1996] All E.R. (EC) 541; [1998] I.C.R. 608; (1997) 33 B.M.L.R. 54 ECJ (5th Chamber) Guiot, Criminal Proceedings against [1996] E.C.R. I-1905 ECJ , 160 Leur-Bloem v Inspecteur der Belastingdienst/Ondernemingen Amsterdam 2 [1997] E.C.R. I-4161; [1998] 1 C.M.L.R. 157 ECJ Konsumentombudsmannen v De Agostini [1997] E.C.R. I-3843; [1998] 1 C.M.L.R. 32 ECJ Commission of the European Communities v France [1995] E.C.R. I-4443 ECJ Commission of the European Communities v Germany [1997] E.C.R. I-1653 ECJ Decker v Caisse de maladie des employés privés [1998] E.C.R. I-1831; [1998] 2 C.M.L.R. 879 ECJ , 151, 154, 157

186 Table of Cases v (C-263/95) (C-265/95) (C-338/95) (C-391/95) (C-398/95) (C-85/96) (T-135/96) (C-158/96) (C-210/96) (C-249/96) (C-264/96) (C-274/96) (C-309/96) (C-348/96) (C-369/96) (C-7/97) (C-104/97 P) (C-162/97) (C-311/97) (C-378/97) (C-424/97) (C-35/98) (C-165/98) (C-214/98) (C-225/98) Germany v Commission of the European Communities [1998] E.C.R. I-441; [1998] 2 C.M.L.R ECJ Commission of the European Communities v France [1997] E.C.R. I-6959 ECJ , 152 Wiener SI GmbH v Hauptzollamt Emmerich [1997] E.C.R. I-6495; [1998] 1 C.M.L.R ECJ Van Uden Maritime BV (t/a Van Uden Africa Line) v Kommanditgesellschaft in Firma Deco-Line EU:C:1998:543; [1999] Q.B. 1225; [1999] 2 W.L.R. 1181; [1999] 1 All E.R. (Comm.) 385; [1998] E.C.R. I-7091; [1999] All E.R. (E.C.) 258; [1999] I.L.Pr. 73 ECJ Syndesmos ton en Elladi Touristikon kai Taxidiotikon Grafeion (SETTG) v Ergasias [1997] E.C.R. I-3091; [1998] 1 C.M.L.R. 420 ECJ Martínez Sala v Freistat Bayern [1998] E.C.R. I-2691 ECJ UEAPME v Council of the European Union [1998] E.C.R. II-2335; [1998] 3 C.M.L.R. 385 CFI Kohll v Union des caisses de maladie [1998] E.C.R. I-1931; [1998] 2 C.M.L.R. 928 ECJ , 151, 154, 156, Gut Springenheide GmbH v Oberkreisdirektor des Kreises Steinfurt - Amt fur Lebensmitteluberwachung [1998] E.C.R. I-4657; [1999] 1 C.M.L.R ECJ Grant v South West Trains Ltd [1998] E.C.R. I-621; [1998] 1 C.M.L.R. 993; [1998] All E.R. (EC) 193; [1998] C.E.C. 263; [1998] I.C.R. 449; [1998] I.R.L.R. 206; [1998] 1 F.L.R. 839; [1998] 1 F.C.R. 377; 3 B.H.R.C. 578; [1999] Pens. L.R. 69; [1998] Fam. Law 392; (1998) 162 J.P.N. 266 ECJ , 102, 103 ICI Plc v Colmer (Inspector of Taxes) [1999] 1 W.L.R. 108; [1998] S.T.C. 874; [1998] E.C.R. I-4695; [1998] 3 C.M.L.R. 293; [1998] All E.R. (EC) 585; [1998] C.E.C. 861; [1998] B.T.C. 304 ECJ Bickel, Criminal Proceedings against [1998] E.C.R. I-7637; [1999] 1 C.M.L.R. 348 ECJ Annibaldi v Sindaco del Comune di Guidonia [1997] E.C.R. I-7493; [1998] 2 C.M.L.R. 187 ECJ Calfa, Criminal Proceedings against [1999] E.C.R. I-11; [1999] 2 C.M.L.R. 1138; [1999] All E.R. (EC) 850; [1999] C.E.C. 477; [1999] I.N.L.R. 333; (1999) 96(19) L.S.G. 30 ECJ Arblade, Criminal Proceedings against [1999] E.C.R. I-8453; [2001] I.C.R. 434 ECJ , 159, 160, 163 Oscar Bronner GmbH & Co KG v Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co KG [1998] E.C.R. I-7791; [1999] 4 C.M.L.R. 112 ECJ , 247 Atlanta AG v Council of the European Union [1999] E.C.R. I-6983; [2001] 1 C.M.L.R. 20 ECJ (5th Chamber) Nilsson, Hagelgren and Arrborn, Criminal Proceedings against [1998] E.C.R. I Royal Bank of Scotland Plc v Greece [2000] S.T.C. 733; [1999] E.C.R. I-2651; [1999] 2 C.M.L.R. 973; [1999] C.E.C. 442 ECJ (5th Chamber) Wijsenbeek, Re Criminal Proceedings against [1999] E.C.R. I-6207; [2001] 2 C.M.L.R. 53; [2000] I.N.L.R. 336 ECJ Haim v Kassenzahnärztliche Vereinigung Nordrhein [2000] E.C.R. I-5123; [2002] 1 C.M.L.R. 11 ECJ Staatssecretaris van Financiën v Verkooijen [2001] E.C.R. I-4071; [2002] 1 C.M.L.R. 48 ECJ , 151 Mazzoleni, Criminal Proceedings against [2001] E.C.R. I-2189; [2003] 2 C.M.L.R. 10 ECJ , 161, 163 Commission of the European Communities v Greece [2000] E.C.R. I-9601 ECJ Commission of the European Communities v France [2000] E.C.R. I-7445 ECJ

187 vi Table of Cases (C-251/98) (C-281/98) (C-303/98) (C-358/98) (C-367/98) (C-368/98) (C-376/98) (C-379/98) (C-398/98) (C-478/98) (T-54/99) (C-110/99) (C-122/99 P) (C-157/99) (C-164/99) (C-173/99) (C-315/99 P) (C-350/99) (C-385/99) (C-401/99) (C-438/99) (C-453/99) (C-475/99) (C-11/00) Baars v Inspecteur der Belastingdienst Particulieren/Ondernemingen Gorinchem (C-251/98) [2000] E.C.R. I-2787; [2002] 1 C.M.L.R. 49; 2 I.T.L. Rep. 660 ECJ (5th Chamber) Angonese v Cassa di Risparmio di Bolzano SpA [2000] E.C.R. I-4139; [2000] 2 C.M.L.R. 1120; [2000] All E.R. (EC) 577; [2000] C.E.C. 374 ECJ Sindicato de Medicos de Asistencia Publica (SIMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana [2000] E.C.R. I-7963; [2001] 3 C.M.L.R. 42; [2001] All E.R. (EC) 609; [2001] I.C.R. 1116; [2000] I.R.L.R. 845 ECJ , 398 Commission of the European Communities v Italy (Sanitary Services) [2000] E.C.R. I-1255 ECJ Commission of the European Communities v Portugal [2002] E.C.R. 4731; [2002] 2 C.M.L.R. 48 ECJ Vanbraekel v Alliance nationale des mutualités chrétiennes (ANMC) [2001] E.C.R. I-5363; [2002] 2 C.M.L.R. 20 ECJ , 425, 426 Germany v European Parliament [2000] E.C.R. I-8419; [2000] 3 C.M.L.R. 1175; [2000] All E.R. (EC) 769 ECJ , 49, 50 PreussenElektra AG v Schleswag AG [2001] E.C.R. I-2099; [2001] 2 C.M.L.R. 36; [2001] All E.R. (EC) 330; [2001] C.E.C. 217; [2002] Env. L.R. 3 ECJ Commission of the European Communities v Greece [2001] E.C.R. I-7915; [2001] 3 C.M.L.R. 62 ECJ (5th Chamber) Commission of the European Communities v Belgium [2000] S.T.C. 830; [2000] E.C.R. I-7587; [2000] 3 C.M.L.R. 1111; [2000] B.T.C. 301; [2000] S.T.I ECJ , 157 max.mobil v Commission of the European Communities [2002] E.C.R. II-313; [2002] 4 C.M.L.R. 32 CFI Emsland-Stärke GmbH v Hauptzollamt Hamburg-Jonas [2000] E.C.R. I ECJ D v Council of the European Union [2001] E.C.R. I-4319; [2003] 3 C.M.L.R. 9; [2001] Emp. L.R. 956 ECJ Geraets-Smits v Stichting Ziekenfonds; Peerbooms v Stichting CZ Groep Zorgverzekeringen (C-157/99) [2001] E.C.R. I-5473; [2002] 2 C.M.L.R. 21 ECJ , 425, 426, 427 Portugaia Construcoes, Re [2002] E.C.R. I-787 ECJ (5th Chamber) , 161, 162, 167 R. (on the application of Broadcasting, Entertainment, Cinematographic and Theatre Union (BECTU)) v Secretary of State for Trade and Industry [2001] 1 W.L.R. 2313; [2001] E.C.R. I-4881; [2001] 3 C.M.L.R. 7; [2001] All E.R. (EC) 647; [2001] C.E.C. 276; [2001] I.C.R. 1152; [2001] I.R.L.R. 559; [2001] Emp. L.R ECJ (6th Chamber) Ismeri Europa Srl v Court of Auditors [2001] E.C.R. I-5281 ECJ Lange v Georg Schunemann GmbH [2001] E.C.R. I-1061; [2001] All E.R. (EC) 481; [2001] I.R.L.R. 244; [2001] Emp. L.R. 247 ECJ (5th Chamber) Müller-Fauré v Onderlinge Waarborgmaatschappij OZ Zorgverzekeringen UA [2003] E.C.R. I-4509; [2004] 2 C.M.L.R. 33 ECJ , 155, 427, 429 Thomsen v Amt für ländliche Räume Husum [2002] E.C.R. I-5775 ECJ Melgar v Ayuntamiento de Los Barrios [2001] E.C.R. I-6915; [2003] 3 C.M.L.R. 4; [2004] I.C.R. 610; [2001] I.R.L.R. 848; [2002] Emp. L.R. 11 ECJ (5th Chamber) Courage Ltd v Crehan; sub nom. Crehan v Courage Ltd [2002] Q.B. 507; [2001] 3 W.L.R. 1646; [2001] E.C.R. I-6297; [2002] U.K.C.L.R. 171; [2001] 5 C.M.L.R. 28; [2001] All E.R. (EC) 886; [2001] C.E.C. 297; [2002] I.C.R. 457 ECJ Ambulanz Glöckner v Landkreis Südwestpfalz [2001] E.C.R. I-8089; [2002] 4 C.M.L.R. 21 ECJ (5th Chamber) , 428 Commission of the European Communities v European Central Bank [2003] E.C.R. I-7147 ECJ

188 Table of Cases vii (C-20/00) (C-24/00) (C-74/00 P) (C-109/00) (C-112/00) (T-209/00) (C-320/00) (C-324/00) (C-416/00) (C-442/00) (C-465/00) (T-137/01) (C-168/01) (T-184/01 R) (C-194/01) (C-256/01) (C-342/01) (C-322/01) (C-361/01 P) (C-397/01) (C-418/01) (C-1/02) (T-22/02) (C-36/02) Booker Aquaculture Ltd (t/a Marine Harvest McConnell) v Scottish Ministers; Hydro Seafood GSP Ltd v Scottish Ministers [2003] E.C.R. I-7411; [2003] 3 C.M.L.R. 6; [2003] N.P.C. 89 ECJ Commission of the European Communities v France [2004] E.C.R. I-1277; [2004] 3 C.M.L.R. 25 ECJ , 153 Falck SpA v Commission of the European Communities [2002] E.C.R. I-7869 ECJ Tele Danmark A/S v Handels- og Kontorfunktionaerernes Forbund i Danmark [2001] E.C.R. I-6993; [2002] 1 C.M.L.R. 5; [2001] All E.R. (EC) 941; [2004] I.C.R. 610; [2001] I.R.L.R. 853; [2001] Emp. L.R ECJ (5th Chamber) Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich [2003] E.C.R. I-5659; [2003] 2 C.M.L.R. 34 ECJ , 173 Lamberts v European Ombudsman [2002] E.C.R. II-2203; [2003] 1 C.M.L.R. 32 CFI Lawrence v Regent Office Care Ltd [2002] E.C.R. I-7325; [2002] 3 C.M.L.R. 27; [2003] I.C.R. 1092; [2002] I.R.L.R. 822; [2002] Emp. L.R ECJ Lankhorst-Hohorst GmbH v Finanzamt Steinfurt [2003] S.T.C. 607; [2002] E.C.R. I-11779; [2003] 2 C.M.L.R. 22; [2003] B.T.C. 254; 5 I.T.L. Rep. 467; [2002] S.T.I ECJ (5th Chamber) , 45, 53, 56, , 60, 65, 66, 67, 68, 71, 157 Morellato v Comune di Padova [2003] E.C.R. I-9343; [2006] 1 C.M.L.R. 31 ECJ Caballero v Fondo de Garantia Salarial (FOGASA) [2002] E.C.R. I-11915; [2003] I.R.L.R. 115 ECJ Rechnungshof v Österreichischer Rundfunk [2003] E.C.R. I-4989; [2003] 3 C.M.L.R. 10 ECJ Stadtsportverband Neuss ev v Commission of the European Communities [2003] E.C.R. II-3103 CFI Bosal Holding BV v Staatssecretaris van Financien [2003] S.T.C. 1483; [2003] E.C.R. I-9409; [2003] 3 C.M.L.R. 22; [2003] All E.R. (EC) 959; [2003] B.T.C. 513; 6 I.T.L. Rep. 105; [2003] S.T.I ECJ (5th Chamber) IMS Health Inc v Commission of the European Communities [2001] E.C.R. II-3193; [2002] 4 C.M.L.R. 2 CFI Commission of the European Communities v Austria [2004] E.C.R. I-4579; [2004] Env. L.R. 48 ECJ Allonby v Accrington and Rossendale College [2004] E.C.R. I-873; [2004] 1 C.M.L.R. 35; [2005] All E.R. (EC) 289; [2004] I.C.R. 1328; [2004] I.R.L.R. 224; [2004] O.P.L.R. 83; [2004] Pens. L.R. 199 ECJ Merino Gomez v Continental Industrias del Caucho SA [2004] E.C.R. I-2605; [2004] 2 C.M.L.R. 3; [2005] I.C.R. 1040; [2004] I.R.L.R. 407 ECJ (6th Chamber) Deutscher Apothekerverband ev v 0800 DocMorris [2003] E.C.R. I-14887; [2005] 1 C.M.L.R. 46 ECJ Kik v OHIM [2003] E.C.R. I-8283; [2004] E.T.M.R. 30 ECJ , 184, 186, 191, , 198 Pfeiffer v Deutsches Rotes Kreuz Kreisverband Waldshut ev [2004] E.C.R. I-8835; [2005] 1 C.M.L.R. 44; [2005] I.C.R. 1307; [2005] I.R.L.R. 137 ECJ IMS Health GmbH & Co OHG v NDC Health GmbH & Co KG [2004] E.C.R. I-5039; [2004] 4 C.M.L.R. 28 ECJ , 213, 217, 246, 247 Borgmann GmbH & Co KG v Hauptzollamt Dortmund [2004] E.C.R. I-3219 ECJ Sumitomo Chemical Co Ltd v Commission of the European Communities [2005] E.C.R. II-4065; [2006] 4 C.M.L.R. 3 CFI Omega Spielhallen- und Automatenaufstellungs GmbH v Bundesstadt Bonn [2004] E.C.R. I-9609; [2005] 1 C.M.L.R. 5; [2005] C.E.C. 391 ECJ (1st Chamber) , 505

189 viii Table of Cases (C-41/02) (C-65/02 P) (C-116/02) (C-148/02) (C-151/02) (C-159/02) (C-255/02) (C-263/02 P) (C-313/02) (C-319/02) (C-464/02) (C-12/03 P) (C-60/03) (C-105/03) (C-110/03) (C-147/03) (C-160/03) (C-209/03) (C-446/03) (C-540/03) (C14/04) (C-27/04) (C-94/04) Commission of the European Communities v Netherlands [2004] E.C.R. I-11375; [2006] 2 C.M.L.R. 11 ECJ (3rd Chamber) Thyssenkrupp Stainless GmbH v Commission of the European Communities [2005] E.C.R. I-6773; [2005] 5 C.M.L.R. 16 ECJ (1st Chamber) Erich Gasser GmbH v MISAT Srl [2005] Q.B. 1; [2004] 3 W.L.R. 1070; [2005] 1 All E.R. (Comm) 538; [2004] 1 Lloyd s Rep. 222; [2003] E.C.R. I-14693; [2005] All E.R. (EC) 517; [2004] I.L.Pr. 7 ECJ Garcia Avello v Belgium [2003] E.C.R. I-11613; [2004] 1 C.M.L.R. 1; [2004] All E.R. (EC) 740 ECJ Landeshauptstadt Kiel v Jaeger [2003] E.C.R. I-8389; [2003] 3 C.M.L.R. 16; [2004] All E.R. (EC) 604; [2004] I.C.R. 1528; [2003] I.R.L.R. 804; (2004) 75 B.M.L.R. 201 ECJ , 398 Turner v Grovit [2004] E.C.R. I-3565; [2005] 1 A.C. 101; [2004] 3 W.L.R. 1193; [2004] 2 All E.R. (Comm) 381; [2004] 2 Lloyd s Rep. 169; [2004] E.C.R. I-3565; [2004] 1 C.L.C. 864; [2004] All E.R. (EC) 485; [2004] I.L.Pr. 25; [2005] I.C.R. 23; [2004] I.R.L.R. 899 ECJ Halifax Plc v Commissioners of Customs and Excise [2006] E.C.R. I-1609; [2006] 2 C.M.L.R. 36 ECJ Commission of the European Communities v Jégo-Quéré et Cie SA [2005] Q.B. 237; [2005] 2 W.L.R. 179; [2004] E.C.R. I-3425; [2004] 2 C.M.L.R. 12; [2004] All E.R. (EC) 983; [2004] C.E.C. 284 ECJ (6th Chamber) Wippel v Peek & Cloppenburg GmbH & Co KG [2004] E.C.R. I-9483; [2005] 1 C.M.L.R. 9; [2005] I.C.R. 1604; [2005] I.R.L.R. 211 ECJ Manninen, Proceedings brought by [2004] E.C.R. I-7477; [2004] 3 C.M.L.R. 40 ECJ Commission of the European Communities v Denmark [2005] E.C.R. I-7929; [2006] 2 C.M.L.R. 14 ECJ (1st Chamber) Commission of the European Communities v Tetra Laval BV [2005] E.C.R. I-987; [2005] 4 C.M.L.R. 8; [2005] All E.R. (EC) 1059 ECJ , 215 Wolff & Müller GmbH & Co KG v Pereira Félix [2004] E.C.R. I-9553; [2005] 1 C.M.L.R. 21 ECJ Criminal Proceedings against Pupino [2006] Q.B. 83; [2005] 3 W.L.R. 1102; [2005] E.C.R. I-5285; [2005] 2 C.M.L.R. 63; [2006] All E.R. (EC) 142; [2006] C.E.C. 448 ECJ Belgium v Commission of the European Communities [2005] E.C.R. I-2801; [2006] 2 C.M.L.R. 5 ECJ (3rd Chamber) Commission of the European Communities v Austria [2005] E.C.R. I-5969; [2006] 3 C.M.L.R. 39; [2005] 3 C.M.L.R. 23; [2005] C.E.C. 758 ECJ (2nd Chamber) , 156 Spain v Eurojust [2005] E.C.R. I-2077 ECJ , 184, 185, 187, R. (on the application of Bidar) v Ealing LBC [2005] E.C.R. I-2119; [2005] 2 C.M.L.R. 3 ECJ Marks & Spencer Plc v Halsey (Inspector of Taxes) [2006] Ch. 184; [2006] 2 W.L.R. 250; [2006] S.T.C. 237; [2005] E.C.R. I-10837; [2006] 1 C.M.L.R. 18; [2006] All E.R. (EC) 255; [2006] C.E.C. 299; [2006] B.T.C. 318; 8 I.T.L. Rep. 358; [2006] S.T.I. 41 ECJ , 157 European Parliament v Council (Family reunification) [2006] E.C.R I-5769; [2006] 3 C.M.L.R. 28 ECJ , 501 Dellas v Premier Ministre; sub nom. Dellas v Secretariat General du Gouvernement [2005] E.C.R. I-10253; [2006] 2 C.M.L.R. 2; [2006] C.E.C. 328; [2006] I.R.L.R. 225 ECJ (2nd Chamber) Commission of the European Communities v Council of the European Communities [2004] E.C.R. I-6649 ECJ Cipolla v Fazari; Macrino v Meloni (C-202/04) [2006] E.C.R. I-11421; [2007] 4 C.M.L.R. 8; [2007] All E.R. (EC) 699 ECJ

190 Table of Cases ix (C-131/04) (C-144/04) (C-145/04) (C-161/04) (T-201/04) (C-280/04) (C-295/04) (C-300/04) (C-317/04) (C-344/04) (C-372/04) (T-474/04) (C-496/04) (C-524/04) (C-39/05) (C-51/05) (C-54/05) (C-112/05) (C-124/05) (C-154/05) (T-185/05) (C-275/05) (C-341/05) (C-391/05) (T-432/05) Robinson-Steele v RD Retail Services Ltd; Caulfield v Hanson Clay Products Ltd (C-257/04); Clarke v Frank Staddon Ltd (C-257/04) [2006] E.C.R. I-2531; [2006] 2 C.M.L.R. 34; [2006] All E.R. (EC) 749; [2006] C.E.C. 771; [2006] I.C.R. 932; [2006] I.R.L.R. 386 ECJ (1st Chamber) Mangold v Helm [2005] E.C.R. I-9981; [2006] 1 C.M.L.R. 43; [2006] All E.R. (EC) 383; [2006] C.E.C. 372; [2006] I.R.L.R. 143 ECJ Spain v United Kingdom [2006] E.C.R. I-7917; [2007] 1 C.M.L.R. 3; [2007] All E.R. (EC) 486 ECJ Austria v European Parliament and Council of the European Union [2006] E.C.R. I-7183 ECJ Microsoft Corp v Commission of the European Communities [2007] E.C.R. II-3601; [2007] 5 C.M.L.R. 11 CFI , 213, 215, 218, 249 Jyske Finans A/S v Skatteministeriet [2005] E.C.R. I-10683; [2006] C.E.C. 404 ECJ Manfredi v Lloyd Adriatico Assicurazioni SpA; Cannito v Fondiaria Sai SpA; Tricarico v Assitalia SpA; Murgulo v Assitalia SpA [2007] Bus. L.R. 188; [2006] E.C.R. I-6619; [2007] R.T.R. 7; [2006] 5 C.M.L.R. 17; [2007] All E.R. (EC) 27 ECJ (3rd Chamber) , 410 Eman v College van Burgemeester en Wethouders van den Haag [2006] E.C.R. I-8055; [2007] 1 C.M.L.R. 4; [2007] All E.R. (EC) 486 ECJ European Parliament v Council of the European Union [2006] E.C.R. I-4721; [2006] 3 C.M.L.R. 9; [2007] All E.R. (EC) 278 ECJ R. (on the application of International Air Transport Association (IATA)) v Department of Transport [2006] E.C.R. I-403; [2006] 2 C.M.L.R. 20 ECJ R. (on the application of Watts) v Bedford Primary Care Trust [2006] Q.B. 667; [2006] 3 W.L.R. 213; [2006] E.C.R. I-4325; [2006] 3 C.M.L.R. 5; [2006] All E.R. (EC) 835; [2006] C.E.C. 884; (2006) 90 B.M.L.R. 150 ECJ , 155, 425, 426, Pergan Hilfsstoffe für industrielle Prozesse GmbH v Commission [2007] E.C.R. II-4225; [2008] 4 C.M.L.R. 4 CFI Slob v Productschap Zuivel [2006] E.C.R. I-8257 ECJ Test Claimants in the Thin Cap Group Litigation v IRC [2007] S.T.C. 906; [2007] E.C.R. I-2107; [2007] 2 C.M.L.R. 31; [2008] B.T.C. 348; 9 I.T.L. Rep. 877; [2007] S.T.I. 538 ECJ (Grand Chamber) , 157 Turco v Council of the European Union [2008] E.C.R. I-4723; [2008] 3 C.M.L.R. 17 ECJ , 200 Duyster v Commission of the European Communities Unreported 13 December 2007 ECJ Commission of the European Communities v Finland [2007] E.C.R. I-2473; [2007] 2 C.M.L.R. 33 ECJ Commission of the European Communities v Germany [2007] E.C.R. I-8995; [2008] 1 C.M.L.R. 25 ECJ (Grand Chamber) Federatie Nederlandse Vakbeweging (FNV) v Netherlands [2006] E.C.R. I-3423; [2006] 2 C.M.L.R. 46; [2006] All E.R. (EC) 913; [2006] C.E.C. 797; [2006] I.C.R. 962; [2006] I.R.L.R. 561 ECJ (1st Chamber) Kersbergen-Lap v Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen [2006] E.C.R. I-6249 ECJ Italy v Commission of the European Communities [2008] E.C.R. II-3207; [2009] 1 C.M.L.R. 34 ECJ , 186 Kibler v Land Baden-Württemberg [2006] E.C.R. I ECJ Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet [2007] E.C.R. I-11767; [2008] 2 C.M.L.R. 9 ECJ , 163, 165, 166, , 440, 441, 442, 618, 619 Jan de Nul NV v Hauptzollamt Oldenburg [2007] E.C.R. I-1793 ECJ EMC Development AB v European Commission [2010] E.C.R. II-1629; [2010] 5 C.M.L.R. 13 GC (5th Chamber)

191 x Table of Cases (C-438/05) (C-464/05) (C-465/05) (C-37/06 and C-58/06) (C-116/06) (C-227/06) (C-244/06) (C-265/06) (C-267/06) (C-345/06) (C-346/06) (C-409/06) (C-468/06) (C-500/06) (C-501/06 P) (C-520/06) (C-531/06) (C-85/07) (C-141/07) (C-147/07) (C-157/07) (C-169/07) (C-171/07) (C-185/07) International Transport Workers Federation and Finnish Seamen s Union v Viking Line ABP [2007] E.C.R I-10779; [2008] 1 C.M.L.R. 51; [2008] All E.R. (EC) 127; [2008] C.E.C. 332; [2008] I.C.R. 741; [2008] I.R.L.R. 143 ECJ (Grand Chamber) , 165, 166, 172, , 441, 442, 618, 619 Geurts v Administratie van de BTW, Registratie en Domeinen [2007] E.C.R. I-9325; [2008] 1 C.M.L.R. 29 ECJ Commission of the European Communities v Italy; sub nom. Private Security Guards, Re [2007] E.C.R. I-11091; [2008] 2 C.M.L.R. 3 ECJ Viamex Agrar Handels GmbH v Hauptzollamt Hamburg-Jonas [2008] E.C.R. I-69 ECJ Kiiski v Tampereen Kaupunki [2007] E.C.R. I-7643; [2008] 1 C.M.L.R. 5; [2008] C.E.C. 199 ECJ (4th Chamber) Commission of the European Communities v Belgium [2008] E.C.R. I , 523 Dynamic Medien Vertriebs GmbH v Avides Media AG [2008] E.C.R. I-505; [2008] 2 C.M.L.R. 23; [2009] All E.R. (EC) 1098 ECJ (3rd Chamber) Commission of the European Communities v Portugal [2008] E.C.R. I-2245; [2008] 2 C.M.L.R. 41 ECJ (3rd Chamber) Maruko v Versorgungsanstalt der Deutschen Buhnen [2008] E.C.R. I-1757; [2008] 2 C.M.L.R. 32; [2008] All E.R. (EC) 977; [2008] I.R.L.R. 450; [2008] Pens. L.R. 223 ECJ (Grand Chamber) Heinrich, Proceedings brought by [2009] E.C.R. I-1659; [2009] 3 C.M.L.R. 7 ECJ Rüffert v Land Niedersachsen [2008] E.C.R. I-1989; [2008] 2 C.M.L.R. 39 ECJ , 164, 166, 169, 170 Winner Wetten GmbH v Burgermeisterin der Stadt Bergheim [2010] E.C.R. I-8015; [2011] 1 C.M.L.R. 21 ECJ (Grand Chamber) Sot Lelos kai Sia EE v GlaxoSmithKline [2008] E.C.R. I-7139; [2008] 5 C.M.L.R. 20 ECJ Corporación Dermoestética SA v To Me Group Advertising Media [2008] E.C.R. I-5785; [2008] 3 C.M.L.R. 33 ECJ GlaxoSmithKline Services Unlimited (Glaxo Spain) [2009] E.C.R. I-9291; [2010] 4 C.M.L.R. 2 ECJ , 208 Stringer v Revenue and Customs Commissioners; Schultz-Hoff v Deutsche Rentenversicherung Bund (C-350/06) [2009] E.C.R. I-179; [2009] 2 C.M.L.R. 27; [2009] All E.R. (EC) 906; [2009] I.C.R. 932; [2009] I.R.L.R. 214 ECJ (Grand Chamber) Commission of the European Communities v Italy [2009] E.C.R. I-4103; [2009] All E.R. (EC) 1141 ECJ Commission of the European Communities v Italy [2007] E.C.R. I-194 ECJ Commission of the European Communities v Germany [2008] E.C.R. I-6935; [2008] 3 C.M.L.R. 48 ECJ (4th Chamber) , 153, 154 Commission of the European Communities v France [2008] E.C.R. I-20 ECJ Finanzamt für Körperschaften III in Berlin v Krankenheim Ruhesitz [2008] E.C.R. I-8061; [2009] All E.R. (EC) 513 ECJ Hartlauer Handelsgesellschaft mbh v Wiener Landesregierung [2009] E.C.R. I-1721; [2009] 3 C.M.L.R. 5 ECJ , 164 Apotherkammer des Saarlandes v Saarland [2009] E.C.R. I-4171; [2009] 3 C.M.L.R. 31 ECJ , 154 Allianz SpA (formerly Riunione Adriatica di Sicurta SpA) v West Tankers Inc; Front Comor, The; sub nom. West Tankers Inc v Allianz SpA (formerly Riunione Adriatica di Sicurta SpA) EU:C:2009:69; [2009] 1 A.C. 1138; [2009] 3 W.L.R. 696; [2009] 1 All E.R. (Comm) 435; [2009] 1 Lloyd s Rep. 413; [2009] E.C.R. I-663; [2009] 1 C.L.C. 96; [2009] All E.R. (EC) 491; [2009] C.E.C. 619; [2009] I.L.Pr. 20; 2009 A.M.C ECJ (Grand Chamber) , 580, 581, 582, , 585, 586, 587, 588

192 Table of Cases xi (C-187/07) (C-213/07) (C-233/07) (C-264/07) (C-271/07) (T-308/07) (C-316/07) (C-318/07) (C-330/07) (C-335/07) (C-337/07) (C-339/07) (T-342/07) (C-390/07) (C-427/07) (C-438/07) (C-441/07 P) (C-446/07) (C-516/07) (C-518/07) (C-519/07 P) (C-530/07) (C-555/07) (C-570/07) (1/08) (C-22/08) (C-58/08) (C-67/08) (C-73/08) (C-76/08) (C-101/08) (C-147/08) (C-174/08) Endendijk, Criminal Proceedings against [2008] E.C.R. I-2115 ECJ Michaniki AE v Ethniko Simvoulio Radiotileorasis [2008] E.C.R. I-9999; [2010] 1 C.M.L.R. 43 ECJ Commission of the European Communities v Portugal [2008] E.C.R. I-70 ECJ , 271 Commission of the European Communities v Greece [2008] E.C.R. I-22 ECJ Commission of the European Communities v Belgium [2008] E.C.R. I Tegebauer v European Parliament [2011] E.C.R. II-279 CFI Stoss v Wetteraukreis [2010] E.C.R. I-8069; [2011] 1 C.M.L.R. 20 ECJ Persche v Finanzamt Lüdenscheid [2009] E.C.R. I-359; [2009] 2 C.M.L.R. 32 ECJ Jobra Vermögensverwaltungs-Gesellschaft mbh v Finanzamt Amstetten Melk Scheibbs [2008] E.C.R I-9099; [2009] 1 C.M.L.R. 41 ECJ Commission of the European Communities v Finland [2009] E.C.R. I-9459 ECJ , 271 Altun v Stadt Boblingen [2008] E.C.R. I ECJ Seagon v Deko Marty Belgium NV [2009] 1 W.L.R. 2168; [2009] Bus. L.R. 1151; [2009] E.C.R. I-767; [2009] B.C.C. 347; [2009] I.L.Pr. 25 ECJ (1st Chamber) Ryanair Holdings Plc v Commission of the European Communities [2010] E.C.R. II-3457; [2011] 4 C.M.L.R. 4 CFI , 206, 207 Commission of the European Communities v United Kingdom [2009] E.C.R. I-214 ECJ , 271 Commission of the European Communities v Ireland [2009] E.C.R. I-6277 ECJ Commission of the European Communities v Sweden [2009] E.C.R. I-9517 ECJ , 271 European Commission v Alrosa Co Ltd [2010] 5 C.M.L.R. 11; [2011] All E.R. (EC) 1; [2011] Bus. L.R. D74 ECJ (Grand Chamber) , 248 Severi v Regione Emilia Romagna [2009] E.C.R. I-8041; [2009] E.T.M.R. 64 ECJ Commission of the European Communities v Spain [2009] E.C.R. I-76 ECJ European Commission v Germany [2010] E.C.R. I-1885; [2010] 3 C.M.L.R. 3 ECJ (Grand Chamber) Commission of the European Communities v Koninklijke Friesland Campina NV [2009] E.C.R. I-8495; [2010] 1 C.M.L.R. 13 ECJ Commission of the European Communities v Portugal [2009] E.C.R. I-78 ECJ Kücükdeveci v Swedex GmbH & Co KG [2010] 2 C.M.L.R. 33; [2011] 2 C.M.L.R. 27; [2010] All E.R. (EC) 867; [2011] C.E.C. 3; [2010] I.R.L.R. 346 ECJ (Grand Chamber) , 106 Blanco Pérez v Consejería de Salud y Servicios Sanitarios [2010] E.C.R. I-4629; [2010] 3 C.M.L.R. 37 ECJ , 519 GATS Agreements, Re [2009] E.C.R. I-11129; [2010] 2 C.M.L.R. 13 ECJ (Grand Chamber) Vatsouras v Arbeitsgemeinschaft (ARGE) Nurnberg 900 [2009] E.C.R. I-4585; [2009] All E.R. (EC) 747; [2009] C.E.C ECJ (3rd Chamber) , 382 Vodafone Ltd v Secretary of State for Business, Enterprise and Regulatory Reform [2010] 3 C.M.L.R. 44; [2010] All E.R. (EC) 741 ECJ (Grand Chamber) Block v Finanzamt Kaufbeuren [2009] E.C.R. I-883; [2009] 2 C.M.L.R. 39 ECJ Bressol v Gouvernement de la Communauté Française [2010] 3 C.M.L.R. 20; [2011] C.E.C. 80 ECJ (Grand Chamber) , 148, 154, 156 Commission of the European Communities v Malta [2009] E.C.R. I-8213 ECJ Audiolux SA v Groupe Bruxelles Lambert SA (GBL) [2009] E.C.R. I-9823; [2010] 1 C.M.L.R. 39 ECJ Römer v Freie und Hansestadt Hamburg [2013] 2 C.M.L.R. 11; [2011] Eq. L.R. 921 ECJ (Grand Chamber) , 103 NCC Construction Danmark A/S v Skatteministeriet [2009] E.C.R. I-10567; [2010] B.V.C ECJ

193 xii Table of Cases (C-175/08) (C-201/08) (C-203/08) (C-211/08) (C-252/08) (C-258/08) (C-271/08) (C-280/08 P) (C-328/08) (C-330/08) (C-331/08) (C-346/08) (C-366/08) (C-384/08) (C-400/08) (C-402/08) (C-417/08) (C-422/08) (C-458/08) (C-512/08) (C-515/08) (C-573/08) (C-578/08) (C-20/09) (C-34/09) (C-47/09) (C-50/09) (C-52/09) (C-64/09) Abdulla v Germany; Hasan v Germany (C-176/08); Adem v Germany (C-178/08); Jamal v Germany (C-179/08) [2010] E.C.R. I-1493; [2011] Q.B. 46; [2010] 3 W.L.R. 1624; [2010] All E.R. (EC) 799; [2011] I.N.L.R. 235 ECJ (Grand Chamber) Plantanol GmbH & Co KG v Hauptzollamt Darmstadt [2009] E.C.R. I-8343 ECJ , 282 Sporting Exchange Ltd (t/a Betfair) v Minister van Justitie [2010] E.C.R. I-4695; [2010] 3 C.M.L.R. 41; [2011] C.E.C. 313 ECJ European Commission v Spain; sub nom. Medical Expenses, Re EU:C:2010:340; [2010] 3 C.M.L.R. 48; [2011] All E.R. (EC) 285; [2011] C.E.C. 645 ECJ (Grand Chamber) Commission of the European Communities v Malta [2009] E.C.R. I-159 ECJ Ladbrokes Betting & Gaming Ltd v Stichting de Nationale Sporttotalisator [2010] 3 C.M.L.R. 40; [2013] All E.R. (EC) 62; [2011] C.E.C. 212 ECJ Commission of the European Communities v Germany [2010] E.C.R. I-7091; [2011] All E.R. (EC) 912 ECJ Deutsche Telekom AG v Commission of the European Communities [2010] E.C.R. I-9555; [2010] 5 C.M.L.R. 27 ECJ , 210 Commission of the European Communities v Finland [2008] E.C.R. I-200 ECJ Commission of the European Communities v France [2008] E.C.R. I-191 ECJ Commission of the European Communities v Luxembourg [2009] E.C.R. I-45 ECJ Commission of the European Communities v United Kingdom Unreported 22 April 2010 ECJ Zentrale zur Bekampfung unlauteren Wettbewerbs ev v Adolf Darbo AG [2009] E.C.R. I-8439 ECJ , 594 Attanasio Group Srl v Comune di Carbognano [2010] E.C.R. I-2055; [2010] 3 C.M.L.R. 6 ECJ , 154 Commission of the European Communities v Spain [2011] E.C.R. I-1915; [2011] 2 C.M.L.R. 50 ECJ (2nd Chamber) Commission of the European Communities v Slovenia [2009] E.C.R. I-34 ECJ Commission of the European Communities v United Kingdom [2009] E.C.R. I-106 ECJ Commission of the European Communities v Austria [2009] E.C.R. I Commission of the European Communities v Portugal [2010] E.C.R. I ECJ European Commission v France [2011] 1 C.M.L.R. 30; [2011] All E.R. (EC) 818 ECJ (Grand Chamber) , 426 Santos Palhota, Criminal Proceedings against [2010] E.C.R. I-9133; [2011] 1 C.M.L.R. 34 ECJ Commission of the European Communities v Italy [2009] E.C.R. I-217 ECJ Chakroun v Minister van Buitenlandse Zaken [2010] E.C.R. I-1839; [2010] 3 C.M.L.R Commission of the European Communities v Portugal [2011] E.C.R. I-2637 ECJ Zambrano v Office National de l Emploi (ONEm) [2012] Q.B. 265; [2012] 2 W.L.R. 886; [2011] E.C.R. I-1177; [2011] 2 C.M.L.R. 46; [2011] All E.R. (EC) 491; [2011] 2 F.C.R. 491; [2011] Imm. A.R. 521; [2011] I.N.L.R. 481 ECJ (Grand Chamber) , 507, 512 Commission of the European Communities v Italy [2010] E.C.R. I-12083; [2011] E.T.M.R Commission of the European Communities v Ireland EU:C:2011:109; [2011] E.C.R. I-873; [2011] P.T.S.R ECJ , 231, 271 Konkurrensverket v TeliaSonera Sverige AB [2011] E.C.R. I-527; [2011] 4 C.M.L.R. 18 ECJ , 210, 212 Commission of the European Communities v France Unreported 15 April 2010 ECJ

194 Table of Cases xiii (C-108/09) (C-137/09) (C145/09) (C-164/09) (C-173/09) (C-208/09) (C-232/09) (C-279/09) (C-335/09 P) (C-338/09) (C-348/09) (C-351/09) (C-352/09 P) (C-360/09) (C-367/09) (C-391/09) (C-404/09) (C-428/09) (T-458/09) (C-481/09) (C-512/09) (C-526/09) (C-542/09) (C-49/10) (C-72/10) (C-130/10) (C-188/10) (C-209/10) (C-265/10) Ker-Optika bt v ANTSZ Del-dunantuli Regionalis Intezete [2010] E.C.R. I-12213; [2011] 2 C.M.L.R Josemans v Burgemeester van Maastricht [2011] 2 C.M.L.R. 19 ECJ (2nd Chamber) Land of Baden-Württemberg v Tsakouridis EU:C:2010:322; [2011] 2 C.M.L.R. 11; [2013] All E.R. (EC) 183; [2011] C.E.C. 714; [2011] Imm. A.R. 276; [2011] I.N.L.R. 415 ECJ (Grand Chamber) , 560, 562, 570, 571 Commission of the European Communities v Italy Unreported 11 November 2010 ECJ Elchinov v Natsionalna Zdravnoosiguritelna Kasa EU:C:2010:581; [2011] P.T.S.R. 1308; [2011] 1 C.M.L.R. 29; [2011] All E.R. (EC) 767 ECJ (Grand Chamber) Sayn-Wittgenstein v Landeshauptmann von Wien [2010] E.C.R. I-13693; [2011] 2 C.M.L.R. 28 ECJ , 189, 505 Danosa v LKB Lizings SIA [2010] E.C.R. I-11405; [2011] 2 C.M.L.R. 2; [2011] Eq. L.R. 48 ECJ (2nd Chamber) DEB Deutsche Energiehandels- und Beratungsgesellschaft mbh v Germany [2010] E.C.R. I-13849; [2011] 2 C.M.L.R. 21 ECJ Commission of the European Communities v Poland EU:C:2012:385 ECJ Yellow Cab Verkehrsbetriebs GmbH v Landeshauptmann von Wien [2010] E.C.R. I-13927; [2011] 2 C.M.L.R. 23 ECJ PI v Oberbürgermeisterin der Stadt Remscheid EU:C:2012:300; [2012] Q.B. 799; [2012] 3 W.L.R. 662; [2012] 3 C.M.L.R. 13; [2013] All E.R. (EC) 218; [2013] C.E.C. 142; [2012] Imm. A.R. 917; [2013] I.N.L.R. 171 ECJ (Grand Chamber) , 570 Commission of the European Communities v Malta Unreported 22 December 2010 ECJ ThyssenKrupp Nirosta GmbH (formerly ThyssenKrupp Stainless AG) v European Commission [2013] 4 C.M.L.R. 19 ECJ (Grand Chamber) Pfleiderer AG v Bundeskartellamt [2011] E.C.R. I-5161; [2011] 5 C.M.L.R. 7; [2011] All E.R. (EC) 979; [2012] C.E.C. 50 ECJ (Grand Chamber) Belgisch Interventie- en Restitutiebureau v SGS Belgium NV [2010] E.C.R. I-10761; [2011] 1 C.M.L.R. 46 ECJ Runevič-Vardyn v Vilniaus Miesto Savivaldybes Administracija [2011] E.C.R. I-3787; [2011] 3 C.M.L.R. 13 ECJ , 189 Commission of the European Communities v Spain EU:C:2011:768 ECJ Union Syndicale Solidaires Isere v Premier Ministre [2010] E.C.R. I-9961; [2011] 1 C.M.L.R. 38; [2011] C.E.C. 847; [2011] I.R.L.R. 84 ECJ (2nd Chamber) , 386 Slovak Telekom v Commission of the European Communities EU:T:2012:145; [2012] 4 C.M.L.R. 28 GC (8th Chamber) Commission of the European Communities v Czech Republic Unreported 30 September 2010 ECJ Commission of the European Communities v Greece [2010] E.C.R. I-96; (C-600/12) EU:C:2014:2086; (C-378/13) EU:C:2014:2405; (C-677/13) EU:C:2014:2433 ECJ Commission of the European Communities v Portugal Unreported 2 December 2010 ECJ , 271 European Commission v Netherlands (Funding for higher education) EU:C:2012:346; [2012] 3 C.M.L.R. 27 ECJ (2nd Chamber) Commission of the European Communities v Slovenia EU:C:2010:597 ECJ Costa, Criminal Proceedings against EU:C:2012:80 ECJ , 280 Parliament v Council (Restrictive measures against individuals) EU:C:2012: Proceedings against Melki [2010] E.C.R. I-5667; [2011] 3 C.M.L.R. 45; [2012] C.E.C. 567 ECJ (Grand Chamber) Post Danmark A/S v Konkurrencerådet (Post Danmark I) [2012] EU:C:2012:172; [2012] 4 C.M.L.R. 23 ECJ , 208, 210 Commission of the European Communities v Belgium EU:C:2011:

195 xiv Table of Cases (C-276/10) (C-301/10) (C-343/10) (C-368/10) (C-393/10) (C-400/10 PPU) (C-411/10) (C-458/10) (C-551/10 P) (C-565/10) (C-566/10 P) (C-584/10 P) (C-617/10) (C-7/11) (C-40/11) (C-68/11) (C-75/11) (C-171/11) (C-179/11) (C-199/11) (C-202/11) (T-234/11 P) (C-256/11) (C-274/11) (C-279/11) (C-281/11) (C-297/11) (C-366/11) (C-374/11) Commission of the European Communities v Czech Republic Unreported 22 December 2010 ECJ Commission of the European Communities v United Kingdom Unreported 18 October 2010 ECJ , 271 Commission of the European Communities v Spain EU:C:2011:260 ECJ Commission of the European Communities v Netherlands EU:C:2012:284; [2012] 3 C.M.L.R. 11 ECJ O Brien v Ministry of Justice EU:C:2012:110; [2012] 2 C.M.L.R. 25; [2012] All E.R. (EC) 757; [2012] I.C.R. 955; [2012] I.R.L.R. 421 ECJ (2nd Chamber) McB v E [2010] E.C.R. I-8965; [2011] Fam. 364; [2011] 3 W.L.R. 699; [2011] All E.R. (EC) 379; [2011] I.L.Pr. 24; [2011] 1 F.L.R. 518; [2011] 2 F.C.R. 382; [2011] Fam. Law 8 ECJ R. (on the application of NS) v Secretary of State for the Home Department; E v Refugee Applications Commissioner; sub nom. ME v Refugee Applications Commissioner; NS v Secretary of State for the Home Department EU:C:2011:865; [2013] Q.B. 102; [2012] 3 W.L.R. 1374; [2012] 2 C.M.L.R. 9; [2012] All E.R. (EC) 1011; (2012) 109(29) L.S.G. 26 ECJ (Grand Chamber) , 355, 500, 501 Commission of the European Communities v Luxembourg Unreported 9 June 2011 ECJ Éditions Odile Jacob SAS v Commission of the European Communities [2012] EU:C:2012:681; [2013] 4 C.M.L.R. 1 ECJ Commission of the European Communities v Italy EU:C:2012:476 ECJ , 271, 272 Italy v Commission of the European Communities EU:C:2012:752; [2013] 2 C.M.L.R. 5 ECJ , 187, 189, 196, 197 European Commission v Kadi EU:C:2013:518; [2014] 1 C.M.L.R. 24; [2014] All E.R. (EC) 123; (2013) 163(7578) N.L.J. 20 ECJ (Grand Chamber) Aklagaren v Fransson; sub nom. Aklagaren v Akerberg Fransson EU:C:2013:105; [2013] S.T.C. 1905; [2013] 2 C.M.L.R. 46; 15 I.T.L. Rep. 698 ECJ (Grand Chamber) , 501, 503, 507 Criminal Proceedings against Caronna EU:C:2012:396 ECJ Iida v Stadt Ulm EU:C:2012:691; [2013] Fam. 121; [2013] 2 W.L.R. 788; [2013] 1 C.M.L.R. 47; [2014] All E.R. (EC) 619 ECJ , 502, 507 Commission of the European Communities v Italy EU:C:2012:815 ECJ , 273 European Commission v Austria [2013] 1 C.M.L.R. 17 ECJ (2nd Chamber) Fra.bo SpA v Deutsche Vereinigung des Gas- und Wasserfaches ev (DVGW) - Technisch-Wissenschaftlicher Verein [2013] Q.B. 187; [2013] 2 W.L.R. 1; [2012] 3 C.M.L.R. 38 ECJ , 528, 530 Comite inter mouvements aupres des evacues (CIMADE) v Ministre de l Interieur, de l Outre-mer, des Collectivites territoriales et de l Immigration EU:C:2012:594; [2013] 1 W.L.R. 333; [2013] 1 C.M.L.R. 11; [2013] C.E.C. 635 ECJ (4th Chamber) European Commission v Otis NV EU:C:2012:684; [2013] 4 C.M.L.R. 4; [2013] C.E.C. 750 ECJ (Grand Chamber) Las v PSA Antwerp NV EU:C:2013:239; [2013] 3 C.M.L.R. 22 ECJ , 187, 189 Orlando Arango Jaramillo v BEI Unreported 19 June 2012 CFI Dereci v Bundesministerium fur Inneres [2011] E.C.R. I-11315; [2012] 1 C.M.L.R. 45; [2012] All E.R. (EC) 373; [2012] Imm. A.R. 230; [2012] I.N.L.R. 151 ECJ (Grand Chamber) Spain v Council of the European Union EU:C:2013:240 [2013] 3 C.M.L.R. 24; [2013] All E.R. (EC) 874 ECJ (Grand Chamber) Commission of the European Communities v Ireland EU:C:2012:834 ECJ Commission of the European Communities v Poland EU:C:2013:855 ECJ , 222 Commission of the European Communities v Greece EU:C:2012:228 ECJ Commission of the European Communities v Belgium EU:C:2012: Commission of the European Communities v Ireland EU:C:2012:827; [2013] Env. L.R. D5 ECJ

196 Table of Cases xv (C-399/11) (C-403/11) (C-434/11) (C-462/11) (T-496/11) (C-528/11) (C-530/11) (C-534/11) (C-536/11) (C-583/11 P) (C-20/12) (C-43/12) (C-81/12) (C-87/12) (C-105/12) (C-128/12) (C-134/12) (C-151/12) (T-175/12) (C-176/12) (C-193/12) (C-199/12) (C-237/12) (C-264/12) (C-267/12) (C-270/12) (C-282/12) (C-285/12) Melloni v Ministerio Fiscal EU:C:2013:107; [2013] Q.B. 1067; [2013] 3 W.L.R. 717; [2013] 2 C.M.L.R. 43; [2013] All E.R. (EC) 475 ECJ (Grand Chamber) , 508, 510 Commission of the European Communities v Spain EU:C:2012:612 ECJ Corpul Naţional al Poliţiştilor v Ministerul Administraţiei şi Internelor (MAI) EU:C:2011:830 ECJ Cozman v Teatrul Municipal Târgovişte EU:C:2011:831 ECJ United Kingdom v European Central Bank (ECB) EU:T:2015:133; [2015] 3 C.M.L.R. 8 GC (4th Chamber) , 123, 124, 125, , 128, 129, 330, 479 Halaf v Darzhavna agentsia za bezhantsite pri Ministerskia savet EU:C:2013:342; [2013] 1 W.L.R ECJ (4th Chamber) Commission of the European Communities v United Kingdom EU:C:2014:67 ECJ Arslan v Policie ČR, Krajské ředitelství policie Ústeckého kraje, odbor cizinecké policie EU:C:2013: Bundeswettbewerbsbehorde v Donau Chemie AG EU:C:2013:366; [2013] 5 C.M.L.R. 19 ECJ (1st Chamber) Inuit Tapiriit Kanatami v Council of the European Communities EU:C:2013:625; [2014] 1 C.M.L.R. 54 ECJ Giersch v État du Grand-Duché de Luxembourg EU:C:2013:411; [2014] 1 C.M.L.R. 2 ECJ , 157 Commission of the European Communities v European Parliament EU:C:2013:534 ECJ Asociatia ACCEPT v Consiliul National pentru Combaterea Discriminarii [2013] 3 C.M.L.R. 26; [2013] All E.R. (EC) 857; [2013] I.C.R. 938; [2013] I.R.L.R. 660; [2013] Eq. L.R. 640 ECJ (3rd Chamber) Ymeraga v Ministre du Travail, de l Emploi et de l Immigration EU:C:2013:291; [2013] 3 C.M.L.R. 33; [2013] Imm. A.R ECJ Staat der Nederlanden v Essent NV EU:C:2013:677 ECJ Sindicato dos Bancários do Norte v BPN Banco Português de Negócios SA EU:C:2013: , 437 Ministerul Administratiei si Internelor (MAI), Inspectoratul General al Politiei Române (IGPR) and Inspectoratul de Politie al Judetului Tulcea (IPJ) v Corpul National al Politistilor Biroul Executiv Central EU:C:2012:288 ECJ Commission of the European Communities v Spain EU:C:2013:690 ECJ Deutsche Börse AG v European Commission [2015] EU:T:2015:148; [2015] 4 C.M.L.R Association de médiation sociale v Union locale des syndicats CGT (AMS) EU:C:2014:2; [2014] 2 C.M.L.R. 41 ECJ , 388, 500 Commission of the European Communities v France EU:C:2013:394 ECJ Minister voor Immigratie en Asiel v X EU:C:2013:720; [2014] Q.B. 1111; [2014] 3 W.L.R. 770; [2014] 2 C.M.L.R. 16; [2014] Imm. A.R. 440; [2014] I.N.L.R. 827 ECJ (4th Chamber) Commission of the European Communities v France EU:C:2014:2152 ECJ Sindicato Nacional dos Profissionais de Seguros e Afins v Fidelidade Mundial Companhia de Seguros, SA EU:C:2014: Hay v Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres EU:C:2013:823; [2014] 2 C.M.L.R. 32; [2014] C.E.C. 740 ECJ (5th Chamber) United Kingdom v European Parliament EU:C:2014:18; [2014] 2 C.M.L.R. 44; [2014] All E.R. (EC) 251 ECJ (Grand Chamber) , 333, 479 Itelcar - Automoveis de Aluguer Lda v Fazenda Publica EU:C:2013:629; [2013] B.T.C. 681 ECJ (4th Chamber) Diakite v Commissaire General aux Refugies et aux Apatrides EU:C:2014:39; [2014] 1 W.L.R. 2477; [2014] Imm. A.R. 631; [2014] I.N.L.R. 719 ECJ (4th Chamber)

197 xvi Table of Cases (C-293/12) (C-296/12) (C-328/12) (C-356/12) (C-368/12) (C-369/12) (C-370/12) (C-378/12) (C-390/12) (C-400/12) (C-456/12) (C-488/12) (T-492/12) (C-557/12) (C-589/12) (2/13) (C-14/13) (C-23/13) (C-58/13) (C-67/13 P) (C-79/13) (T-79/13) (C-85/13) (T-124/13 and T-191/13) (C-156/13) (C-168/13 PPU) (C-170/13) Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources EU:C:2014:238; [2015] Q.B. 127; [2014] 3 W.L.R. 1607; [2014] 2 All E.R. (Comm) 1; [2014] 3 C.M.L.R. 44; [2014] All E.R. (EC) 775 ECJ (Grand Chamber) , 420 European Commission v Belgium (Savings pensions) EU:C:2014:24; [2014] 2 C.M.L.R. 48 ECJ (10th Chamber) Schmid v Hertel EU:C:2014:6; [2014] 1 W.L.R. 633; [2015] B.C.C. 25; [2014] C.E.C. 846; [2014] I.L.Pr. 11; [2014] B.P.I.R. 504; (2014) 164(7593) N.L.J. 19 ECJ (1st Chamber) Glatzel v Freistaat Bayern EU:C:2014:350; [2014] 3 C.M.L.R. 52 ECJ Adiamix v Direction départementale des finances publiques de l Orne EU:C:2013: Corpul Naţional al Poliţiştilor Biroul Executiv Central v Ministerul Administraţiei şi Internelor EU:C:2012:725 ECJ Pringle v Ireland EU:C:2012:756; [2013] 2 C.M.L.R. 2; [2013] All E.R. (EC) 1 ECJ , 9, 12, 22, Onuekwere v Secretary of State for the Home Department EU:C:2014:13; [2014] 1 W.L.R. 2420; [2014] 2 C.M.L.R. 46; [2014] C.E.C. 1007; [2014] Imm. A.R. 551; [2014] I.N.L.R , 559, 560, 561, , 566, 570, 571, 573, 574, 577 Pfleger, Proceedings Brought by EU:C:2014:281; [2014] 3 C.M.L.R. 47 ECJ (3rd Chamber) , 507 Secretary of State for the Home Department v MG (Portugal) (C-400/12) EU:C:2014:9; [2014] 1 W.L.R. 2441; [2014] 2 C.M.L.R. 40; [2014] Imm. A.R. 561; [2014] I.N.L.R. 670 ECJ (Second Chamber) , 559, 562, 563, , 571, 573, 577 O v Minister voor Immigratie, Integratie en Asiel EU:C:2013:474; [2014] Q.B. 1163; [2014] 3 W.L.R. 799; [2014] 3 C.M.L.R. 17; [2014] All E.R. (EC) 843; [2014] Imm. A.R. 828; [2014] I.N.L.R. 748 ECJ (Grand Chamber) Nagy v Hajdú-Bihar Megyei Kormányhivatal EU:C:2013: Von Storch v European Central Bank EU:T:2013: Kone AG v ÖBB-Infrastruktur EU:C:2014:1317; [2014] 5 C.M.L.R. 5; [2015] C.E.C. 539 ECJ (5th Chamber) , 400, 401, 404, , 410, 411 Commissioners for Her Majesty s Revenue and Customs v GMAC UK Plc EU:C:2014:2131 ECJ Opinion pursuant to Article 218(11) TFEU EU:C:2014:2454; [2015] 2 C.M.L.R. 21; [2015] All E.R. (EC) 463 ECJ , 419, 497, 564 Cholakova v Osmo rayonno upravlenie pri Stolichna direktsia na vatreshnite EU:C:2013: Commission of the European Communities v France EU:C:2013:723 ECJ , 271 Torresi v Consiglio dell Ordine degli Avvocati di Macerata EU:C:2014:2088; [2015] Q.B. 331 ECJ Groupement des Cartes Bancaires v Commission of the European Communities EU:C:2014:2204; [2014] 5 C.M.L.R. 22 ECJ Federaal agentschap voor de opvang van asielzoekers v Saciri EU:C:2014: Accorinti v European Central Bank EU:T:2015: Commission of the European Communities v Italy EU:C:2014:251 ECJ , 271, 272 Italy and Spain v Commission of the European Communities EU:T:2015:690 CFI Digibet Ltd v Westdeutsche Lotterie GmbH & Co OHG EU:C:2014: , 521 F v Premier ministre EU:C:2013:358; [2014] 2 C.M.L.R. 19 ECJ Huawei Technologies Co Ltd v ZTE Corp [2015] EU:C:2015:477; [2015] 5 C.M.L.R. 14 ECJ , 514

198 Table of Cases xvii (C-196/13) (C-198/13) (C-206/13) (C-209/13) (C-224/13) (C-257/13) (C-258/13) (C-261/13 P) (C-268/13) (C-311/13) (C-316/13) (C-323/13) (T-327/13) (C-333/13) (C-354/13) (C-356/13) (C-365/13) (C-371/13) (C-395/13) (C-396/13) (C-507/13) (C-528/13) (C-536/13) (C-549/13) (C-557/13) (C-650/13) Commission of the European Communities v Italy EU:C:2014:2407 ECJ Julian Hernandez v Spain EU:C:2014:2055; [2014] All E.R. (EC) 971 ECJ Siragusa v Regione Sicilia - Soprintendenza Beni Culturali e Ambientali di Palermo EU:C:2014:126; [2014] 3 C.M.L.R. 13 ECJ United Kingdom v Council of the European Union EU:C:2014:283; [2014] S.T.C. 1228; [2014] 3 C.M.L.R. 48; [2014] All E.R. (EC) 951; [2014] B.T.C. 23; [2014] S.T.I ECJ (2nd Chamber) , 120, 329, 479 Lorrai, Criminal Proceedings against EU:C:2013: Mlamali v Caisse d allocations familiales des Bouches-du-Rhône EU:C:2013: Sociedade Agrícola e Imobiliária da Quinta de S. Paio v Instituto da Segurança Social IP EU:C:2013:810 ECJ Schönberger v European Parliament EU:C:2014:2423; [2015] 2 C.M.L.R. 8 ECJ , 199 Petru v Casa Judeteana de Asigurari de Sanatate Sibiu EU:C:2014:2271; [2015] P.T.S.R. 139; [2015] All E.R. (EC) 571; [2015] C.E.C. 669; (2014) 158(40) S.J.L.B. 37 ECJ (3rd Chamber) , 425, 427, 428, Tümer v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen EU:C:2014:2337; [2015] 1 C.M.L.R. 42; [2015] All E.R. (EC) 291; [2015] I.C.R. D6 ECJ (5th Chamber) , 392 Fenoll v Centre d aide par le travail La Jouvene EU:C:2015:200; [2016] I.R.L.R. 67 ECJ (1st Chamber) Commission of the European Communities v Italy EU:C:2014:2290 ECJ Mallis and Malli v Commission of the European Communities and European Central Bank EU:T:2014: Dano v Jobcenter Leipzig EU:C:2014:2358; [2015] 1 W.L.R. 2519; [2015] 1 C.M.L.R. 48; [2015] All E.R. (EC) 1; [2015] C.E.C. 1045; (2014) 158(44) S.J.L.B. 37 ECJ (Grand Chamber) Fag og Arbejde (FOA) v Kommunernes Landsforening (KL) EU:C:2014:2463; [2015] 2 C.M.L.R. 19 ECJ (4th Chamber) Commission of the European Communities v Poland EU:C:2014:2386 ECJ Ordre des architectes EU:C:2014: SC Schuster & Co Ecologic v Direcţia Generală a Finanţelor Publice a Judeţului Sibiu EU:C:2013:748 ECJ Commission of the European Communities v Belgium EU:C:2014: , 271 Sähköalojen ammattiliitto ry v Elektrobudowa Spólka Akcyjna EU:C:2015:86; [2015] 3 C.M.L.R. 10 ECJ United Kingdom v European Parliament Léger v Ministre des Affaires sociales, de la Santé et des Droits des femmes EU:C:2015:288; [2015] 3 C.M.L.R. 36; [2015] All E.R. (EC) 755 ECJ (4th Chamber) , 93, 94, 95, , 98, 101, 103 Gazprom OAO; sub nom. Proceedings concerning Gazprom OAO EU:C:2015:316; [2015] 1 W.L.R. 4937; [2015] 2 All E.R. (Comm) 1023; [2015] 1 Lloyd s Rep. 610; [2015] All E.R. (EC) 711; [2015] C.E.C. 1185; [2015] I.L.Pr. 31 ECJ (Grand Chamber) , 579, 580, 581, , 585, 586, 587, 588, 589 Bundesdruckerei GmbH v Stadt Dortmund EU:C:2014:2235; [2015] 1 C.M.L.R. 25 ECJ (9th Chamber) , 166, 169, 170 Lutz v Bauerle EU:C:2015:227; [2015] Bus. L.R. 855; [2015] B.C.C. 413; [2015] C.E.C. 1015; [2015] I.L.Pr. 21 ECJ (1st Chamber) , 79, 80, 81, Delvigne v Commune de Lesparre-Medoc EU:C:2015:648; [2016] 1 W.L.R. 1223; [2016] 2 C.M.L.R. 1; [2016] C.E.C. 599 ECJ (Grand Chamber) , 564, 565

199 xviii Table of Cases (C-665/13) (C-681/13) (C-19/14) (C-23/14) (C-62/14) (C-63/14) (C-64/14 P (C-67/14) (C-98/14) (C-115/14) (C-167/14) (C-190/14) (C-195/14) (C-299/14) (C-310/14) (C-345/14) (C-362/14) (C-459/14) (C-557/14) (T-574/14) (C-643/15) (C-647/15) Sindicato Nacional dos Profissionais de Seguros e Afins v Via Directa Companhia de Seguros SA EU:C:2014: Diageo Brands BV v Simiramida-04 EOOD EU:C:2015:471; [2016] Ch. 147; [2015] 3 W.L.R. 1632; [2015] E.T.M.R. 47 ECJ Talasca v Stadt Kevelaer EU:C:2014: Post Danmark A/S v Konkurrencerådet (Post Danmark II) EU:C:2015:651; [2015] 5 C.M.L.R. 25 ECJ Gauweiler v Deutscher Bundestag EU:C:2015:400; [2016] 1 C.M.L.R. 1; [2015] All E.R. (EC) 959 ECJ (Grand Chamber) , 9, 10, 11, , 14, 15, 16, 18, 21, 22 Commission of the European Communities v France EU:C:2015:458 ECJ Von Storch v European Central Bank (C-64/14 P) EU:C:2015: Jobcenter Berlin Neukolln v Alimanovic EU:C:2015:597; [2016] Q.B. 308; [2016] 2 W.L.R. 208; [2016] 1 C.M.L.R. 29 ECJ (Grand Chamber) Berlington Hungary Tanacsado es Szolgaltato kft v Hungary EU:C:2015:386; [2015] 3 C.M.L.R. 45 ECJ (1st Chamber) , 151 RegioPost v Stadt Landau in der Pfalz EU:C:2015:760; [2016] I.R.L.R. 125 ECJ , 166 Commission of the European Communities v Greece EU:C:2015:684 ECJ Commission of the European Communities v Denmark EU:C:2014:2341 ECJ Bundesverband der Verbraucherzentralen und Verbraucherverbande - Verbraucherzentrale - Bundesverband ev v Teekanne GmbH & Co KG EU:C:2015:361; [2016] C.E.C. 214 ECJ , 591, 592, 593, Vestische Arbeit Jobcenter Kreis Recklinghausen v Garcia-Nieto EU:C:2015:366 ECJ Nike European Operations Netherlands BV v Sportland Oy EU:C:2015:690; [2015] Bus. L.R ECJ (6th Chamber) SIA Maxima Latvija v Konkurences padome EU:C:2015:784; [2015] Bus. L.R. 1565; [2016] 4 C.M.L.R. 1 ECJ (4th Chamber) Schrems v Data Protection Commissioner EU:C:2015:650; [2016] Q.B. 527; [2016] 2 W.L.R. 873; [2016] 2 C.M.L.R. 2; [2016] C.E.C. 647 ECJ (Grand Chamber) Cocaj Unreported ECJ Commission of the European Communities v Portugal Unreported ECJ European Association of Euro Pharmaceutical Companies v Commission of the European Communities Unreported CFI Slovak Republic v Council (2 December 2015) [2016] OJ C38/ , 348, 351, 352 Hungary v Council (3 December 2015) [2016] OJ C38/ , 348, 349, 352 European Court of Justice and General Court: Alphabetical List of Cases A Ahlstrom Osakeyhtiö v Commission of the European Communities (C-89/85) [1993] E.C.R. I-1307; [1993] 4 C.M.L.R. 407 ECJ (5th Chamber) Abdulla v Germany (C-175/08); Hasan v Germany (C-176/08); Adem v Germany (C-178/08); Jamal v Germany (C-179/08) [2010] E.C.R. I-1493; [2011] Q.B. 46; [2010] 3 W.L.R. 1624; [2010] All E.R. (EC) 799; [2011] I.N.L.R. 235 ECJ (Grand Chamber) Accession of the Community to the European Human Rights Convention, Re (Opinion 2/94) [1996] E.C.R. I-1788; [1996] E.C.R. I-1759; [1996] 2 C.M.L.R. 265 ECJ , 564 Accorinti v European Central Bank (T-79/13) EU:T:2015:

200 Table of Cases xix ACF Chemiefarma NV v Commission of the European Communities (41/69) [1970] E.C.R Adiamix v Direction départementale des finances publiques de l Orne (C-368/12) EU:C:2013: Aklagaren v Fransson (C-617/10); sub nom. Aklagaren v Akerberg Fransson (C-617/10) EU:C:2013:105; [2013] S.T.C. 1905; [2013] 2 C.M.L.R. 46; 15 I.T.L. Rep. 698 ECJ (Grand Chamber) , 501, 503, 507 AKZO v Commission of the European Communities (62/86) [1991] E.C.R. I-3359; [1993] 5 C.M.L.R Allianz SpA (formerly Riunione Adriatica di Sicurta SpA) v West Tankers Inc (C-185/07); Front Comor, The (C-185/07); sub nom. West Tankers Inc v Allianz SpA (formerly Riunione Adriatica di Sicurta SpA) (C-185/07) EU:C:2009:69; [2009] 1 A.C. 1138; [2009] 3 W.L.R. 696; [2009] 1 All E.R. (Comm) 435; [2009] 1 Lloyd s Rep. 413; [2009] E.C.R. I-663; [2009] 1 C.L.C. 96; [2009] All E.R. (EC) 491; [2009] C.E.C. 619; [2009] I.L.Pr. 20; 2009 A.M.C ECJ (Grand Chamber) , 580, 581, 582, , 585, 586, 587, 588 Allonby v Accrington and Rossendale College (C-256/01) [2004] E.C.R. I-873; [2004] 1 C.M.L.R. 35; [2005] All E.R. (EC) 289; [2004] I.C.R. 1328; [2004] I.R.L.R. 224; [2004] O.P.L.R. 83; [2004] Pens. L.R. 199 ECJ Alpine Investments BV v Minister van Financi.R.(C-384/93) [1995] E.C.R. I-1141; [1995] 2 C.M.L.R. 209 ECJ Altun v Stadt Boblingen (C-337/07) [2008] E.C.R. I ECJ Ambulanz Glöckner v Landkreis Südwestpfalz (C-475/99) [2001] E.C.R. I-8089; [2002] 4 C.M.L.R. 21 ECJ (5th Chamber) , 428 Angonese v Cassa di Risparmio di Bolzano SpA (C-281/98) [2000] E.C.R. I-4139; [2000] 2 C.M.L.R. 1120; [2000] All E.R. (EC) 577; [2000] C.E.C. 374 ECJ Annibaldi v Sindaco del Comune di Guidonia (C-309/96) [1997] E.C.R. I-7493; [1998] 2 C.M.L.R. 187 ECJ Apotherkammer des Saarlandes v Saarland (C-171/07) [2009] E.C.R. I-4171; [2009] 3 C.M.L.R. 31 ECJ , 154 Arblade, Criminal Proceedings against (C-369/96) [1999] E.C.R. I-8453; [2001] I.C.R. 434 ECJ , 159, 160, 163 Arslan v Policie ČR, Krajské ředitelství policie Ústeckého kraje, odbor cizinecké policie (C-534/11) EU:C:2013: Asociatia ACCEPT v Consiliul National pentru Combaterea Discriminarii (C-81/12) [2013] 3 C.M.L.R. 26; [2013] All E.R. (EC) 857; [2013] I.C.R. 938; [2013] I.R.L.R. 660; [2013] Eq. L.R. 640 ECJ (3rd Chamber) Association de médiation sociale v Union locale des syndicats CGT (AMS) (C-176/12) EU:C:2014:2; [2014] 2 C.M.L.R. 41 ECJ , 388, 500 Atlanta AG v Council of the European Union (C-104/97 P) [1999] E.C.R. I-6983; [2001] 1 C.M.L.R. 20 ECJ (5th Chamber) Atlanta AG v Council of the European Union (T-521/93) [1996] E.C.R. II Attanasio Group Srl v Comune di Carbognano (C-384/08) [2010] E.C.R. I-2055; [2010] 3 C.M.L.R. 6 ECJ , 154 Audiolux SA v Groupe Bruxelles Lambert SA (GBL) (C-101/08) [2009] E.C.R. I-9823; [2010] 1 C.M.L.R. 39 ECJ Austria v European Parliament and Council of the European Union (C-161/04) [2006] E.C.R. I-7183 ECJ Baars v Inspecteur der Belastingdienst Particulieren/Ondernemingen Gorinchem (C-251/98) [2000] E.C.R. I-2787; [2002] 1 C.M.L.R. 49; 2 I.T.L. Rep. 660 ECJ (5th Chamber) Bachmann v Belgium (C-204/90) [1992] E.C.R. I-249; [1993] 1 C.M.L.R. 785 ECJ Bauhuis v Netherlands (46/76) [1977] E.C.R. 5 ECJ Becker v Finanzamt Munster-Innenstadt (8/81) [1982] E.C.R. 53; [1982] 1 C.M.L.R. 499 ECJ Belgisch Interventie- en Restitutiebureau v SGS Belgium NV (C-367/09) [2010] E.C.R. I-10761; [2011] 1 C.M.L.R. 46 ECJ Belgium v Commission of the European Communities (C-110/03) [2005] E.C.R. I-2801; [2006] 2 C.M.L.R. 5 ECJ (3rd Chamber) Belgium v Humbel (263/86) [1988] E.C.R. 5365; [1989] 1 C.M.L.R. 393 ECJ Belgium v Royer (48/75) [1976] E.C.R. 497; [1976] 2 C.M.L.R. 619 ECJ Berlington Hungary Tanacsado es Szolgaltato kft v Hungary (C-98/14) EU:C:2015:386; [2015] 3 C.M.L.R. 45 ECJ (1st Chamber) , 151 Bickel, Criminal Proceedings against (C-274/96) [1998] E.C.R. I-7637; [1999] 1 C.M.L.R. 348 ECJ Blanco Pérez v Consejería de Salud y Servicios Sanitarios (C-570/07) [2010] E.C.R. I-4629; [2010] 3 C.M.L.R. 37 ECJ , 519 Block v Finanzamt Kaufbeuren (C-67/08) [2009] E.C.R. I-883; [2009] 2 C.M.L.R. 39 ECJ Booker Aquaculture Ltd (t/a Marine Harvest McConnell) v Scottish Ministers (C-20/00); Hydro Seafood GSP Ltd v Scottish Ministers (C-64/00) [2003] E.C.R. I-7411; [2003] 3 C.M.L.R. 6; [2003] N.P.C. 89 ECJ Borgmann GmbH & Co KG v Hauptzollamt Dortmund (C-1/02) [2004] E.C.R. I-3219 ECJ

201 xx Table of Cases Bosal Holding BV v Staatssecretaris van Financien (C-168/01) [2003] S.T.C. 1483; [2003] E.C.R. I-9409; [2003] 3 C.M.L.R. 22; [2003] All E.R. (EC) 959; [2003] B.T.C. 513; 6 I.T.L. Rep. 105; [2003] S.T.I ECJ (5th Chamber) Bressol v Gouvernement de la Communauté Française (C-73/08) [2010] 3 C.M.L.R. 20; [2011] C.E.C. 80 ECJ (Grand Chamber) , 148, 154, 156 Bundesdruckerei GmbH v Stadt Dortmund (C-549/13) EU:C:2014:2235; [2015] 1 C.M.L.R. 25 ECJ (9th Chamber) , 166, 169, 170 Bundesverband der Verbraucherzentralen und Verbraucherverbande - Verbraucherzentrale - Bundesverband ev v Teekanne GmbH & Co KG (C-195/14) EU:C:2015:361; [2016] C.E.C. 214 ECJ , 591, 592, 593, Bundeswettbewerbsbehorde v Donau Chemie AG (C-536/11) EU:C:2013:366; [2013] 5 C.M.L.R. 19 ECJ (1st Chamber) Caballero v Fondo de Garantia Salarial (FOGASA) (C-442/00) [2002] E.C.R. I-11915; [2003] I.R.L.R. 115 ECJ Calfa, Criminal Proceedings against (C-348/96) [1999] E.C.R. I-11; [1999] 2 C.M.L.R. 1138; [1999] All E.R. (EC) 850; [1999] C.E.C. 477; [1999] I.N.L.R. 333; (1999) 96(19) L.S.G. 30 ECJ Campus Oil Ltd v Minister for Industry and Energy (72/83) [1984] E.C.R. 2727; [1984] 3 C.M.L.R. 544 ECJ , 148 Caisse d Allocations Familiales v Meade (238/83) [1984] E.C.R Carciati, Criminal Proceedings against (823/79) [1980] E.C.R. 2773; [1981] 2 C.M.L.R. 274 ECJ Caronna, Criminal Proceedings against (C-7/11) EU:C:2012:396 ECJ Casa Fleischhandels-GmbH v Bundesanstalt fur landwirtschaftliche Marktordnung (215/88) [1989] E.C.R ECJ Cassis de Dijon. See Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein Chakroun v Minister van Buitenlandse Zaken (C-578/08) [2010] E.C.R. I-1839; [2010] 3 C.M.L.R Cholakova v Osmo rayonno upravlenie pri Stolichna direktsia na vatreshnite (C-14/13) EU:C:2013: CILFIT v Ministry of Health (283/81) [1982] E.C.R. 3415; [1983] 1 C.M.L.R. 472 ECJ Cipolla v Fazari (C-94/04); Macrino v Meloni (C-202/04) [2006] E.C.R. I-11421; [2007] 4 C.M.L.R. 8; [2007] All E.R. (EC) 699 ECJ Cocaj (C-459/14) Unreported ECJ Comite inter mouvements aupres des evacues (CIMADE) v Ministre de l Interieur, de l Outre-mer, des Collectivites territoriales et de l Immigration (C-179/11) EU:C:2012:594; [2013] 1 W.L.R. 333; [2013] 1 C.M.L.R. 11; [2013] C.E.C. 635 ECJ (4th Chamber) Commission of the European Communities v Austria (C-194/01) [2004] E.C.R. I-4579; [2004] Env. L.R. 48 ECJ Commission of the European Communities v Austria (C-147/03) [2005] E.C.R. I-5969; [2006] 3 C.M.L.R. 39; [2005] 3 C.M.L.R. 23; [2005] C.E.C. 758 ECJ (2nd Chamber) , 156 Commission of the European Communities v Austria (C-422/08) [2009] E.C.R. I Commission of the European Communities v Belgium (77/69) [1970] E.C.R. 237; [1974] 1 C.M.L.R. 203 ECJ Commission of the European Communities v Belgium (C-249/88) [1991] E.C.R. I-1275; [1993] 2 C.M.L.R. 533 ECJ Commission of the European Communities v Belgium (C-300/90) [1992] E.C.R. I-305; [1995] Pens. L.R Commission of the European Communities v Belgium (C-478/98) [2000] S.T.C. 830; [2000] E.C.R. I-7587; [2000] 3 C.M.L.R. 1111; [2000] B.T.C. 301; [2000] S.T.I ECJ , 157 Commission of the European Communities v Belgium (C-227/06) [2008] E.C.R. I , 523 Commission of the European Communities v Belgium (C-271/07) [2008] E.C.R. I Commission of the European Communities v Belgium (C-265/10) EU:C:2011: Commission of the European Communities v Belgium (C-366/11) EU:C:2012: Commission of the European Communities v Belgium (C-395/13) EU:C:2014: , 271 Commission of the European Communities v Council of the European Communities (C-300/89) [1991] E.C.R. I-2867; [1993] 3 C.M.L.R. 359 ECJ Commission of the European Communities v Council of the European Communities (C-27/04) [2004] E.C.R. I-6649 ECJ Commission of the European Communities v Czech Republic (C-481/09) Unreported 30 September 2010 ECJ Commission of the European Communities v Czech Republic (C-276/10) Unreported 22 December 2010 ECJ Commission of the European Communities v Denmark (302/86) [1988] E.C.R ECJ Commission of the European Communities v Denmark (C-464/02) [2005] E.C.R. I-7929; [2006] 2 C.M.L.R. 14 ECJ (1st Chamber) Commission of the European Communities v Denmark (C-190/14) EU:C:2014:2341 ECJ

202 Table of Cases xxi Commission of the European Communities v European Central Bank (C-11/00) [2003] E.C.R. I-7147 ECJ Commission of the European Communities v European Parliament (C-43/12) EU:C:2013:534 ECJ Commission of the European Communities v Finland (C-54/05) [2007] E.C.R. I-2473; [2007] 2 C.M.L.R. 33 ECJ Commission of the European Communities v Finland (C-335/07) [2009] E.C.R. I-9459 ECJ , 271 Commission of the European Communities v Finland (C-328/08) [2008] E.C.R. I-200 ECJ Commission of the European Communities v France (270/83) [1986] E.C.R. 273; [1987] 1 C.M.L.R. 401 ECJ Commission of the European Communities v France (C-52/95) [1995] E.C.R. I-4443 ECJ Commission of the European Communities v France (C-265/95) [1997] E.C.R. I-6959 ECJ , 152 Commission of the European Communities v France (C-225/98) [2000] E.C.R. I-7445 ECJ Commission of the European Communities v France (C-24/00) [2004] E.C.R. I-1277; [2004] 3 C.M.L.R. 25 ECJ , 153 Commission of the European Communities v France (C-147/07) [2008] E.C.R. I-20 ECJ Commission of the European Communities v France (C-330/08) [2008] E.C.R. I-191 ECJ Commission of the European Communities v France (C-64/09) Unreported 15 April 2010 ECJ Commission of the European Communities v France (C-193/12) EU:C:2013:394 ECJ Commission of the European Communities v France (C-237/12) EU:C:2014:2152 ECJ Commission of the European Communities v France (C-23/13) EU:C:2013:723 ECJ , 271 Commission of the European Communities v France (C-63/14) EU:C:2015:458 ECJ Commission of the European Communities v Germany (178/84) [1987] E.C.R. I-1227 ECJ Commission of the European Communities v Germany (C-217/88) [1990] E.C.R. I-2879; [1993] 1 C.M.L.R. 18 ECJ Commission of the European Communities v Germany (C-433/93) [1995] E.C.R. I-2303 ECJ Commission of the European Communities v Germany (C-51/94) [1995] E.C.R. I-3599 ECJ , 593, 594 Commission of the European Communities v Germany (C-96/95) [1997] E.C.R. I-1653 ECJ Commission of the European Communities v Germany (C-112/05) [2007] E.C.R. I-8995; [2008] 1 C.M.L.R. 25 ECJ (Grand Chamber) Commission of the European Communities v Germany (C-141/07) [2008] E.C.R. I-6935; [2008] 3 C.M.L.R. 48 ECJ (4th Chamber) , 153, 154 Commission of the European Communities v Germany (C-271/08) [2010] E.C.R. I-7091; [2011] All E.R. (EC) 912 ECJ Commission of the European Communities v Greece (C-214/98) [2000] E.C.R. I-9601 ECJ Commission of the European Communities v Greece (C-398/98) [2001] E.C.R. I-7915; [2001] 3 C.M.L.R. 62 ECJ (5th Chamber) Commission of the European Communities v Greece (C-264/07) [2008] E.C.R. I-22 ECJ Commission of the European Communities v Greece (C-512/09) [2010] E.C.R. I-96; (C-600/12) EU:C:2014:2086; (C-378/13) EU:C:2014:2405; (C-677/13) EU:C:2014:2433 ECJ Commission of the European Communities v Greece (C-297/11) EU:C:2012:228 ECJ Commission of the European Communities v Greece (C-167/14) EU:C:2015:684 ECJ Commission of the European Communities v Greece (C-9/92) [1993] E.C.R. I-4467; [1997] S.T.C. 601 ECJ Commission of the European Communities v Ireland (C-427/07) [2009] E.C.R. I-6277 ECJ Commission of the European Communities v Ireland (C-50/09) EU:C:2011:109; [2011] E.C.R. I-873; [2011] P.T.S.R ECJ , 231, 271 Commission of the European Communities v Ireland (C-279/11) EU:C:2012:834 ECJ Commission of the European Communities v Ireland (C-374/11) EU:C:2012:827; [2013] Env. L.R. D5 ECJ Commission of the European Communities v Italy (7/61) [1961] E.C.R. 317; [1962] C.M.L.R. 39 ECJ Commission of the European Communities v Italy (C-128/89) [1990] E.C.R. I-3239; [1991] 3 C.M.L.R. 720 ECJ Commission of the European Communities v Italy (C-360/89) [1992] E.C.R. I-3401 ECJ , 168 Commission of the European Communities v Italy (Sanitary Services) (C-358/98) [2000] E.C.R. I-1255 ECJ Commission of the European Communities v Italy (C-465/05); sub nom. Private Security Guards, Re (C-465/05) [2007] E.C.R. I-11091; [2008] 2 C.M.L.R. 3 ECJ Commission of the European Communities v Italy (C-531/06) [2009] E.C.R. I-4103; [2009] All E.R. (EC) 1141 ECJ Commission of the European Communities v Italy (C-85/07) [2007] E.C.R. I-194 ECJ Commission of the European Communities v Italy (C-573/08) [2009] E.C.R. I-217 ECJ Commission of the European Communities v Italy (C-47/09) [2010] E.C.R. I-12083; [2011] E.T.M.R Commission of the European Communities v Italy (C-164/09) Unreported 11 November 2010 ECJ

203 xxii Table of Cases Commission of the European Communities v Italy (C-565/10) EU:C:2012:476 ECJ , 271, 272 Commission of the European Communities v Italy (C-68/11) EU:C:2012:815 ECJ , 273 Commission of the European Communities v Italy (C-85/13) EU:C:2014:251 ECJ , 271, 272 Commission of the European Communities v Italy (C-196/13) EU:C:2014:2407 ECJ Commission of the European Communities v Italy (C-323/13) EU:C:2014:2290 ECJ Commission of the European Communities v Jégo-Quéré et Cie SA (C-263/02 P) [2005] Q.B. 237; [2005] 2 W.L.R. 179; [2004] E.C.R. I-3425; [2004] 2 C.M.L.R. 12; [2004] All E.R. (EC) 983; [2004] C.E.C. 284 ECJ (6th Chamber) Commission of the European Communities v Koninklijke Friesland Campina NV (C-519/07 P) [2009] E.C.R. I-8495; [2010] 1 C.M.L.R. 13 ECJ Commission of the European Communities v Luxembourg (C-331/08) [2009] E.C.R. I-45 ECJ Commission of the European Communities v Luxembourg (C-458/10) Unreported 9 June 2011 ECJ Commission of the European Communities v Malta (C-76/08) [2009] E.C.R. I-8213 ECJ Commission of the European Communities v Malta (C-252/08) [2009] E.C.R. I-159 ECJ Commission of the European Communities v Malta (C-351/09) Unreported 22 December 2010 ECJ Commission of the European Communities v Netherlands (C-41/02) [2004] E.C.R. I-11375; [2006] 2 C.M.L.R. 11 ECJ (3rd Chamber) Commission of the European Communities v Netherlands (C-368/10) EU:C:2012:284; [2012] 3 C.M.L.R. 11 ECJ Commission of the European Communities v Poland (C-335/09 P) EU:C:2012:385 ECJ Commission of the European Communities v Poland (C-281/11) EU:C:2013:855 ECJ , 222 Commission of the European Communities v Poland (C-356/13) EU:C:2014:2386 ECJ Commission of the European Communities v Portugal (C-367/98) [2002] E.C.R. 4731; [2002] 2 C.M.L.R. 48 ECJ Commission of the European Communities v Portugal (C-265/06) [2008] E.C.R. I-2245; [2008] 2 C.M.L.R. 41 ECJ (3rd Chamber) Commission of the European Communities v Portugal (C-233/07) [2008] E.C.R. I-70 ECJ , 271 Commission of the European Communities v Portugal (C-530/07) [2009] E.C.R. I-78 ECJ Commission of the European Communities v Portugal (C-458/08) [2010] E.C.R. I ECJ Commission of the European Communities v Portugal (C-20/09) [2011] E.C.R. I-2637 ECJ Commission of the European Communities v Portugal (C-526/09) Unreported 2 December 2010 ECJ , 271 Commission of the European Communities v Portugal (C-557/14) Unreported ECJ Commission of the European Communities v Slovenia (C-402/08) [2009] E.C.R. I-34 ECJ Commission of the European Communities v Slovenia (C-49/10) EU:C:2010:597 ECJ Commission of the European Communities v Spain (C-516/07) [2009] E.C.R. I-76 ECJ Commission of the European Communities v Spain (C-400/08) [2011] E.C.R. I-1915; [2011] 2 C.M.L.R. 50 ECJ (2nd Chamber) Commission of the European Communities v Spain (C-404/09) EU:C:2011:768 ECJ Commission of the European Communities v Spain (C-343/10) EU:C:2011:260 ECJ Commission of the European Communities v Spain (C-403/11) EU:C:2012:612 ECJ Commission of the European Communities v Spain (C-151/12) EU:C:2013:690 ECJ Commission of the European Communities v Sweden (C-438/07) [2009] E.C.R. I-9517 ECJ , 271 Commission of the European Communities v Tetra Laval BV (C-12/03 P) [2005] E.C.R. I-987; [2005] 4 C.M.L.R. 8; [2005] All E.R. (EC) 1059 ECJ , 215 Commission of the European Communities v United Kingdom (124/81) [1983] E.C.R. 203; [1983] 2 C.M.L.R. 1 ECJ Commission of the European Communities v United Kingdom (40/82) [1982] E.C.R. 2793; [1982] 3 C.M.L.R. 497 ECJ Commission of the European Communities v United Kingdom (C-390/07) [2009] E.C.R. I-214 ECJ , 271 Commission of the European Communities v United Kingdom (C-346/08) Unreported 22 April 2010 ECJ Commission of the European Communities v United Kingdom (C-417/08) [2009] E.C.R. I-106 ECJ Commission of the European Communities v United Kingdom (C-301/10) Unreported 18 October 2010 ECJ , 271 Commission of the European Communities v United Kingdom (C-530/11) EU:C:2014:67 ECJ Commissioners for Her Majesty s Revenue and Customs v GMAC UK Plc (C-589/12) EU:C:2014:2131 ECJ Cooperatieve Vereniging Suiker Unie UA v Commission of the European Communities (40/73) [1975] E.C.R. 1663; [1976] 1 C.M.L.R. 295 ECJ Corbeau, Criminal Proceedings against (C-320/91) [1993] E.C.R. I-253; [1995] 4 C.M.L.R ECJ , 428

204 Table of Cases xxiii Corporación Dermoestética SA v To Me Group Advertising Media (C-500/06) [2008] E.C.R. I-5785; [2008] 3 C.M.L.R. 33 ECJ Corpul Naţional al Poliţiştilor v Ministerul Administraţiei şi Internelor (MAI) (C-434/11) EU:C:2011:830 ECJ Corpul Naţional al Poliţiştilor Biroul Executiv Central v Ministerul Administraţiei şi Internelor (C-369/12) EU:C:2012:725 ECJ Costa, Criminal Proceedings against (C-72/10) EU:C:2012:80 ECJ , 280 Costa v Ente Nazionale per l Energia Elettrica (ENEL) (6/64) [1964] E.C.R. 585; [1964] C.M.L.R. 425 ECJ Courage Ltd v Crehan (C-453/99); sub nom. Crehan v Courage Ltd (C-453/99) [2002] Q.B. 507; [2001] 3 W.L.R. 1646; [2001] E.C.R. I-6297; [2002] U.K.C.L.R. 171; [2001] 5 C.M.L.R. 28; [2001] All E.R. (EC) 886; [2001] C.E.C. 297; [2002] I.C.R. 457 ECJ Cozman v Teatrul Municipal Târgovişte (C-462/11) EU:C:2011:831 ECJ D v Council of the European Union (C-122/99 P) [2001] E.C.R. I-4319; [2003] 3 C.M.L.R. 9; [2001] Emp. L.R. 956 ECJ Dano v Jobcenter Leipzig (C-333/13) EU:C:2014:2358; [2015] 1 W.L.R. 2519; [2015] 1 C.M.L.R. 48; [2015] All E.R. (EC) 1; [2015] C.E.C. 1045; (2014) 158(44) S.J.L.B. 37 ECJ (Grand Chamber) Danosa v LKB Lizings SIA (C-232/09) [2010] E.C.R. I-11405; [2011] 2 C.M.L.R. 2; [2011] Eq. L.R. 48 ECJ (2nd Chamber) DEB Deutsche Energiehandels- und Beratungsgesellschaft mbh v Germany (C-279/09) [2010] E.C.R. I-13849; [2011] 2 C.M.L.R. 21 ECJ Decker v Caisse de maladie des employr. 9; [200(C-120/95) [1998] E.C.R. I-1831; [1998] 2 C.M.L.R. 879 ECJ , 151, 154, 157 Defrenne v SA Belge de Navigation Aerienne (SABENA) (43/75) [1981] 1 All E.R. 122; [1976] E.C.R. 455; [1976] 2 C.M.L.R. 98; [1976] I.C.R. 547 ECJ Delimitis v Henninger Br.R. 87(C-234/89) [1991] E.C.R. I-935; [1992] 5 C.M.L.R. 210 ECJ , 209, 210 Dellas v Premier Ministre (C14/04); sub nom. Dellas v Secretariat General du Gouvernement (C14/04) [2005] E.C.R. I-10253; [2006] 2 C.M.L.R. 2; [2006] C.E.C. 328; [2006] I.R.L.R. 225 ECJ (2nd Chamber) Delvigne v Commune de Lesparre-Medoc (C-650/13) EU:C:2015:648; [2016] 1 W.L.R. 1223; [2016] 2 C.M.L.R. 1; [2016] C.E.C. 599 ECJ (Grand Chamber) , 564, 565 Denkavit Füttermittel GmbH v Minister für Ernahrung, Landwirtschaft und Forsten des Landes Nordrhein-Westfalen (C-251/78) [1979] E.C.R. 3369; [1980] 3 C.M.L.R. 513; [1981] F.S.R. 53 ECJ Dereci v Bundesministerium fur Inneres (C-256/11) [2011] E.C.R. I-11315; [2012] 1 C.M.L.R. 45; [2012] All E.R. (EC) 373; [2012] Imm. A.R. 230; [2012] I.N.L.R. 151 ECJ (Grand Chamber) Deutsche B.R. 3369; [1980] 3 C.M.L.R. 51(T-175/12) [2015] EU:T:2015:148; [2015] 4 C.M.L.R Deutsche Milchkontor GmbH v Germany (205/82) [1983] E.C.R. 2633; [1984] 3 C.M.L.R. 586 ECJ Deutsche Telekom AG v Commission of the European Communities (C-280/08 P) [2010] E.C.R. I-9555; [2010] 5 C.M.L.R. 27 ECJ , 210 Deutscher Apothekerverband ev v 0800 DocMorris (C-322/01) [2003] E.C.R. I-14887; [2005] 1 C.M.L.R. 46 ECJ Diageo Brands BV v Simiramida-04 EOOD (C-681/13) EU:C:2015:471; [2016] Ch. 147; [2015] 3 W.L.R. 1632; [2015] E.T.M.R. 47 ECJ Diakite v Commissaire General aux Refugies et aux Apatrides (C-285/12) EU:C:2014:39; [2014] 1 W.L.R. 2477; [2014] Imm. A.R. 631; [2014] I.N.L.R. 719 ECJ (4th Chamber) Digibet Ltd v Westdeutsche Lotterie GmbH & Co OHG (C-156/13) EU:C:2014: , 521 Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources (C-293/12) EU:C:2014:238; [2015] Q.B. 127; [2014] 3 W.L.R. 1607; [2014] 2 All E.R. (Comm) 1; [2014] 3 C.M.L.R. 44; [2014] All E.R. (EC) 775 ECJ (Grand Chamber) , 420 Draft Treaty on a European Economic Area (No.1), Re (Opinion 1/91); sub nom. Draft Agreement relating to the Creation of a European Economic Area, Re (Opinion 1/91) [1991] E.C.R. I-6079; [1992] 1 C.M.L.R. 245 ECJ Duyster v Commission of the European Communities (C-51/05) Unreported 13 December 2007 ECJ Dynamic Medien Vertriebs GmbH v Avides Media AG (C-244/06) [2008] E.C.R. I-505; [2008] 2 C.M.L.R. 23; [2009] All E.R. (EC) 1098 ECJ (3rd Chamber) Dzodzi v Belgium (C-297/88) [1990] E.C.R. I-3763 ECJ É37J97/88) [1990] E.C.R. I-3763.M.L.R.of the European Communities (C-551/10 P) [2012] EU:C:2012:681; [2013] 4 C.M.L.R. 1 ECJ Einfuhr- und Vorratsstelle für Getreide und Futtermittel v Köster and Berodt & Co (25/70) [1970] E.C.R ECJ

205 xxiv Table of Cases Elchinov v Natsionalna Zdravnoosiguritelna Kasa (C-173/09) EU:C:2010:581; [2011] P.T.S.R. 1308; [2011] 1 C.M.L.R. 29; [2011] All E.R. (EC) 767 ECJ (Grand Chamber) Elliniki Radiophonia Tileorassi AE (ERT) v Dimotiki Etairia Pliroforissis (DEP) (C-260/89); Elliniki Radiophonia Tileorassi AE (ERT) v Sotirios Kouvelas [1991] E.C.R. I-2925; [1994] 4 C.M.L.R. 540 ECJ , 507 Eman v College van Burgemeester en Wethouders van den Haag (C-300/04) [2006] E.C.R. I-8055; [2007] 1 C.M.L.R. 4; [2007] All E.R. (EC) 486 ECJ EMC Development AB v European Commission (T-432/05) [2010] E.C.R. II-1629; [2010] 5 C.M.L.R. 13 GC (5th Chamber) Emsland-Stärke GmbH v Hauptzollamt Hamburg-Jonas (C-110/99) [2000] E.C.R. I ECJ Endendijk, Criminal Proceedings against (C-187/07) [2008] E.C.R. I-2115 ECJ Enka BV v Inspecteur der Invoerrechten en Accijnzen (38/77) [1977] E.C.R. 2203; [1978] 2 C.M.L.R. 212 ECJ Établissements Consten Sàrl v Commission of the European Communities (Consten-Grundig) [1966] E.C.R. 429; [1966] C.M.L.R. 418 ECJ Erich Gasser GmbH v MISAT Srl (C-116/02) [2005] Q.B. 1; [2004] 3 W.L.R. 1070; [2005] 1 All E.R. (Comm) 538; [2004] 1 Lloyd s Rep. 222; [2003] E.C.R. I-14693; [2005] All E.R. (EC) 517; [2004] I.L.Pr. 7 ECJ Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich (C-112/00) [2003] E.C.R. I-5659; [2003] 2 C.M.L.R. 34 ECJ , 173 European Association of Euro Pharmaceutical Companies v Commission of the European Communities (T-574/14) Unreported CFI European Commission v Alrosa Co Ltd (C-441/07 P) [2010] 5 C.M.L.R. 11; [2011] All E.R. (EC) 1; [2011] Bus. L.R. D74 ECJ (Grand Chamber) , 248 European Commission v Austria (C-75/11) [2013] 1 C.M.L.R. 17 ECJ (2nd Chamber) European Commission v Belgium (Savings pensions) (C-296/12) EU:C:2014:24; [2014] 2 C.M.L.R. 48 ECJ (10th Chamber) European Commission v France (C-512/08) [2011] 1 C.M.L.R. 30; [2011] All E.R. (EC) 818 ECJ (Grand Chamber) , 426 European Commission v Germany (C-518/07) [2010] E.C.R. I-1885; [2010] 3 C.M.L.R. 3 ECJ (Grand Chamber) European Commission v Kadi (C-584/10 P) EU:C:2013:518; [2014] 1 C.M.L.R. 24; [2014] All E.R. (EC) 123; (2013) 163(7578) N.L.J. 20 ECJ (Grand Chamber) European Commission v Netherlands (Funding for higher education) (C-542/09) EU:C:2012:346; [2012] 3 C.M.L.R. 27 ECJ (2nd Chamber) European Commission v Otis NV (C-199/11) EU:C:2012:684; [2013] 4 C.M.L.R. 4; [2013] C.E.C. 750 ECJ (Grand Chamber) European Commission v Spain; sub nom. Medical Expenses, Re (C-211/08) EU:C:2010:340; [2010] 3 C.M.L.R. 48; [2011] All E.R. (EC) 285; [2011] C.E.C. 645 ECJ (Grand Chamber) European Development Fund, Re (C-316/91). See European Parliament v Council of Ministers of the European Communities (C-316/91) European Parliament v Council (Family reunification) (C-540/03) [2006] E.C.R I-5769; [2006] 3 C.M.L.R. 28 ECJ , 501 European Parliament v Council of Ministers of the European Communities (C-70/88) [1990] E.C.R. I-2041; [1992] 1 C.M.L.R. 91 ECJ European Parliament v Council of Ministers of the European Communities; sub nom European Development Fund, Re (C-316/91) [1994] E.C.R. I-625; [1994] 3 C.M.L.R. 149 ECJ European Parliament v Council of the European Union (C-317/04) [2006] E.C.R. I-4721; [2006] 3 C.M.L.R. 9; [2007] All E.R. (EC) 278 ECJ F v Premier ministre (C-168/13 PPU) EU:C:2013:358; [2014] 2 C.M.L.R. 19 ECJ F Hoffmann La Roche & Co AG v Commission of the European Communities (85/76) [1979] E.C.R. 461; [1979] 3 C.M.L.R. 211; [1980] F.S.R. 13 ECJ Fag og Arbejde (FOA) v Kommunernes Landsforening (KL) (C-354/13) EU:C:2014:2463; [2015] 2 C.M.L.R. 19 ECJ (4th Chamber) Falck SpA v Commission of the European Communities (C-74/00 P) [2002] E.C.R. I-7869 ECJ Federaal agentschap voor de opvang van asielzoekers v Saciri (C-79/13) EU:C:2014: Federatie Nederlandse Vakbeweging (FNV) v Netherlands (C-124/05) [2006] E.C.R. I-3423; [2006] 2 C.M.L.R. 46; [2006] All E.R. (EC) 913; [2006] C.E.C. 797; [2006] I.C.R. 962; [2006] I.R.L.R. 561 ECJ (1st Chamber) Fenoll v Centre d aide par le travail La Jouvene (C-316/13) EU:C:2015:200; [2016] I.R.L.R. 67 ECJ (1st Chamber)

206 Table of Cases xxv Finanzamt für Körperschaften III in Berlin v Krankenheim Ruhesitz (C-157/07) [2008] E.C.R. I-8061; [2009] All E.R. (EC) 513 ECJ Finanzamt Köln-Altstadt v Schumacker (C-279/93) [1996] Q.B. 28; [1995] 3 W.L.R. 498; [1995] S.T.C. 306; [1995] E.C.R. I-225; [1996] 2 C.M.L.R. 450; [1995] All E.R. (E.C.) 319; [1995] Pens. L.R. 209 ECJ , 101 Firma Foto Frost v Hauptzollamt Lubeck-Ost (314/85) [1987] E.C.R. 4199; [1988] 3 C.M.L.R. 57 ECJ Fra.bo SpA v Deutsche Vereinigung des Gas- und Wasserfaches ev (DVGW) - Technisch-Wissenschaftlicher Verein (C-171/11) [2013] Q.B. 187; [2013] 2 W.L.R. 1; [2012] 3 C.M.L.R. 38 ECJ , 528, 530 Francovich v Italy (C-6/90) [1991] E.C.R. I-5357; [1993] 2 C.M.L.R. 66; [1995] I.C.R. 722; [1992] I.R.L.R. 84 ECJ , 232 Garcia Avello v Belgium (C-148/02) [2003] E.C.R. I-11613; [2004] 1 C.M.L.R. 1; [2004] All E.R. (EC) 740 ECJ GATS Agreements, Re (Opinion 1/08) [2009] E.C.R. I-11129; [2010] 2 C.M.L.R. 13 ECJ (Grand Chamber) Gauweiler v Deutscher Bundestag (C-62/14) EU:C:2015:400; [2016] 1 C.M.L.R. 1; [2015] All E.R. (EC) 959 ECJ (Grand Chamber) , 9, 10, 11, , 14, 15, 16, 18, 21, 22 Gazprom OAO (C-536/13); sub nom. Proceedings concerning Gazprom OAO (C-536/13) EU:C:2015:316; [2015] 1 W.L.R. 4937; [2015] 2 All E.R. (Comm) 1023; [2015] 1 Lloyd s Rep. 610; [2015] All E.R. (EC) 711; [2015] C.E.C. 1185; [2015] I.L.Pr. 31 ECJ (Grand Chamber) , 579, 580, 581, , 585, 586, 587, 588, 589 Gebroeders Beentjes BV v Netherlands (31/87) [1988] E.C.R. 4635; [1990] 1 C.M.L.R. 287 ECJ (4th Chamber) , 167, 168 Geigy AG v Commission of the European Communities (52/69) [1972] E.C.R. 787 ECJ Geraets-Smits v Stichting Ziekenfonds (C-157/99); Peerbooms v Stichting CZ Groep Zorgverzekeringen (C-157/99) [2001] E.C.R. I-5473; [2002] 2 C.M.L.R. 21 ECJ , 425, 426, 427 Germany v Commission of the European Communities (44/81) [1982] E.C.R ECJ Germany v Commission of the European Communities (C-263/95) [1998] E.C.R. I-441; [1998] 2 C.M.L.R ECJ Germany v European Parliament; sub nom Tobacco Advertising (C-376/98) [2000] E.C.R. I-8419; [2000] 3 C.M.L.R. 1175; [2000] All E.R. (EC) 769 ECJ , 49, 50 Geurts v Administratie van de BTW, Registratie en Domeinen (C-464/05) [2007] E.C.R. I-9325; [2008] 1 C.M.L.R. 29 ECJ Giersch v itat du Grand-Duché de Luxembourg (C-20/12) EU:C:2013:411; [2014] 1 C.M.L.R. 2 ECJ , 157 Glatzel v Freistaat Bayern (C-356/12) EU:C:2014:350; [2014] 3 C.M.L.R. 52 ECJ GlaxoSmithKline Services Unlimited (Glaxo Spain) (C-501/06 P) [2009] E.C.R. I-9291; [2010] 4 C.M.L.R. 2 ECJ , 208 Grad v Finanzamt Traunstein (9/70) [1970] E.C.R. 825; [1971] C.M.L.R. 1 ECJ Grant v South West Trains Ltd (C-249/96) [1998] E.C.R. I-621; [1998] 1 C.M.L.R. 993; [1998] All E.R. (EC) 193; [1998] C.E.C. 263; [1998] I.C.R. 449; [1998] I.R.L.R. 206; [1998] 1 F.L.R. 839; [1998] 1 F.C.R. 377; 3 B.H.R.C. 578; [1999] Pens. L.R. 69; [1998] Fam. Law 392; (1998) 162 J.P.N. 266 ECJ , 102, 103 Groener v Minister for Education (C-379/87) [1989] E.C.R. 3967; [1990] 1 C.M.L.R. 401 ECJ Groupement des Cartes Bancaires v Commission of the European Communities (C-67/13 P) EU:C:2014:2204; [2014] 5 C.M.L.R. 22 ECJ Guiot, Criminal Proceedings against (C-272/94) [1996] E.C.R. I-1905 ECJ , 160 Gut Springenheide GmbH v Oberkreisdirektor des Kreises Steinfurt - Amt fur Lebensmitteluberwachung (C-210/96) [1998] E.C.R. I-4657; [1999] 1 C.M.L.R ECJ Haim v Kassenzahn E.C.R.04; [2014] 5 C.M.L.R. 22 (C-424/97) [2000] E.C.R. I-5123; [2002] 1 C.M.L.R. 11 ECJ Halaf v Darzhavna agentsia za bezhantsite pri Ministerskia savet (C-528/11) EU:C:2013:342; [2013] 1 W.L.R ECJ (4th Chamber) Halifax Plc v Commissioners of Customs and Excise (C-255/02) [2006] E.C.R. I-1609; [2006] 2 C.M.L.R. 36 ECJ Hartlauer Handelsgesellschaft mbh v Wiener Landesregierung (C-169/07) [2009] E.C.R. I-1721; [2009] 3 C.M.L.R. 5 ECJ , 164 Hay v Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres (C-267/12) EU:C:2013:823; [2014] 2 C.M.L.R. 32; [2014] C.E.C. 740 ECJ (5th Chamber) Heinrich, Proceedings brought by (C-345/06) [2009] E.C.R. I-1659; [2009] 3 C.M.L.R. 7 ECJ

207 xxvi Table of Cases Hoechst AG v Commission of the European Communities (46/87) [1989] E.C.R. 2859; [1991] 4 C.M.L.R. 410 ECJ Hofner v Macrotron GmbH (C-41/90) [1991] E.C.R. I-1979; [1993] 4 C.M.L.R. 306; (1991) 135 S.J.L.B. 54 ECJ (6th Chamber) Huawei Technologies Co Ltd v ZTE Corp (C-170/13) [2015] EU:C:2015:477; [2015] 5 C.M.L.R. 14 ECJ , 514 Humblet v Belgian State (6/60) [1960] E.C.R ECJ Hungary v Council (C-647/15) (3 December 2015) [2016] OJ C38/ , 348, 349, 352 ICI Plc v Colmer (Inspector of Taxes) (C-264/96) [1999] 1 W.L.R. 108; [1998] S.T.C. 874; [1998] E.C.R. I-4695; [1998] 3 C.M.L.R. 293; [1998] All E.R. (EC) 585; [1998] C.E.C. 861; [1998] B.T.C. 304 ECJ Iida v Stadt Ulm (C-40/11) EU:C:2012:691; [2013] Fam. 121; [2013] 2 W.L.R. 788; [2013] 1 C.M.L.R. 47; [2014] All E.R. (EC) 619 ECJ , 502, 507 IMS Health GmbH & Co OHG v NDC Health GmbH & Co KG (C-418/01) [2004] E.C.R. I-5039; [2004] 4 C.M.L.R. 28 ECJ , 213, 217, 246, 247 IMS Health Inc v Commission of the European Communities (T-184/01 R) [2001] E.C.R. II-3193; [2002] 4 C.M.L.R. 2 CFI International Transport Workers Federation and Finnish Seamen s Union v Viking Line ABP (C-438/05) [2007] E.C.R I-10779; [2008] 1 C.M.L.R. 51; [2008] All E.R. (EC) 127; [2008] C.E.C. 332; [2008] I.C.R. 741; [2008] I.R.L.R. 143 ECJ (Grand Chamber) , 165, 166, 172, , 441, 442, 618, 619 Internationale Handelsgesellschaft mbh v Einfuhr-und Vorratsstelle fur Getreide und Futtermittel (11/70); Einfuhr und Vorratsstelle fur Getreide und Futtermittel v Firma Koster, Berodt & Co (25/70); Einfuhr und Vorratsstelle fur Getreide und Futtermittel v Firma Gunther Henck (26/70); Firma Ottoscheer v Einfuhr und Vorratsstelle fur Getreide und Futtermittel (30/70) [1970] E.C.R. 1125; [1972] C.M.L.R. 255 ECJ , 496 Inuit Tapiriit Kanatami v Council of the European Communities (C-583/11 P) EU:C:2013:625; [2014] 1 C.M.L.R. 54 ECJ Ismeri Europa Srl v Court of Auditors (C-315/99 P) [2001] E.C.R. I-5281 ECJ Istituto Chemioterapico Italiano SpA v Commission of the European Communities (Commercial Solvents) (6/73 and 7/73) [1974] E.C.R. 223; [1974] 1 C.M.L.R. 309 ECJ Italy and Spain v Commission of the European Communities (T-124/13 and T-191/13) EU:T:2015:690 CFI Italy v Commission of the European Communities (C-566/10 P) EU:C:2012:752; [2013] 2 C.M.L.R. 5 ECJ , 187, 189, 196, 197 Italy v Commission of the European Communities (T-185/05) [2008] E.C.R. II-3207; [2009] 1 C.M.L.R. 34 ECJ , 186 Itelcar - Automoveis de Aluguer Lda v Fazenda Publica (C-282/12) EU:C:2013:629; [2013] B.T.C. 681 ECJ (4th Chamber) Jan de Nul NV v Hauptzollamt Oldenburg (C-391/05) [2007] E.C.R. I-1793 ECJ Jobcenter Berlin Neukolln v Alimanovic (C-67/14) EU:C:2015:597; [2016] Q.B. 308; [2016] 2 W.L.R. 208; [2016] 1 C.M.L.R. 29 ECJ (Grand Chamber) Jobra Vermögensverwaltungs-Gesellschaft mbh v Finanzamt Amstetten Melk Scheibbs (C-330/07) [2008] E.C.R I-9099; [2009] 1 C.M.L.R. 41 ECJ Josemans v Burgemeester van Maastricht (C-137/09) [2011] 2 C.M.L.R. 19 ECJ (2nd Chamber) Julian Hernandez v Spain (C-198/13) EU:C:2014:2055; [2014] All E.R. (EC) 971 ECJ Jyske Finans A/S v Skatteministeriet (C-280/04) [2005] E.C.R. I-10683; [2006] C.E.C. 404 ECJ Ker-Optika bt v ANTSZ Del-dunantuli Regionalis Intezete (C-108/09) [2010] E.C.R. I-12213; [2011] 2 C.M.L.R Kersbergen-Lap v Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen (C-154/05) [2006] E.C.R. I-6249 ECJ Kibler v Land Baden-W.R. I-6249u(C-275/05) [2006] E.C.R. I ECJ Kiiski v Tampereen Kaupunki (C-116/06) [2007] E.C.R. I-7643; [2008] 1 C.M.L.R. 5; [2008] C.E.C. 199 ECJ (4th Chamber) Kik v OHIM (C-361/01 P) [2003] E.C.R. I-8283; [2004] E.T.M.R. 30 ECJ , 184, 186, 191, , 198 Kohll v Union des caisses de maladie (C-158/96) [1998] E.C.R. I-1931; [1998] 2 C.M.L.R. 928 ECJ , 151, 154, 156,

208 Table of Cases xxvii Kone AG v ÖBB-Infrastruktur AG (C-557/12) EU:C:2014:1317; [2014] 5 C.M.L.R. 5; [2015] C.E.C. 539 ECJ (5th Chamber) , 400, 401, 404, , 410, 411 Konkurrensverket v TeliaSonera Sverige AB (C-52/09) [2011] E.C.R. I-527; [2011] 4 C.M.L.R. 18 ECJ , 210, 212 Konstantinidis v Stadt Altensteig-Standesamt (C-168/91) [1993] E.C.R. I-1191; [1993] 3 C.M.L.R. 401 ECJ Konsumentombudsmannen v De Agostini (C-34/95) [1997] E.C.R. I-3843; [1998] 1 C.M.L.R. 32 ECJ Kücükdeveci v Swedex GmbH & Co KG (C-555/07) [2010] 2 C.M.L.R. 33; [2011] 2 C.M.L.R. 27; [2010] All E.R. (EC) 867; [2011] C.E.C. 3; [2010] I.R.L.R. 346 ECJ (Grand Chamber) , 106 Ladbrokes Betting & Gaming Ltd v Stichting de Nationale Sporttotalisator (C-258/08) [2010] 3 C.M.L.R. 40; [2013] All E.R. (EC) 62; [2011] C.E.C. 212 ECJ Lamberts v European Ombudsman (T-209/00) [2002] E.C.R. II-2203; [2003] 1 C.M.L.R. 32 CFI Land of Baden-Württemberg v Tsakouridis (C145/09) EU:C:2010:322; [2011] 2 C.M.L.R. 11; [2013] All E.R. (EC) 183; [2011] C.E.C. 714; [2011] Imm. A.R. 276; [2011] I.N.L.R. 415 ECJ (Grand Chamber) , 560, 562, 570, 571 Landeshauptstadt Kiel v Jaeger (C-151/02) [2003] E.C.R. I-8389; [2003] 3 C.M.L.R. 16; [2004] All E.R. (EC) 604; [2004] I.C.R. 1528; [2003] I.R.L.R. 804; (2004) 75 B.M.L.R. 201 ECJ , 398 Lange v Georg Schunemann GmbH (C-350/99) [2001] E.C.R. I-1061; [2001] All E.R. (EC) 481; [2001] I.R.L.R. 244; [2001] Emp. L.R. 247 ECJ (5th Chamber) Lankhorst-Hohorst GmbH v Finanzamt Steinfurt (C-324/00) [2003] S.T.C. 607; [2002] E.C.R. I-11779; [2003] 2 C.M.L.R. 22; [2003] B.T.C. 254; 5 I.T.L. Rep. 467; [2002] S.T.I ECJ (5th Chamber) , 45, 53, 56, , 60, 65, 66, 67, 68, 71, 157 Las v PSA Antwerp NV (C-202/11) EU:C:2013:239; [2013] 3 C.M.L.R. 22 ECJ , 187, 189 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet (C-341/05) [2007] E.C.R. I-11767; [2008] 2 C.M.L.R. 9 ECJ , 163, 165, 166, , 440, 441, 442, 618, 619 Lawrence v Regent Office Care Ltd (C-320/00) [2002] E.C.R. I-7325; [2002] 3 C.M.L.R. 27; [2003] I.C.R. 1092; [2002] I.R.L.R. 822; [2002] Emp. L.R ECJ Lawrie-Blum v Land Baden-Wurttemberg (66/85) [1986] E.C.R. 2121; [1987] 3 C.M.L.R. 389; [1987] I.C.R. 483 ECJ , 382 Léger v Ministre des Affaires sociales, de la Santé et des Droits des femmes (C-528/13) EU:C:2015:288; [2015] 3 C.M.L.R. 36; [2015] All E.R. (EC) 755 ECJ (4th Chamber) , 93, 94, 95, , 98, 101, 103 Levin v Staatssecretaris van Justitie (53/81); sub nom. Levin v Secretary of State for Justice (53/81) [1982] E.C.R. 1035; [1982] 2 C.M.L.R. 454 ECJ Leur-Bloem v Inspecteur der Belastingdienst/Ondernemingen Amsterdam 2 (C-28/95) [1997] E.C.R. I-4161; [1998] 1 C.M.L.R. 157 ECJ Lorrai, Criminal Proceedings against (C-224/13) EU:C:2013: Lutz v Bauerle (C-557/13) EU:C:2015:227; [2015] Bus. L.R. 855; [2015] B.C.C. 413; [2015] C.E.C. 1015; [2015] I.L.Pr. 21 ECJ (1st Chamber) , 79, 80, 81, Mallis and Malli v Commission of the European Communities and European Central Bank (T-327/13) EU:T:2014: Manfredi v Lloyd Adriatico Assicurazioni SpA (C-295/04); Cannito v Fondiaria Sai SpA (C-296/04); Tricarico v Assitalia SpA (C-297/04); Murgulo v Assitalia SpA (C-298/04) [2007] Bus. L.R. 188; [2006] E.C.R. I-6619; [2007] R.T.R. 7; [2006] 5 C.M.L.R. 17; [2007] All E.R. (EC) 27 ECJ (3rd Chamber) , 410 Mangold v Helm (C-144/04) [2005] E.C.R. I-9981; [2006] 1 C.M.L.R. 43; [2006] All E.R. (EC) 383; [2006] C.E.C. 372; [2006] I.R.L.R. 143 ECJ Manninen, Proceedings brought by (C-319/02) [2004] E.C.R. I-7477; [2004] 3 C.M.L.R. 40 ECJ Marc Rich & Co AG v Societa Italiana Impianti SpA (C-190/89) [1991] E.C.R. I-3855; [1992] 1 Lloyd s Rep. 342; [1991] E.C.R. I-3855; [1991] I.L.Pr Marks & Spencer Plc v Halsey (Inspector of Taxes) (C-446/03) [2006] Ch. 184; [2006] 2 W.L.R. 250; [2006] S.T.C. 237; [2005] E.C.R. I-10837; [2006] 1 C.M.L.R. 18; [2006] All E.R. (EC) 255; [2006] C.E.C. 299; [2006] B.T.C. 318; 8 I.T.L. Rep. 358; [2006] S.T.I. 41 ECJ , 157 Martínez Sala v Freistat Bayern (C-85/96) [1998] E.C.R. I-2691 ECJ Maruko v Versorgungsanstalt der Deutschen Buhnen (C-267/06) [2008] E.C.R. I-1757; [2008] 2 C.M.L.R. 32; [2008] All E.R. (EC) 977; [2008] I.R.L.R. 450; [2008] Pens. L.R. 223 ECJ (Grand Chamber)

209 xxviii Table of Cases max.mobil v Commission of the European Communities (T-54/99) [2002] E.C.R. II-313; [2002] 4 C.M.L.R. 32 CFI Mazzoleni, Criminal Proceedings against (C-165/98) [2001] E.C.R. I-2189; [2003] 2 C.M.L.R. 10 ECJ , 161, 163 McB v E (C-400/10 PPU) [2010] E.C.R. I-8965; [2011] Fam. 364; [2011] 3 W.L.R. 699; [2011] All E.R. (EC) 379; [2011] I.L.Pr. 24; [2011] 1 F.L.R. 518; [2011] 2 F.C.R. 382; [2011] Fam. Law 8 ECJ Melgar v Ayuntamiento de Los Barrios (C438/99) [2001] E.C.R. I-6915; [2003] 3 C.M.L.R. 4; [2004] I.C.R. 610; [2001] I.R.L.R. 848; [2002] Emp. L.R. 11 ECJ (5th Chamber) Melki, Proceedings against (C-188/10) [2010] E.C.R. I-5667; [2011] 3 C.M.L.R. 45; [2012] C.E.C. 567 ECJ (Grand Chamber) Melloni v Ministerio Fiscal (C-399/11) EU:C:2013:107; [2013] Q.B. 1067; [2013] 3 W.L.R. 717; [2013] 2 C.M.L.R. 43; [2013] All E.R. (EC) 475 ECJ (Grand Chamber) , 508, 510 Merino Gomez v Continental Industrias del Caucho SA (C-342/01) [2004] E.C.R. I-2605; [2004] 2 C.M.L.R. 3; [2005] I.C.R. 1040; [2004] I.R.L.R. 407 ECJ (6th Chamber) Meroni v High Authority (9/56) [ ] E.C.R. 133 ECJ , 333, 377 Meroni & Co v High Authority of the European Coal and Steel Community (14, 16, 17, 20, 24, 26 and 27/60 and 1/61) [1961] E.C.R. 321 ECJ Michaniki AE v Ethniko Simvoulio Radiotileorasis (C-213/07) [2008] E.C.R. I-9999; [2010] 1 C.M.L.R. 43 ECJ Microsoft Corp v Commission of the European Communities (T-201/04) [2007] E.C.R. II-3601; [2007] 5 C.M.L.R. 11 CFI , 213, 215, 218, 249 Minister voor Immigratie en Asiel v X (C-199/12) EU:C:2013:720; [2014] Q.B. 1111; [2014] 3 W.L.R. 770; [2014] 2 C.M.L.R. 16; [2014] Imm. A.R. 440; [2014] I.N.L.R. 827 ECJ (4th Chamber) Ministerul Administratiei si Internelor (MAI), Inspectoratul General al Politiei Române (IGPR) and Inspectoratul de Politie al Judetului Tulcea (IPJ) v Corpul National al Politistilor Biroul Executiv Central (C-134/12) EU:C:2012:288 ECJ Mlamali v Caisse d allocations familiales des Bouches-du-Rhône (C-257/13) EU:C:2013: Morellato v Comune di Padova (C-416/00) [2003] E.C.R. I-9343; [2006] 1 C.M.L.R. 31 ECJ Müller-Fauré v Onderlinge Waarborgmaatschappij OZ Zorgverzekeringen UA (C-385/99) [2003] E.C.R. I-4509; [2004] 2 C.M.L.R. 33 ECJ , 155, 427, 429 Nagy v Hajdú-Bihar Megyei Kormányhivatal (C-488/12) EU:C:2013: NCC Construction Danmark A/S v Skatteministeriet (C-174/08) [2009] E.C.R. I-10567; [2010] B.V.C ECJ Nederlandse Bakkerij Stichting v Edah BV (80/85) [1988] E.C.R 3359; [1988] 2 C.M.L.R. 113 ECJ Nike European Operations Netherlands BV v Sportland Oy (C-310/14) EU:C:2015:690; [2015] Bus. L.R ECJ (6th Chamber) Nilsson, Hagelgren and Arrborn, Criminal Proceedings against (C-162/97) [1998] E.C.R. I N81C: v Council and Commission of the European Communities (T-167/94) [1995] E.C.R. II-2589 CFI North Kerry Milk Products Ltd v Minister for Agriculture and Fisheries (80/76) [1977] E.C.R. 425 ECJ O v Minister voor Immigratie, Integratie en Asiel (C-456/12) EU:C:2013:474; [2014] Q.B. 1163; [2014] 3 W.L.R. 799; [2014] 3 C.M.L.R. 17; [2014] All E.R. (EC) 843; [2014] Imm. A.R. 828; [2014] I.N.L.R. 748 ECJ (Grand Chamber) O Brien v Ministry of Justice (C-393/10) EU:C:2012:110; [2012] 2 C.M.L.R. 25; [2012] All E.R. (EC) 757; [2012] I.C.R. 955; [2012] I.R.L.R. 421 ECJ (2nd Chamber) O Flynn v Adjudication Officer (C-237/94) [1996] E.C.R. I-2617; [1996] 3 C.M.L.R. 103; [1996] All E.R. (EC) 541; [1998] I.C.R. 608; (1997) 33 B.M.L.R. 54 ECJ (5th Chamber) Oebel, Summary Proceedings against (155/80) [1981] E.C.R ECJ Officier van Justitie v De Peijper (104/75) [1976] E.C.R. 613; [1976] 2 C.M.L.R. 271 ECJ , 197 Officier van Justitie v Sandoz BV (174/82) [1983] E.C.R. 2445; [1984] 3 C.M.L.R. 43 ECJ (5th Chamber) , 150, 153 Omega Spielhallen- und Automatenaufstellungs GmbH v Bundesstadt Bonn (C-36/02) [2004] E.C.R. I-9609; [2005] 1 C.M.L.R. 5; [2005] C.E.C. 391 ECJ (1st Chamber) , 505 Onuekwere v Secretary of State for the Home Department (C-378/12) EU:C:2014:13; [2014] 1 W.L.R. 2420; [2014] 2 C.M.L.R. 46; [2014] C.E.C. 1007; [2014] Imm. A.R. 551; [2014] I.N.L.R , 559, 560, 561, , 566, 570, 571, 573, 574, 577 Openbaar Ministerie (Public Prosecutor) of the Kingdom of the Netherlands v Van Tiggele (82/77) [1978] E.C.R. 25 ECJ Opinion pursuant to Article 218(11) TFEU (2/13) EU:C:2014:2454; [2015] 2 C.M.L.R. 21; [2015] All E.R. (EC) 463 ECJ , 419, 497, 564

210 Table of Cases xxix Ordre des architectes (C-365/13) EU:C:2014: Orlando Arango Jaramillo v BEI (T-234/11 P) Unreported 19 June 2012 CFI Oscar Bronner GmbH & Co KG v Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co KG (C-7/97) [1998] E.C.R. I-7791; [1999] 4 C.M.L.R. 112 ECJ , 247 Parliament v Council (Restrictive measures against individuals) (C-130/10) EU:C:2012: Parti Écologiste Les Verts v European Parliament (294/83) [1986] E.C.R. 1339; [1987] 2 C.M.L.R. 343 ECJ , 416, 489 Pergan Hilfsstoffe für industrielle Prozesse GmbH v Commission (T-474/04) [2007] E.C.R. II-4225; [2008] 4 C.M.L.R. 4 CFI Persche v Finanzamt L.R. II-4225(C-318/07) [2009] E.C.R. I-359; [2009] 2 C.M.L.R. 32 ECJ Petru v Casa Judeteana de Asigurari de Sanatate Sibiu (C-268/13) EU:C:2014:2271; [2015] P.T.S.R. 139; [2015] All E.R. (EC) 571; [2015] C.E.C. 669; (2014) 158(40) S.J.L.B. 37 ECJ (3rd Chamber) , 425, 427, 428, Pfeiffer v Deutsches Rotes Kreuz Kreisverband Waldshut ev (C-397/01) [2004] E.C.R. I-8835; [2005] 1 C.M.L.R. 44; [2005] I.C.R. 1307; [2005] I.R.L.R. 137 ECJ Pfleger, Proceedings Brought by (C-390/12) EU:C:2014:281; [2014] 3 C.M.L.R. 47 ECJ (3rd Chamber) , 507 Pfleiderer AG v Bundeskartellamt (C-360/09) [2011] E.C.R. I-5161; [2011] 5 C.M.L.R. 7; [2011] All E.R. (EC) 979; [2012] C.E.C. 50 ECJ (Grand Chamber) PI v Oberbürgermeisterin der Stadt Remscheid (C-348/09) EU:C:2012:300; [2012] Q.B. 799; [2012] 3 W.L.R. 662; [2012] 3 C.M.L.R. 13; [2013] All E.R. (EC) 218; [2013] C.E.C. 142; [2012] Imm. A.R. 917; [2013] I.N.L.R. 171 ECJ (Grand Chamber) , 570 Plantanol GmbH & Co KG v Hauptzollamt Darmstadt (C-201/08) [2009] E.C.R. I-8343 ECJ , 282 Plaumann v Commission of the European Communities (25/62) [1963] E.C.R. 95; [1964] C.M.L.R. 29 ECJ Portugaia Construcoes, Re (C-164/99) [2002] E.C.R. I-787 ECJ (5th Chamber) , 161, 162, 167 Post Danmark A/S v Konkurrenceradet (C-209/10) [2012] EU:C:2012:172; [2012] 4 C.M.L.R. 23; [2013] All E.R. (EC) 950 ECJ , 208, 210 Post Danmark A/S v Konkurrenceradet (C-23/14) EU:C:2015:651; [2015] 5 C.M.L.R. 25 ECJ (2nd Chamber) PreussenElektra AG v Schleswag AG (C-379/98) [2001] E.C.R. I-2099; [2001] 2 C.M.L.R. 36; [2001] All E.R. (EC) 330; [2001] C.E.C. 217; [2002] Env. L.R. 3 ECJ Pringle v Ireland (C-370/12) EU:C:2012:756; [2013] 2 C.M.L.R. 2; [2013] All E.R. (EC) 1 ECJ , 9, 12, 22, Pubblico Ministero v Ratti (148/78) [1979] E.C.R. 1629; [1980] 1 C.M.L.R. 96 ECJ Pupino, Criminal Proceedings against (C-105/03) [2006] Q.B. 83; [2005] 3 W.L.R. 1102; [2005] E.C.R. I-5285; [2005] 2 C.M.L.R. 63; [2006] All E.R. (EC) 142; [2006] C.E.C. 448 ECJ Cullet v Centre Leclerc à Toulouse (231/83) [1985] E.C.R. 305 ECJ R&V Haegeman Sprl v Belgium (181/73) [1974] E.C.R. 449; [1975] 1 C.M.L.R. 515 ECJ R. v Henn (Maurice Donald) (34/79) [1980] 2 W.L.R. 597; [1980] 2 All E.R. 166; [1979] E.C.R. 3795; [1980] 1 C.M.L.R. 246 ECJ R. v Ministry of Agriculture, Fisheries and Food Ex p. Federation Européene de la Santé Animale (FEDESA) (C-331/88) [1990] E.C.R. I-4023; [1991] 1 C.M.L.R. 507 ECJ (5th Chamber) , 197 R. v Secretary of State for Health Ex p. Gallaher (C-11/92) [1993] E.C.R. I-3545 ECJ R. v Secretary of State for the Home Department Ex p. Evans Medical (C-324/93) [1995] E.C.R. I-563; [1996] 1 C.M.L.R. 53 ECJ , 154 R. v Thompson (7/78) [1978] E.C.R ECJ R. (on the application of Bidar) v Ealing LBC (C-209/03) [2005] E.C.R. I-2119; [2005] 2 C.M.L.R. 3 ECJ R. (on the application of Broadcasting, Entertainment, Cinematographic and Theatre Union (BECTU)) v Secretary of State for Trade and Industry (C-173/99) [2001] 1 W.L.R. 2313; [2001] E.C.R. I-4881; [2001] 3 C.M.L.R. 7; [2001] All E.R. (EC) 647; [2001] C.E.C. 276; [2001] I.C.R. 1152; [2001] I.R.L.R. 559; [2001] Emp. L.R ECJ (6th Chamber) R. (on the application of International Air Transport Association (IATA)) v Department of Transport (C-344/04) [2006] E.C.R. I-403; [2006] 2 C.M.L.R. 20 ECJ R. (on the application of NS) v Secretary of State for the Home Department (C-411/10); E v Refugee Applications Commissioner (C-493/10); sub nom. ME v Refugee Applications Commissioner (C-493/10); NS v Secretary of State for the Home Department (C-411/10) EU:C:2011:865; [2013] Q.B. 102; [2012] 3 W.L.R. 1374; [2012] 2 C.M.L.R. 9; [2012] All E.R. (EC) 1011; (2012) 109(29) L.S.G. 26 ECJ (Grand Chamber) , 355, 500, 501

211 xxx Table of Cases R. (on the application of Watts) v Bedford Primary Care Trust (C-372/04) [2006] Q.B. 667; [2006] 3 W.L.R. 213; [2006] E.C.R. I-4325; [2006] 3 C.M.L.R. 5; [2006] All E.R. (EC) 835; [2006] C.E.C. 884; (2006) 90 B.M.L.R. 150 ECJ , 155, 425, 426, Radio Telefis Eireann v Commission of the European Communities (Magill) (C-241/91 P) [1995] E.C.R. I-743; [1995] 4 C.M.L.R. 718; [1995] All E.R. (E.C.) 416; [1995] E.M.L.R. 337; [1995] F.S.R. 530; [1998] Masons C.L.R. Rep. 58 ECJ , 213, 217, 247 Rechnungshof v Österreichischer Rundfunk (C-465/00) [2003] E.C.R. I-4989; [2003] 3 C.M.L.R. 10 ECJ RegioPost v Stadt Landau in der Pfalz (C-115/14) EU:C:2015:760; [2016] I.R.L.R. 125 ECJ , 166 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein; sub nom Cassis de Dijon (120/78) [1979] E.C.R. 649; [1979] 3 C.M.L.R. 494 ECJ , 151, 239, 521, 594 Rijn-Schelde-Verolme (RSV) Machinefabrieken en Scheepswerven NV v Commission of the European Communities (223/85) [1987] E.C.R ECJ Robinson-Steele v RD Retail Services Ltd (C-131/04); Caulfield v Hanson Clay Products Ltd (C-257/04); Clarke v Frank Staddon Ltd (C-257/04) [2006] E.C.R. I-2531; [2006] 2 C.M.L.R. 34; [2006] All E.R. (EC) 749; [2006] C.E.C. 771; [2006] I.C.R. 932; [2006] I.R.L.R. 386 ECJ (1st Chamber) Römer v Freie und Hansestadt Hamburg (C-147/08) [2013] 2 C.M.L.R. 11; [2011] Eq. L.R. 921 ECJ (Grand Chamber) , 103 Roquette FrM.L. v Council of Ministers of the European Communities (138/79) [1980] E.C.R ECJ Röser, Criminal Proceedings against (238/84) [1986] E.C.R. 795 ECJ Royal Bank of Scotland Plc v Greece (C-311/97) [2000] S.T.C. 733; [1999] E.C.R. I-2651; [1999] 2 C.M.L.R. 973; [1999] C.E.C. 442 ECJ (5th Chamber) Rüffert v Land Niedersachsen (C-346/06) [2008] E.C.R. I-1989; [2008] 2 C.M.L.R. 39 ECJ , 164, 166, 169, 170 Runevič-Vardyn v Vilniaus Miesto Savivaldybes Administracija (C-391/09) [2011] E.C.R. I-3787; [2011] 3 C.M.L.R. 13 ECJ , 189 Rush Portuguesa Lda v Office national d immigration (C-113/89) [1990] E.C.R. I-1417; [1991] 2 C.M.L.R. 818 ECJ , 160 Ryanair Holdings Plc v Commission of the European Communities (T-342/07) [2010] E.C.R. II-3457; [2011] 4 C.M.L.R. 4 CFI , 206, 207 Säger v Dennemeyer & Co Ltd (C-76/90) [1991] E.C.R. I-4221; [1993] 3 C.M.L.R. 639 ECJ , 526 Sähköalojen ammattiliitto ry v Elektrobudowa Spólka Akcyjna (C-396/13) EU:C:2015:86; [2015] 3 C.M.L.R. 10 ECJ Santos Palhota, Criminal Proceedings against (C-515/08) [2010] E.C.R. I-9133; [2011] 1 C.M.L.R. 34 ECJ SAT Fluggesellschaft mbh v European Organisation for the Safety of Air Navigation (Eurocontrol) (C-364/92) [1994] E.C.R. I-43; [1994] 5 C.M.L.R. 208 ECJ Sayn-Wittgenstein v Landeshauptmann von Wien (C-208/09) [2010] E.C.R. I-13693; [2011] 2 C.M.L.R. 28 ECJ , 189, 505 SC Schuster & Co Ecologic v Direcţia Generală a Finanţelor Publice a Judeţului Sibiu (C-371/13) EU:C:2013:748 ECJ Schmid v Hertel (C-328/12) EU:C:2014:6; [2014] 1 W.L.R. 633; [2015] B.C.C. 25; [2014] C.E.C. 846; [2014] I.L.Pr. 11; [2014] B.P.I.R. 504; (2014) 164(7593) N.L.J. 19 ECJ (1st Chamber) Schönberger v European Parliament (C-261/13 P) EU:C:2014:2423; [2015] 2 C.M.L.R. 8 ECJ , 199 Schrems v Data Protection Commissioner (C-362/14) EU:C:2015:650; [2016] Q.B. 527; [2016] 2 W.L.R. 873; [2016] 2 C.M.L.R. 2; [2016] C.E.C. 647 ECJ (Grand Chamber) Seagon v Deko Marty Belgium NV (C-339/07) [2009] 1 W.L.R. 2168; [2009] Bus. L.R. 1151; [2009] E.C.R. I-767; [2009] B.C.C. 347; [2009] I.L.Pr. 25 ECJ (1st Chamber) Secretary of State for the Home Department v MG (Portugal) (C-400/12) EU:C:2014:9; [2014] 1 W.L.R. 2441; [2014] 2 C.M.L.R. 40; [2014] Imm. A.R. 561; [2014] I.N.L.R. 670 ECJ (Second Chamber) , 559, 562, 563, , 571, 573, 577 Severi v Regione Emilia Romagna (C-446/07) [2009] E.C.R. I-8041; [2009] E.T.M.R. 64 ECJ SIA Maxima Latvija v Konkurences padome (C-345/14) EU:C:2015:784; [2015] Bus. L.R. 1565; [2016] 4 C.M.L.R. 1 ECJ (4th Chamber) Simmenthal SpA v Commission of the European Communities (C-243/78) [1980] E.C.R. 593 ECJ Sindicato de Medicos de Asistencia Publica (SIMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana (C-303/98) [2000] E.C.R. I-7963; [2001] 3 C.M.L.R. 42; [2001] All E.R. (EC) 609; [2001] I.C.R. 1116; [2000] I.R.L.R. 845 ECJ , 398

212 Table of Cases xxxi Sindicato dos Bancáios do Norte v BPN Banco Português de Negócios SA (C-128/12) EU:C:2013: , 437 Sindicato Nacional dos Profissionais de Seguros e Afins v Fidelidade Mundial Companhia de Seguros, SA (C-264/12) EU:C:2014: Sindicato Nacional dos Profissionais de Seguros e Afins v Via Directa Companhia de Seguros SA (C-665/13) EU:C:2014: Siragusa v Regione Sicilia - Soprintendenza Beni Culturali e Ambientali di Palermo (C-206/13) EU:C:2014:126; [2014] 3 C.M.L.R. 13 ECJ Slob v Productschap Zuivel (C-496/04) [2006] E.C.R. I-8257 ECJ Slovak Republic v Council (C-643/15) (2 December 2015) [2016] OJ C38/ , 348, 351, 352 Slovak Telekom v Commission of the European Communities (T-458/09) EU:T:2012:145; [2012] 4 C.M.L.R. 28 GC (8th Chamber) Sociedade Agrícola e Imobiliária da Quinta de S. Paio v Instituto da Segurança Social IP (C-258/13) EU:C:2013:810 ECJ Société anonyme de droit français Seco v Etablissement d assurance contre la vieillesse et l invalidité (62/81) [1982] E.C.R. 223 ECJ Société nouvelle des usines de Pontlieue Aciéries du Temple (SNUPAT) v High Authority (42/59) [1961] E.C.R Society for the Protection of Unborn Children (Ireland) Ltd (SPUC) v Grogan (C-159/90) [1991] E.C.R. I-4685; [1991] 3 C.M.L.R. 849 ECJ Sot Lelos kai Sia EE v GlaxoSmithKline (C-468/06) [2008] E.C.R. I-7139; [2008] 5 C.M.L.R. 20 ECJ Spain v Council of the European Union (C-274/11) EU:C:2013:240 [2013] 3 C.M.L.R. 24; [2013] All E.R. (EC) 874 ECJ (Grand Chamber) Spain v Eurojust (C-160/03) [2005] E.C.R. I-2077 ECJ , 184, 185, 187, Spain v United Kingdom (C-145/04) [2006] E.C.R. I-7917; [2007] 1 C.M.L.R. 3; [2007] All E.R. (EC) 486 ECJ Sporting Exchange Ltd (t/a Betfair) v Minister van Justitie (C-203/08) [2010] E.C.R. I-4695; [2010] 3 C.M.L.R. 41; [2011] C.E.C. 313 ECJ Staat der Nederlanden v Essent NV (C-105/12) EU:C:2013:677 ECJ Staatssecretaris van Financint NV.R. (EC) 8(C-35/98) [2001] E.C.R. I-4071; [2002] 1 C.M.L.R. 48 ECJ , 151 Stadtsportverband Neuss ev v Commission of the European Communities (T-137/01) [2003] E.C.R. II-3103 CFI Stoss v Wetteraukreis (C-316/07) [2010] E.C.R. I-8069; [2011] 1 C.M.L.R. 20 ECJ Stringer v Revenue and Customs Commissioners (C-520/06); Schultz-Hoff v Deutsche Rentenversicherung Bund (C-350/06) [2009] E.C.R. I-179; [2009] 2 C.M.L.R. 27; [2009] All E.R. (EC) 906; [2009] I.C.R. 932; [2009] I.R.L.R. 214 ECJ (Grand Chamber) Sumitomo Chemical Co Ltd v Commission of the European Communities (T-22/02) [2005] E.C.R. II-4065; [2006] 4 C.M.L.R. 3 CFI Syndesmos ton en Elladi Touristikon kai Taxidiotikon Grafeion (SETTG) v Ergasias (C-398/95) [1997] E.C.R. I-3091; [1998] 1 C.M.L.R. 420 ECJ Talasca v Stadt Kevelaer (C-19/14) EU:C:2014: Technische UniversitC.R. I-3091; [1998] 1 C.M.L.R. 420rafeio(C-269/90) [1991] E.C.R. I-5469; [1994] 2 C.M.L.R. 187 ECJ Tegebauer v European Parliament (T-308/07) [2011] E.C.R. II-279 CFI Tele Danmark A/S v Handels- og Kontorfunktionaerernes Forbund i Danmark (C109/00) [2001] E.C.R. I-6993; [2002] 1 C.M.L.R. 5; [2001] All E.R. (EC) 941; [2004] I.C.R. 610; [2001] I.R.L.R. 853; [2001] Emp. L.R ECJ (5th Chamber) Test Claimants in the Thin Cap Group Litigation v IRC (C-524/04) [2007] S.T.C. 906; [2007] E.C.R. I-2107; [2007] 2 C.M.L.R. 31; [2008] B.T.C. 348; 9 I.T.L. Rep. 877; [2007] S.T.I. 538 ECJ (Grand Chamber) , 157 Tetra Pak Rausing SA v Commission of the European Communities (T-51/89) [1990] E.C.R. II-309; [1991] 4 C.M.L.R. 334; [1991] F.S.R. 654 CFI Thomsen v Amt für ländliche Räume Husum (C-401/99) [2002] E.C.R. I-5775 ECJ ThyssenKrupp Nirosta GmbH (formerly ThyssenKrupp Stainless AG) v European Commission (C-352/09 P) [2013] 4 C.M.L.R. 19 ECJ (Grand Chamber) Thyssenkrupp Stainless GmbH v Commission of the European Communities (C-65/02 P) [2005] E.C.R. I-6773; [2005] 5 C.M.L.R. 16 ECJ (1st Chamber) Tobacco Advertising. See Germany v European Parliament Torresi v Consiglio dell Ordine degli Avvocati di Macerata (C-58/13) EU:C:2014:2088; [2015] Q.B. 331 ECJ

213 xxxii Table of Cases Tümer v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen (C-311/13) EU:C:2014:2337; [2015] 1 C.M.L.R. 42; [2015] All E.R. (EC) 291; [2015] I.C.R. D6 ECJ (5th Chamber) , 392 Turco v Council of the European Union (C-39/05) [2008] E.C.R. I-4723; [2008] 3 C.M.L.R. 17 ECJ , 200 Turner v Grovit (C-159/02) [2004] E.C.R. I-3565; [2005] 1 A.C. 101; [2004] 3 W.L.R. 1193; [2004] 2 All E.R. (Comm) 381; [2004] 2 Lloyd s Rep. 169; [2004] E.C.R. I-3565; [2004] 1 C.L.C. 864; [2004] All E.R. (EC) 485; [2004] I.L.Pr. 25; [2005] I.C.R. 23; [2004] I.R.L.R. 899 ECJ UEAPME v Council of the European Union (T-135/96) [1998] E.C.R. II-2335; [1998] 3 C.M.L.R. 385 CFI UNECTEF v Heylens (222/86) [1987] E.C.R ECJ Unger v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten (75/63) [1964] E.C.R. 177; [1964] C.M.L.R. 319 ECJ Union Syndicale Solidaires Isere v Premier Ministre (C-428/09) [2010] E.C.R. I-9961; [2011] 1 C.M.L.R. 38; [2011] C.E.C. 847; [2011] I.R.L.R. 84 ECJ (2nd Chamber) , 386 United Kingdom v Council of the European Union (C-84/94) [1996] E.C.R. I-5755; [1996] 3 C.M.L.R. 671; [1996] All E.R. (EC) 877; [1997] I.C.R. 443; [1997] I.R.L.R. 30 ECJ , 387 United Kingdom v Council of the European Union (C-209/13) EU:C:2014:283; [2014] S.T.C. 1228; [2014] 3 C.M.L.R. 48; [2014] All E.R. (EC) 951; [2014] B.T.C. 23; [2014] S.T.I ECJ (2nd Chamber) , 120, 329, 479 United Kingdom v European Central Bank (ECB) (T-496/11) EU:T:2015:133; [2015] 3 C.M.L.R. 8 GC (4th Chamber) , 123, 124, 125, , 128, 129, 330, 479 United Kingdom v European Parliament (C-270/12) EU:C:2014:18; [2014] 2 C.M.L.R. 44; [2014] All E.R. (EC) 251 ECJ (Grand Chamber) , 333, 479 United Kingdom v European Parliament (C-507/13) Van Gend en Loos v Nederlandse Administratie der Belastingen (26/62) [1963] E.C.R. 1; [1963] C.M.L.R. 105 ECJ Van Uden Maritime BV (t/a Van Uden Africa Line) v Kommanditgesellschaft in Firma Deco-Line (C-391/95) EU:C:1998:543; [1999] Q.B. 1225; [1999] 2 W.L.R. 1181; [1999] 1 All E.R. (Comm.) 385; [1998] E.C.R. I-7091; [1999] All E.R. (E.C.) 258; [1999] I.L.Pr. 73 ECJ Vanbraekel v Alliance nationale des mutualités chrétiennes (ANMC) (C-368/98) [2001] E.C.R. I-5363; [2002] 2 C.M.L.R. 20 ECJ , 425, 426 Vatsouras v Arbeitsgemeinschaft (ARGE) Nurnberg 900 (C-22/08) [2009] E.C.R. I-4585; [2009] All E.R. (EC) 747; [2009] C.E.C ECJ (3rd Chamber) , 382 Verein gegen Unwesen in Handel und Gewerbe Koln ev v Mars GmbH (C-470/93) [1995] E.C.R. I-1923; [1995] 3 C.M.L.R. 1 ECJ Vestische Arbeit Jobcenter Kreis Recklinghausen v Garcia-Nieto (C-299/14) EU:C:2015:366 ECJ Viamex Agrar Handels GmbH v Hauptzollamt Hamburg-Jonas (C-37/06 and C-58/06) [2008] E.C.R. I-69 ECJ Vodafone Ltd v Secretary of State for Business, Enterprise and Regulatory Reform (C-58/08) [2010] 3 C.M.L.R. 44; [2010] All E.R. (EC) 741 ECJ (Grand Chamber) Von Storch v European Central Bank (C-64/14 P) EU:C:2015: Von Storch v European Central Bank (T-492/12) EU:T:2013: Wachauf v Germany (C-5/88) [1989] E.C.R. 2609; [1991] 1 C.M.L.R. 328 ECJ , 506 Webb v EMO Air Cargo (UK) Ltd (C-32/93) [1994] Q.B. 718; [1994] 3 W.L.R. 941; [1994] 4 All E.R. 115; [1994] E.C.R. I-3567; [1994] 2 C.M.L.R. 729; [1994] I.C.R. 770; [1994] I.R.L.R. 482; (1994) 144 N.L.J ECJ (5th Chamber) Wielockx v Inspecteur der Directe Belastingen (C-80/94) [1996] 1 W.L.R. 84; [1995] S.T.C. 876; [1995] E.C.R. I-2493; [1995] 3 C.M.L.R. 85; [1995] All E.R. (E.C.) 769; [1995] Pens. L.R. 203 ECJ Wiener SI GmbH v Hauptzollamt Emmerich (C-338/95) [1997] E.C.R. I-6495; [1998] 1 C.M.L.R ECJ Wijsenbeek, Criminal Proceedings against (C-378/97) [1999] E.C.R. I-6207; [2001] 2 C.M.L.R. 53; [2000] I.N.L.R. 336 ECJ Winner Wetten GmbH v Burgermeisterin der Stadt Bergheim (C-409/06) [2010] E.C.R. I-8015; [2011] 1 C.M.L.R. 21 ECJ (Grand Chamber) Wippel v Peek & Cloppenburg GmbH & Co KG (C-313/02) [2004] E.C.R. I-9483; [2005] 1 C.M.L.R. 9; [2005] I.C.R. 1604; [2005] I.R.L.R. 211 ECJ Wolff & MC.R. I-6207; [2001] 2 C.M.L.R. 53; (C-60/03) [2004] E.C.R. I-9553; [2005] 1 C.M.L.R. 21 ECJ Yellow Cab Verkehrsbetriebs GmbH v Landeshauptmann von Wien (C-338/09) [2010] E.C.R. I-13927; [2011] 2 C.M.L.R. 23 ECJ

214 Table of Cases xxxiii Ymeraga v Ministre du Travail, de l Emploi et de l Immigration (C-87/12) EU:C:2013:291; [2013] 3 C.M.L.R. 33; [2013] Imm. A.R ECJ Zambrano v Office National de l Emploi (ONEm) (C-34/09) [2012] Q.B. 265; [2012] 2 W.L.R. 886; [2011] E.C.R. I-1177; [2011] 2 C.M.L.R. 46; [2011] All E.R. (EC) 491; [2011] 2 F.C.R. 491; [2011] Imm. A.R. 521; [2011] I.N.L.R. 481 ECJ (Grand Chamber) , 507, 512 Zentrale zur Bekampfung unlauteren Wettbewerbs ev v Adolf Darbo AG (C-366/08) [2009] E.C.R. I-8439 ECJ , 594 National Cases Canada Sauvé v Chief Electoral Officer (2002) 3 S.C.R. 519 SC Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 FC Germany Application of Wunsche Handesgesellschaft, Re (2 BvR 197/83) [1987] 3 C.M.L.R. 225 Bundesverfassungsgericht Bananenmarktordnung, BVerfGE 102, Bundesverfassungsgericht [1989] BVerjGE 2 BvR 502/86; 2 BvR 1000/86; 2 BvR 961/86 (10 July 1989) Gauweiler, BVerfG, Case No.2 BvR 2728/13 (14 January 2014) , 6, 7, 8, , 12, 18, 19, 20, 22, 23 Honeywell, BVerfG, Case No.2 BvR 2661/06 (6 July 2010) , 17 Internationale Handelsgesellschaft GmbH v Einfuhr-und Vorratsstelle fur Getreide und Futtermittel (No.2, BVL 52/71) [1974] 2 C.M.L.R. 540 Bundesverfassungsgericht Lisbon, BVerfG, Case No.2 BvE 2/08 (30 June 2009) , 17 Maastricht, BVerfG, Case No.2 BvR 2134/92 (12 October 1993) Solange I, BVerfGE 37, Solange II, BVerfGE 73, , 497, 505 Ireland BP v Minister for Justice, Equality and Law Reform [2003] 4 I.R. 200 HC New Zealand Re S, Refugee Appeal No.11/91, 5 September 1991 RSAA United Kingdom Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 K.B. 223; [1947] 2 All E.R. 680; (1947) 63 T.L.R. 623; (1948) 112 J.P. 55; 45 L.G.R. 635; [1948] L.J.R. 190; (1947) 177 L.T. 641; (1948) 92 S.J. 26 CA Case of Proclamations, 77 E.R. 1352; (1611) 12 Co. Rep. 74 KB De Keyser s Royal Hotel Ltd, Re; sub nom. De Keyser s Royal Hotel Ltd v King, The; Attorney General v De Keyser s Royal Hotel [1920] A.C. 508 HL , 463 MC Bacon Ltd (No.1), Re [1990] B.C.C. 78; [1990] B.C.L.C. 324 Ch D (Companies Ct) Moy Park Ltd v Tessenderlo Chemie NV [2008] [1202/5//12] C.A.T , 404 Nokia Corp v AU Optronics Corp [2012] EWHC 731 (Ch); [2012] U.K.C.L.R Nova Games v Mazooma [2007] EWCA Civ 219; [2007] Bus. L.R R. v Secretary of State for the Home Department Ex p. Fire Brigades Union [1995] 2 A.C. 513; [1995] 2 W.L.R. 464; [1995] 2 All E.R. 244; (1995) 7 Admin. L.R. 473; [1995] P.I.Q.R. P228; (1995) 145 N.L.J. 521; (1995) 139 S.J.L.B. 109 HL

215 xxxiv Table of Cases R. (on the application of Buckinghamshire CC) v Secretary of State for Transport; R. (on the application of HS2 Action Alliance Ltd) v Secretary of State for Transport; R. (on the application of Heathrow Hub Ltd) v Secretary of State for Transport; sub nom. HS2 Action Alliance Ltd v Secretary of State for Transport; R. (on the application of Hillingdon LBC v Secretary of State for Transport) [2014] UKSC 3; [2014] 1 W.L.R. 324; [2014] 2 All E.R. 109; [2014] P.T.S.R R. (on the application of Chester) v Secretary of State for Justice [2013] UKSC 63; [2014] A.C. 271; [2013] 3 W.L.R. 1076; [2014] 1 All E.R. 683; 2014 S.C. (U.K.S.C.) 25; 2014 S.L.T. 143; [2014] 1 C.M.L.R. 45; [2014] H.R.L.R. 3; 2013 G.W.D WH Newson Holding Ltd v IMI Plc [2013] EWCA Civ 1377; [2014] 1 All E.R. 1132; [2014] Bus. L.R. 156; [2014] E.C.C. 8; (2013) 163(7585) N.L.J United States of America American Ad Management Inc v General Telephone of California 190 F. 3d 1051 (9th Cir. 1999) , 409 Antoine Garabet MD Inc v Autonomous Techs Corp 116 F. Supp. 2d 1159 (C.D. Cal. 2000) Arizona Dairy Products Litigation, In re 627 F. Supp. 233 (D. Ariz. 1985) Associated General Contractors of California Inc (AGC) v California State Council of Carpenters 459 U.S. 519 (1983) , 408, 409 Beef Industry Antitrust Litigation, In re 600 F. 2d 1148 (5th Cir. 1979) Blue Shield of Virginia v McCready 457 U.S. 465 (1982) Bristol Bay, Alaska, Salmon Fishery Antitrust Litigation, In re 530 F. Supp. 36 (1981) Cantwell v Connecticut 310 U.S. 296 (1940) Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation, In re 691 F. 2d 1335 (1982) DeJonge v Oregon 299 U.S. 353 (1937) Duncan v Louisiana 391 U.S. 145 (1968) Gitlow v New York 268 U.S. 652 (1925) Illinois Brick Co v Illinois 431 U.S. 720 (1977) , 408, 409, 410 McDonald v Chicago 561 U.S. 742 (2010) Mid-West Paper Products Co v Continental Group Inc 596 F. 2d 573 (1979) Pollock v Citrus Associates of New York 512 F. Supp. 711 (S.D.N.Y. 1981) Richardson v Ramirez 418 U.S. 24 (1974) Uranium Antitrust Litigation, In re 552 F. Supp. 518 (N.D. Ill. 1982) Verizon Communications v Law Offices of Curtis v Trinko LLP 540 U.S. 398 (2004) Washington v American Pipe and Construction Co 280 F. Supp. 802 (W.D. Wash. 1968) , 411

216 Table of Legislation Treaties and Conventions Agreement on a Unified Patent Court [2013] OJ C175/ Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 [1972] OJ L299/ , 580, 582, 583, , 589 art Charter of Fundamental Rights of the European Union 2010 [2000] OJ C364/ , 109, 112, 119, , 171, 177, 187, 188, 197, 199, 387, 388, 394, 413, 420, 430, 437, , 491, 496, 497, 498, 499, 500, 501, 502, 503, 504, 506, 507, 508, , 512, 565 art art art , 387 art art art art art art art , 171, 172 art , 166, 171, 172 art arts art , 98, 101, 186, 392 (1) art , 189, 192, 195 art , 388 art art , 387, 388, 394 art art art , 188 (4) , 195, 196, 199 art , 599 art art , 142, 143, 499, 502 (1) , 499, 500, 501, , 508 (2) art.52(1) , 98 (2) (3) , 291 (5) (7) , 501, 507 art , 508 (6) Protocol Convention on Nuclear Safety Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention) , 585, 587 xxxv

217 xxxvi Table of Legislation Convention Relating to the Status of Refugees 1951 (Geneva Convention) , 110, 112, 118, art Protocol relating to the Status of Refugees Council of Europe Convention on Action against Trafficking in Human Beings , 113 Council of Europe Convention on Cybercrime , 110, 115, 116 Council of Europe Convention on Mutual Assistance in Criminal Matters Council of Europe Convention on the Laundering, Search, Seizure and Confiscation of the Proceeds of Crime , 110, 112 Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse , 110 EC Treaty 1957 (Treaty of Rome) , 47, 158, 416, , 522, 536, 537 Title IV Title XX art art art.64(2) , 348 art , 537 art.118(a) art art.175(1) Economic Partnership Agreement with the Cariforum countries , EEA Agreement , 472, 483 art Annex IX Energy Charter Treaty 1998 (ECT) , 537 EU Convention on Mutual assistance in criminal matters European Convention on Human Rights and Fundamental Freedoms 1950 (ECHR) , 417, 419, 420, , 492, 493, 494, 495, 496, 497, 498, 503, 504, 505, 508, 509, 511, , 600 art , 600, 601, 602, , 605, 606, 607 (1) , 604 art art , 494 art.59(2) First Protocol art European Social Charter First Optional Protocol on the Involvement of Children in Armed Conflict General Agreement on Trade in Services (GATS) , 109, 438, 439, , 518 art.vi (4) , 517, 518 (5) (b) art.xvi art.xvii ILO Convention Concerning Forced or Compulsory Labour , 110, 112 ILO Convention on Domestic Workers 2011 (C.189) art.10(3) art.13(1) Oviedo Convention on Human Rights and Biomedicine (CETS 164) Resht Treaty Rome Convention on the Law Applicable to Contractual Obligations 1980 [1980] OJ L266/ Schengen Convention Sewel Convention St Petersburg Treaty

218 Table of Legislation xxxvii Treaty establishing the European Atomic Energy Community 1957 (Euratom Treaty) , 537 art art Treaty establishing the European Coal and Steel Community 1951 (ECSC Treaty) , 536, 537 Treaty of Amsterdam , 369, 579 Treaty of Lisbon , 20, 106, 116, , 171, 172, 176, 177, 186, 187, 188, 194, 195, 199, 412, 413, 416, , 420, 423, 433, 448, 449, 487, 490, 537, 565, 579 Protocol Protocol art Treaty on European Union 1992 (Treaty of Maastricht, EU Treaty, TEU) , 179, 186, 197, , 373, 417, 466, 610, 611 art , 511, 565 art.3(3) , 188, 189, 192, 195 (5) art (1) (2) , 172, 173, 188, , 195, 413 (3) , 488, 489 art , 420 (3) (4) art (1) , 177, 501, 564 (2) , 419, 497, 564 (3) art arts art , 192 (2) (3) , 194, 196, 197, 199 art , 192, 193, 194, 199 (1) , 193 (2) (3) , 190, 194, 195, 199 (4) art art , 488 (2) art Title IV art.21(a) arts art art art.48(2) (5) art art , 460, 461, 462, , 465, 466, 471, 472, 477, 482, 484, 487, 489 (1) , 462, 463, 464, 489 (2) (3) , 471 Protocol Protocol , 433

219 xxxviii Table of Legislation Protocol Treaty on Peace and Friendship Treaty on the Functioning of the European Union (TFEU) , 235, 238, 368, , 373, 417, 426, 466, 539, 562 art.2(1) (6) art art.4(2)(j) , 420 art art , 172 art , 612, 613 art art art art , 156, 157, 167, , 195 art , 195 (2)(d) , 188, 195, 199 art , 117, 149, 157 art arts art , 375 (4) art , 49 (1) (2) art , 152, 169, 173 art , 148, 149, 151, , 239 art , 165, 239, 381, 382 (1) (3) , 153, 469 art , 168 art , 151, 239 (1) art , 164, 165, 167, art , 151 art (1)(b) Pt 3 Title V art (1) (2) art art , 413, 420 art , 420 art art.77(1)(c) (2)(a) art , 361 (1) (2) (c) (e) , 358 (3) , 345, 347, 348, 349

220 Table of Legislation xxxix 350, 351, 352, 353, 358 art , 350 (1) (3) art , 347, 349 art (2) arts art.83(2) art.87(3) art art , 205, 208, 209, , 402, 404, 520 (1) , 206, 209 (3) art , 204, 205, 206, , 212, 213, 217, 219, 243, 245, 248, 251, 401, 402, 520, 549 (b) , 248, 249, 251 art art art , 49, 52, 537 (4) (9) art art , 21 (2) , 10, 11 art art , 6, 7, 12, 13 14, 21, 22 (1) art art , 12, 22 art , 21 (1) , 11, 19 (1) (2) (1) (5) (2) , 126 (6) art.129(3) art.132(1) art art.153(4) art , 386 (1) , 394 art art.167(4) art , 102, 156, 174 (4) (a) art.169(4) art.192(2)(c) art art , 538, 539, 540 (1)(b) (2) art.207(4) Pt 5 Title III

221 xl Table of Legislation art.216(1) , 540 (2) , 475 art (3) , 477 art.238(3)(a) art , 254, 255, 259, , 266, 547 art , 254, 259, 264, (2) , 272 (3) , 267, 268, 272 art , 548 (4) art , 7, 15, 16, , 599, 600, 603 (3) art.288(3) arts art , 358 art art art Protocol Protocol , 433 Protocol Protocol Protocol United Nations Convention on the Elimination of all Forms of Discrimination against Women , 110, 118 United Nations Convention on the Rights of Persons with Disabilities , 110 United Nations Convention on the Rights of the Child , 110, 112, 117, 118 Optional Protocol Second Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography , 110 Third Optional Protocol on a Communications Procedure , 110 United Nations Convention on Transnational Organised Crime , 110, 112, 118 United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons 2000 (Palermo Protocol) , 110, 112, 113 United Nations Standard Minimum Rules for the Treatment of Prisoners Universal Declaration of Human Rights Vienna Convention on the Law of Treaties , 463 art art art art Vienna Convention on Road Traffic , 110, 111, 114 WHO Convention WTO Agreement on Technical Barriers to Trade art Regulations 1958 Reg.1/58 determining the languages to be used by the European Economic Community [1958] OJ , 186 art art

222 Table of Legislation xli art art art art Reg.1408/1971 on the application of social security schemes to employed persons and their families moving within the Community [1971] OJ L149/ , 430 art , 427, 430 (1)(c) (2) Reg.1346/2000 on insolvency proceedings [2000] OJ L160/ , 579 Reg.44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L12/1 (Brussels I Regulation) , 579, 580, 581, , 584, 585, 586, 587, 588, 589 art Reg.1049/2001 on public access to European Parliament, Council and Commission documents [2001] OJ L145/ Reg.1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters [2001] OJ L174/ Reg.178/2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety [2002] OJ L31/1 (General Food Law) art Reg.1606/2002 on the application of international accounting standards [2002] OJ L243/1 (International Accounting Standards Regulation) Reg.1/2003 on the implementation of the rules on competition laid down in arts 81 and 82 of the Treaty [2003] OJ L1/ , 246, 248, 250 art.9(1) Reg.139/2004 on the control of concentrations between undertakings [2004] OJ L24/1 (Merger Regulation) , 203, 209 Reg.726/2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency [2004] OJ L136/ art art Reg.805/2004 creating a European Enforcement Order for uncontested claims [2004] OJ L143/ Reg.883/2004 on the coordination of social security systems [2004] OJ L166/ , 426, 608, 609 art Reg.1896/2006 creating a European payment procedure [2006] OJ L399/ Reg.861/2007 establishing a European Small Claims Procedure [2007] OJ L199/ Reg.864/2007 on the law applicable to non-contractual obligations [2007] OJ L199/40 (Rome II) Reg.1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters and repealing Reg.1348/2000 [2007] OJ L324/ Reg.1394/2007 on advanced therapy medicinal products [2007] OJ L324/ , 26

223 xlii Table of Legislation Recital Recital , 34 Recital Recitals Recital , 38 Recital Recital , 30, 32 art art.8(1) art art art art art art Reg.593/2008 on the law applicable to contractual obligations [2008] OJ L177/6 (Rome I) Reg.987/2009 laying down the procedure for implementing Reg.883/2004 on the coordination of social security systems [2009] OJ L284/ , 609 Reg.330/2010 on the application of art.101(3) TFEU to categories of vertical agreements and concerted practices [2010] OJ L102/1 art Reg.583/2010 implementing Dir.2009/65 on key investor information and conditions to be met when providing key investor information or the prospectus in a durable medium other than paper or by means of a website [2010] OJ L176/ Reg.584/2010 implementing Dir.2009/65 on the form and content of the standard notification letter and UCITS attestation, the use of electronic communication between competent authorities for the purpose of notification, and procedures for on-the-spot verifications and investigations and the exchange of information between competent authorities [2010] OJ L176/ Reg.994/2010 concerning measures to safeguard security of gas supply and repealing Dir.2004/67 [2010] OJ L295/ , 542, 545 Reg.1092/2010 on EU macro-prudential oversight of the financial system and establishing a European Systemic Risk Board [2010] OJ L331/ Reg.1096/2010 conferring specific tasks upon the European Central Bank concerning the functioning of the European Systemic Risk Board [2010] OJ L331/ Reg.211/2011 on the citizens initiative [2011] OJ L65/ , 375 art.4(1) Reg.1169/2011 on the provision of food information to consumers [2011] OJ L304/18 (Food Information Regulation FIR) art Reg.236/2012 on short selling and certain aspects of credit default swaps [2012] OJ L86/1 (Short Selling Regulation) Reg.648/2012 on OTC derivatives, central counterparties and trade repositories [2012] OJ L201/1 (European Market Infrastructure Regulation (EMIR)) , 327 art

224 Table of Legislation xliii Reg.1024/2012 on administrative cooperation through the Internal Market Information System [2012] OJ L316/1 (IMI Regulation) Reg.1025/2012 on European standardisation [2012] OJ L316/12 (Standardisation Regulation) , 523, 528, 529, Recital Recital Recital art art art art art Annex III Reg.1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2012] OJ L351/ 1 (Brussels I (recast) Regulation) , 582, 583, 584, , 588, 589 Recital , 586, 587, 588 art art.31(2) (4) art.73(2) Reg.345/2013 on European venture capital funds [2013] OJ L115/ Reg.346/2013 on European social entrepreneurship funds [2013] OJ L115/ Reg.524/2013 on online dispute resolution for consumer disputes [2013] OJ L165/ Reg.575/2013 on prudential requirements for credit institutions and investment firms and amending Reg.648/2012 [2013] OJ L176/1 (CRR) , 314 Reg.603/2013 on the establishment of Eurodac for the comparison of fingerprints for the effective application of Reg.604/2013 and on requests for the comparison with Eurodac data by Member States law enforcement authorities and Europol for law enforcement purposes, and amending Reg.1077/2011 (recast) [2013] OJ L180/1 (Eurodac Regulation) , 353 Reg.604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person [2013] OJ L180/31 (Dublin/Dublin III Regulation) , 345, 349, 350, , 355, 357, 358, 359, 360 art.3(2) arts arts art.13(1) art art Reg.1024/2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions [2013] OJ L287/ Reg.600/2014 on markets in financial instruments and amending Reg.648/2012 [2014] OJ L173/84 (Markets in Financial Instruments Regulation) art

225 xliv Table of Legislation Reg.651/2014 declaring certain categories of aid compatible with the internal market in application of arts 107 and 108 of the Treaty [2014] OJ L187/1 art art Reg.655/2014 creating a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters [2014] OJ L189/ Reg.806/2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Reg.1093/2010 [2014] OJ L225/ , 23 Reg.2015/760 on European long-term investment funds [2015] OJ L123/ Reg.2015/848 on insolvency proceedings (recast) [2015] OJ L141/19 Recital art.2(5) art.3(1) art.4(2)(m) art Directives Dir.76/308 [1977] OJ L306/34 (Mutual Assistance Directive for the recovery of taxes) Dir.77/91 on co-ordination of safeguards in the formation of public limited liability companies and the maintenance and alteration of their capital [1977] OJ L26/ , 238 art Dir.77/799 [1977] OJ L336/15 20 (Mutual Assistance Directive for the exchange of information) Dir.78/660 on the annual accounts of certain types of companies [1978] OJ L222/11 art.47(1) Dir.80/778 on the quality of water intended for human consumption [1980] OJ L229/11 art.4(2) Dir.80/987 on the protection of employees in the event of the insolvency of their employer [1980] OJ L283/ art , 229 Dir.85/337 on the assessment of the effects of certain public and private projects on the environment [1985] OJ L175/40 (Environmental Impact Assessment Directive) , 263, 266 Dir.85/374 on liability for defective products [1985] OJ L210/29 art Dir.89/48 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years duration [1989] OJ L19/ Dir.89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work [1989] OJ L183/1 (Health and Safety Directive) , 383, 384, 385, 386

226 Table of Legislation xlv 389, 393 art art (a) art (3) , Dir.90/314 on package travel, package holidays and package tours [1990] OJ L158/ , 231, 237 art.2(4) art Dir.90/385 on active implantable medical devices [1990] OJ L189/ , 33 Dir.90/434 [1990] OJ L225/1 (Merger Directive) Dir.90/435 [1990] OJ L225/6 (Parent-Subsidiary Directive) Dir.91/250 on the legal protection of computer programs [1991] OJ L122/ Dir.91/271 concerning urban waste water treatment [1991] OJ L135/ , 272 Dir.91/533 on an employer s obligation to inform employees of the conditions applicable to the contract or employment relationship [1991] OJ L288/32 (Obligation to Inform Directive) , 389, 390, 393, art.1(1) (2) (a) (b) art (1) , 396 (2) art Dir.92/43 on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/7 (Habitats Directive) art Dir.92/51 on a second general system for the recognition of professional education and training to supplement Dir.89/48 [1992] OJ L209/ Dir.92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding [1992] OJ L348/1 (Pregnant Workers Directive) , 382, 383, 384, , 388, 389, 393, 395 art.1(2) art art art art , 396 Dir.93/13 on unfair terms in consumer contracts [1993] OJ L95/29 art Dir.93/42 on medical devices [1993] OJ L169/ , 33 Dir.1994/62 on packaging and packaging waste [1994] OJ L365/10 (Packaging Waste Directive)

227 xlvi Table of Legislation Dir.96/71 concerning the posting of workers in the framework of the provision of services [1997] OJ L18/1 (Posted Workers Directive) , 164, 166 Recital art.2(1) , 164 art.3(1) , 164 Dir.97/67 on common rules for the development of the internal market of Community postal services and the improvement of quality of service [1998] OJ L15/ Dir.97/81 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and ETUC [1997] OJ L14 (Part-Time Work Directive) , 381, 389, 390, Preamble cl cl.2(1) (2) cl (1) Dir.98/5 on lawyers qualifications [1998] OJ L77/ Dir.98/34 laying down a procedure for the provision of information in the field of technical standards and regulations [1998] OJ L204/ , 522, 529 Dir.98/43 relating to the advertising and sponsorship of tobacco products [1998] OJ L213/ Dir.98/44 on the legal protection of biotechnological inventions [1998] OJ L213/13 arts , 43 Dir.98/48 amending Dir.98/34 laying down a procedure for the provision of information in the field of technical standards and regulations [1998] OJ L 217/ Dir.98/59 on collective redundancies [1998] OJ L225/ art.1(a) , 237 Dir.1999/44 on certain aspects of the sale of consumer goods and associated guarantees [1999] OJ L171/ art.1(3) art.7(1) art.8(2) Dir.1999/70 concerning the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP [1999] OJ L175/43 (Fixed-Term Work Directive) , 381, 389, 390, cl Dir.2000/13 on labelling, presentation and advertising of foodstuffs [2000] OJ L109/29 (Labelling Directive) , 592 art.1(3)(a) art.2(1)(a)(i) Dir.2000/35 on combating late payment in commercial transactions [2000] OJ L200/ art.6(2) Dir.2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22 (Race Equality Directive) , 382 art

228 Table of Legislation xlvii Dir.2000/53 on end-of life vehicles [2000] OJ L269/ Dir.2000/60 establishing a framework for Community action in the field of water policy [2000] OJ L327/ , 272 Dir.2000/78 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/ art.2(2)(a) (b) art.7(2) Dir.2001/18 on the deliberate release into the environment of genetically modified organisms [2001] OJ L106/1 art.26(b)(3) Dir.2001/20 on the implementation of good clinical practice in the conduct of clinical trials on medicinal products for human use [2001] OJ L121/ , 42 Dir.2001/24 on the reorganisation and winding up of credit institutions [2001] OJ L art (2)(l) art.30(1) Dir.2001/37 on the manufacture, presentation and sale of tobacco products [2001] OJ L194/26 (Tobacco Directive) art.5(5) art.13(1) Dir.2001/42 on the assessment of the effects of certain plans and programmes on the environment [2001] OJ L197/30 (Directive on Strategic Environmental Assessment) Dir.2001/55 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof [2001] OJ L212/12 (Temporary Protection Directive) , 350, 351, 352, 360 art.2(d) art (3) art Dir.2001/77 on the promotion of electricity produced from renewable energy sources in the internal electricity market [2001] OJ L283/ , 547 Dir.2001/80 on the limitation of emissions of certain pollutants into the air from large combustion plants [2001] OJ L309/ Dir.2001/83 on the Community code relating to medicinal products for human use [2001] OJ L311/ , 34 Annex I art.3(7) Dir.2002/8 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes [2003] OJ L26/ , 579 Dir.2002/98 setting the standards of quality and safety for the collection, testing, processing, storage and distribution of human blood and blood components [2003] OJ L33/30 (Blood Directive) , 102 art art art Dir.2003/6 on insider dealing and market manipulation [2003] OJ L96/16 (Market Abuse Directive) art

229 xlviii Table of Legislation Dir.2003/30 on the promotion of the use of biofuels or other renewable fuels for transport [2003] OJ L123/ , 547 Dir.2003/48 [2003] OJ L157/38 (Savings Directive) Dir.2003/49 [2003] OJ L157/49 (Interest-Royalties Directive) Dir.2003/71 on the prospectus to be published when securities are offered to the public or admitted to trading [2003] OJ L345/64 (Prospectus Directive) , 319, 320, 321, 330 Dir.2003/86 on the right to family reunification [2003] OJ L251/12 (Family Reunification Directive) Dir.2003/88 concerning certain aspects of the organisation of working time [2003] OJ L299/9 (Working Time Directive) , 383, 384, 385, , 388, 389, 393, 397, 398 Recital art.2(1) (2) art art art art art art art art Dir.2003/94 laying down the principles and guidelines of good manufacturing practice in respect of medicinal products for human use and investigational medicinal products for human use [2003] OJ L262/ Dir.2003/109 concerning the status of third-country nationals who are long-term residents [2004] OJ L16/44 (Long-Term Residents Directive) Dir.2004/18 on the co-ordination of procedures for the award of public works contracts, public supply contracts and public service contracts [2004] OJ L134/ , 168 art art.53(1) Dir.2004/23 on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells [2004] OJ L102/48 (Tissues and Cells Directive)... 31, 33, 34, 41, 42 art art Dir.2004/33 implementing Dir.2002/98 as regards certain technical requirements for blood and blood components [2004] OJ L91/ , 93, 94, 98, 99 Annex III point Dir.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 amending Reg.1612/68 [2004] OJ L158/ , 558, 559, 560, , 563, 566, 570, 571, 577, 609 Recital Recital Recital art art.7(1)(b) (c)

230 Table of Legislation xlix art (1) (3) (4) art.24(2) art.28(3)(a) Dir.2004/67 concerning measures to safeguard security of natural gas supply [2004] OJ L127/ , 542 Dir.2004/83 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [2004] OJ L304/ Dir.2004/109 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market [2004] OJ L390/38 (Transparency Directive) Dir.2004/113 implementing the principle of equal treatment between men and women in the access to and supply of goods and services [2004] OJ L373/37 (Gender Equality Directive) Dir.2004/726 art art Dir.2005/28 laying down principles and detailed guidelines for good clinical practice as regards investigational medicinal products for human use, as well as the requirements for authorisation of the manufacturing or importation of such products [2005] OJ L91/ Dir.2005/29 concerning unfair business-to-consumer commercial practices in the internal market [2005] OJ L149/22 (Unfair Commercial Practices Directive) , 593 art.5(3) art Dir.2005/36 on the recognition of professional qualifications [2005] OJ L255/22 (Professional Qualifications Directive) , 526 art.4(1) Dir.2006/21 on the management of waste from extractive industries [2006] OJ L102/ Dir.2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ L204/ art.2(1)(a) (b) art art art Dir.2006/123 on services in the internal market [2006] OJ L376/36 (Services Directive) , 238, 439, 440, , 524, 526, 527, 529, 534 Recital art.3(1)(a) art.8(3) art art art.21(4) art art.26(5) , 527, 529, 530

231 l Table of Legislation art Dir.2007/64 on payment services in the internal market [2007] OJ L319/ art (1) (5) (6) Dir.2008/52 on certain aspects of mediation in civil and commercial matters [2008] OJ L136/ Dir.2008/94 on the protection of employees in the event of the insolvency of their employer [2008] OJ L283/36 (Employer s Insolvency Directive) , 380, 381, 389, Recital art (1) (3) art.2(2) art , 229 (2) (3) Dir.2008/98 on waste [2008] OJ L312/3 (Waste Framework Directive) , 266, 272 Dir.2008/104 on temporary agency work [2008] OJ L327/ , 381, 389, 390, art.1(1) (3) art.3(1)(a) (c) Dir.2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L348/98 (Returns Directive) , 369, 371 Dir.2008/122 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts [2008] OJ L33/10 art Dir.2009/28 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Dir.2001/77 and Dir.2003/30 [2009] OJ L140/16 (Renewable Energy Directive) , 547, 548 art (4) art.5(2) Annex I Pt B Dir.2009/50 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment [2009] OJ L155/17 (Blue Card Directive) , 373 Dir.2009/52 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals [2009] OJ L168/24 (Employers Sanctions Directive) Dir.2009/65 on undertakings for collective investment in transferable securities [2009] OJ L302/ Dir.2009/147 on the conservation of wild birds [2009] OJ L 20/7 (Birds Directive)

232 Table of Legislation li Dir.2010/18 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Dir.96/34 [2010] OJ L68/13 (Parental Leave Directive) , 389, 390, 391, 393 cl.1(2) Dir.2010/31 on the energy performance of buildings [2010] OJ L153/ Dir.2010/64 on the right to interpretation and translation in criminal proceedings [2010] OJ L280/ , 417 Dir.2011/24 on the application of patients rights in cross-border healthcare [2011] OJ L88/ , 426, 427, 430 arts arts arts arts Dir.2011/36 on preventing and combating trafficking in human beings and protecting its victims [2011] OJ L101/ , 117, 416 Recital Recital Dir.2011/61 on Alternative Investment Fund Managers [2011] OJ L174/ Dir.2011/82 facilitating the cross-border exchange of information on road safety related traffic offences [2011] OJ L288/ Recital Recital Recital Dir.2011/83 on consumer rights [2001] OJ L304/ Dir.2011/92 on combating sexual abuse and sexual exploitation of children and child pornography [2011] OJ L335/ Recital Dir.2011/95 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted [2011] OJ L337/9 (Qualification Directive) , 340, 344, 369, 370 art Dir.2011/98 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State [2011] OJ L343/ , 369 Dir.2011/99 on the European protection order [2011] OJ L338/ Dir.2012/13 on the right to information in criminal proceedings [2012] OJ L142/ Dir.2012/19 on waste electrical and electronic equipment [2012] OJ L197/ Dir.2012/27 on energy efficiency, amending Dir.2009/125 and Dir.2010/30 and repealing Dir.2004/8 and Dir.2006/32 [2012] OJ L315/1 (Energy Efficiency Directive) , 548 Dir.2012/29 establishing minimum standards on the rights, support and protection of victims of crime [2012] OJ L315/ , 418 Dir.2012/30 on co-ordination of safeguards in the formation of public limited liability companies and the maintenance and alteration of their capital [2012] OJ L315/

233 lii Table of Legislation Dir.2013/11 on alternative dispute resolution for consumer disputes and amending Reg.2006/2004 and Dir.2009/22 [2013] OJ L165/ Dir.2013/32 on common procedures for granting and withdrawing international protection [2013] OJ L180/60 (Procedures Directive) , 117, 340 Dir.2013/33 laying down standards for the reception of applicants for international protection [2013] OJ L180/96 (Reception Directive) , 117, 340, 350, , 354, 360 Recital art art art art Dir.2013/36 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms (Capital Requirements Directive IV) Dir.2013/40 on attacks against information systems [2013] OJ L218/8 Recital Dir.2013/50 amending Dir.2004/109, Dir.2003/71 and Dir.2007/14 OJ [2013] L294/ Dir.2013/55 amending Dir.2005/36 on the recognition of professional qualifications and Reg.1024/2012 on administrative cooperation through the Internal Market Information System (the IMI Regulation) [2013] OJ L354/ Dir.2014/18 [2014] OJ L40/20 art Dir.2014/24 on public procurement [2014] OJ L94/ , 485 art.67(2) art Dir.2014/25 on procurement by entities operating in the water, energy, transport and social services sectors [2014] OJ L94/243 art art.82(2) Dir.2014/28 on the making available on the market and supervision of explosives for civil uses [2014] OJ L96/ Dir.2014/36 on the conditions of entry and residence of third-country nationals for the purposes of seasonal employment [2014] OJ L94/ , 369 Dir.2014/41 regarding the European Investigation Order in criminal matters [2014] OJ L130/ , 416 Dir.2014/59 establishing a framework for the recovery and resolution of credit institutions and investment firms [2014] OJ L173/190 (Bank Recovery and Resolution Directive) art art.63(1) Dir.2014/65 on markets in financial instruments [2014] OJ L173/349 (Markets in Financial Instruments Directive II) art Dir.2014/66 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer [2014] OJ L157/

234 Table of Legislation liii Dir.2014/67 on the enforcement of Dir.96/71 concerning the posting of workers in the framework of the provision of services [2014] OJ L159/ Recital Dir.2014/104 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union [2014] OJ L349/1 (Damages Directive) , 403, 410, 579 Recital art art art.17(2) , 403 Dir.2015/412 amending Dir.2001/18 on the cultivation of genetically modified organisms [2015] OJ L68/ Recital Recital Decisions Commission Decision of 8 May 2001 relating to a proceeding pursuant to art.81 of the EC Treaty (IV/36957/F3 Glaxo Wellcome; IV/36997/F3 Aseprofar and Fedifar; IV/37121/F3 Spain Pharma; IV/37138/F3 BAI; IV/37380/F3 EAEPC) [2001] OJ L302/ Framework Decision 2001/220 on the standing of victims in criminal proceedings [2001] OJ L82/ Framework Decision 2002/584/JHA on the European Arrest Warrant [2002] OJ L190/ art.4(a) Framework Decision 2002/629/JHA on combating trafficking in human beings [2002] OJ L203/ Commission Decision NDC Health/IMS Health Interim measures [2003] OJ L268/ Framework Decision 2003/577/JHA on the execution in the EU of orders freezing property or evidence (as regards freezing of evidence) [2003] OJ L196/ Commission Decision of 24 March 2004 relating to a proceeding pursuant to art.82 of the EC Treaty and art.54 of the EEA Agreement against Microsoft Corporation (Case COMP/C-3/ Microsoft) [2007] OJ L32/ Framework Decision 2005/22/JHA on attacks against information systems [2005] OJ L69/ Commission Decision of 21 February 2007 in Case COMP/E-1/ Elevators and Escalators [2007] OJ C Framework Decision 2008/919/JHA amending the 2002 Framework Decision on combating terrorism [2008] OJ L330/ Framework Decision 2008/978/JHA on the European evidence warrant [2008] OJ L350/ Commission Decision of 13 May 2009 relating to a proceeding under art.82 of the EC Treaty and art.54 of the EEA Agreement (COMP/C-3/37990 Intel) [2009] OJ C227/ Commission Decision of 14 October 2009 in Case COMP/ Ship classification [2010] OJ C2/

235 liv Table of Legislation Framework Decision 2009/299/JHA amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial [2009] OJ L81/ , 510 Dec.2010/281 of the European Central Bank establishing a securities markets programme [2010] OJ L124/ Preamble Recital Recital art Commission Decision of 26 January 2011 (COMP/M.5984 Intel/McAfee) [2011] OJ C98/ , 212, 214, 215 Commission Decision of 23 November 2011 declaring a concentration to be compatible with the internal market and the EEA agreement (COMP/M.6203 Western Digital Ireland/Viviti Technologies) Commission Decision of 26 July 2012 declaring a concentration to be compatible with the internal market and the EEA (Case COMP/M.6410 UTC/Goodrich) Council Decision 994/2012 of 25 October 2012 establishing an information exchange mechanism with regard to intergovernmental agreements between Member States and third countries in the field of energy [2012] OJ L299/13 (Intergovernmental Agreements Decision) , 546, 550, 551 art art art Commission Decision of 19 June 2013 relating to a proceeding under art.101 TFEU and art.53 EEA Agreement (COMP/AT Lundbeck) [2015] OJ C80/ Commission Decision of 27 May 2014 (COMP/AT Glaxo Wellcome) Commission Decision of 28 January 2015 pursuant to art.6(1)(b) in conjunction with art.6(2) of Reg.139/2004 (Case COMP/M.7275 Novartis/GlaxoSmithKline Oncology Business) Council Decision 2015/1523 of 14 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece [2015] OJ L239/146 (Relocation Decision) , 345, 346, 347, , 350, 351, 353, 354, 356, 357 Preamble , 351 Recital Recital Recital art.2(e) art.3(2) art art (10) art Council Decision 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece [2015] OJ L248/80 (Relocation Decision) , 340, 345, 346, , 349, 350, 351, 353, 354, 356, 357 Preamble , 351 Recital Recital Recital art.2(e) art.3(2)

236 Table of Legislation lv art art (10) art Council Decision of 18 and 19 February 2016 Concerning a New Settlement for the United Kingdom with the European Union (EUCO 1/16) (Decision on a New Settlement) , 312, 313, 331, Section A para para , 313 para , 313 National Legislation Austria Canada Cyprus Artikel II no.7, 59th BundesverfassungsG, Austrian BGBl. 1964/ Criminal Code Charter of Rights and Freedoms s Law 100(I)/2000 art.3(2) Czech Republic France Act No.97/1963 Coll. on International Private and Procedural Law s.10(4) s Act No.513/1991 Coll., Commercial Code s.196(a)(3) Act No.159/1999 Coll. on Certain Conditions of Business Activities in the Field of Tourism s Act No.89/2012 Coll., Civil Code s Act No.90/2012 Coll. on Business Corporations s Civil code Ordonnance No of 7 November 1958 portant loi organique sur le Conseil constitutionnel art.23-2(al.2) art.23-5(al.2) Arrété du 12 janvier fixant les critères de selection des donneurs de sang , 93

237 lvi Table of Legislation Germany Italy Act against Restriction of Competition (Gesetz gegen Wettbewerbsbeschrankungen) s Basic Law (Grundgesetz) art.20(1) (3) art art.38(1) art.59(2) Insolvency Code (Insolvenzordnung) s Bankruptcy Law (Legge Fallimentare) art United Kingdom European Communities Act (c.68) , 463, 467 s , 485 (1) (2) Insolvency Act (c.45) Pt III s.240(1)(b) Employment Rights Act (c.18) Pt I National Minimum Wage Act (c.39) Human Rights Act (c.42) , 493 s Scotland Act (c.46) , 482 s.28(7) (8) Working Time Regulations (SI 1998/1833) Representation of the People Act (c.2) Immigration (European Economic Area) Regulations (SI 2006/1003) reg European Union (Amendment) Act (c.7) s Constitutional Reform and Governance Act (c.25) , 467 s (7) (8) s.23(1)(b) (c)

238 Table of Legislation lvii s.25(1) European Union Act (c.12) , 466 Pt I Scotland Act (c.11) United States of America Clayton Antitrust Act s , 407 Dodd-Frank Act Title VII Title VIII JOBS Act

239 Cumulative Index This index has been prepared using Sweet & Maxwell s Legal Taxonomy. Abuse of dominant position exclusionary abuse, Allocation of jurisdiction arbitration awards enforcement, Anti-suit injunctions arbitration awards enforcement, Arbitration awards anti-suit injunctions enforcement, Area of freedom security and justice external norms global legal order, Blood donations sexual orientation discrimination lifetime bans on sexually active gay men, Central counterparties European Central Bank location policy, Citizenship foreign criminals prisoners' rights, Civil Service UK withdrawal from EU practicalities of leaving, Clearing systems central counterparties European Central Bank s location policy, Commitments abuse of dominant position exclusionary abuse, Common foreign and security policy UK withdrawal from EU key areas for settlement, Comparative law private enforcement umbrella pricing, Competence central counterparties European Central Bank s location policy, Competition law restrictions on innovation, Compliance environmental policy compliance strategies, Constitutional law area of freedom security and justice challenges facing development of, Consumer protection misleading advertising labeling foodstuffs, Corporation tax internal market economic effect of EU tax jurisprudence, Cybercrime area of freedom security and justice challenges facing development of, Deportation foreign criminals prisoners' rights, Directives external norms area of freedom security and justice, methods of transposition, Discrimination internal market economic effect of EU tax jurisprudence, 44 71