European Law Review ISSN: April EL Rev Editorial A court within a court: Is it time to rebuild the Court of Justice?

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European Law Review ISSN: 0307 5400 EL Rev 2009 2 Editorial A court within a court: Is it time to rebuild the Court of Justice?

1 European Law Review ISSN: EL Rev Editorial A court within a court: Is it time to rebuild the Court of Justice? Articles Are trends in European company law threatening industrial democracy? Daniel Komo and Charlotte Villiers The right to life and abolition of the death penalty in the Council of Europe Jon Yorke Margins of appreciation: National values, fundamental rights and EC free movement law Niamh Nic Shuibhne The European Union facing the global arena: standard-setting bodies and financial regulation Giulia Bertezzolo Analysis and Reflections The PPU: Is it worth the candle? An early assessment Catherine Barnard Capturing the cartel s friends: Cartel facilitation and the idea of joint criminal enterprise Christopher Harding Accelerated justice or a step too far? Residence rights of non-eu family members and the Court s ruling in Metock Samantha Currie Book Reviews EL Rev Alerter Page 1 of 5

2 Editorial A court within a court: Is it time to rebuild the Court of Justice? Constitution of courts; EC law; European Court of Justice; Judges; Member States On February 10, 2009, the Grand Chamber delivered judgment in Commission v Italy. 1 This case assessed whether rules regulating the types of vehicle that could lawfully be used to tow trailers breached Art.28 EC. The substance of the judgment will provoke much substantive comment in the coming months. Article 28 EC s single sentence has struck again. The case, along with Commission v Portugal 2 and Mickelsson and Roos, 3 addresses a new variant on the established categories of product characteristics and selling arrangements i.e. rules regulating the use of goods in terms of measures having an equivalent effect to quantitative restrictions on the free movement of goods. In Commission v Italy, the Court advanced global tests of non-discrimination and mutual recognition that draw directly from Dassonville and Cassis de Dijon, 4 and skirted quietly over the binary nature of the categorisation question created by Keck. 5 Advocate General Bot admitted that the tests laid down by the Court in Keck and Mithouard have not clarified the scope of Article 28 EC or facilitated [its] implementation ([84] of his Opinion) but suggested that [n]evertheless I do not think that at the present time it is appropriate to depart from that case-law ([85]). Implicitly accepting this somewhat unhelpful dictum, the Court found that measures adopted by a Member State the object or effect of which is to treat products coming from other Member States less favourably are to be regarded as measures having equivalent effect to quantitative restrictions on imports within the meaning of Article 28 EC. 6 The judgment in Keck thus resembles the difficult relation that everyone agrees must be invited to the feast; but that everyone then works hard to avoid on the day itself. Additionally, given that the problematic breadth of Dassonville is reaffirmed so strongly, can more substantive discussion on some form of de minimis test be avoided much longer? Consider also, however, some practical aspects of the three use of goods cases. They were assigned to four different Advocates General overall. In December 2007, A.G. Trstenjak delivered the opinion in Commission v Portugal; the action was lodged in April 2006, and the judgment of the Third Chamber was delivered in April This time-span is fairly typical for Court of Justice actions; but neither the Opinion nor judgment really evidences an appreciation of the novelty or significance of the underlying question. This came later through the action against Italy, which was lodged in March 2005 thus requiring almost four years for judgment to be delivered, more than two years after the original Opinion of A.G. Léger. A second Opinion (from A.G. Bot) in July 2008 addressed the use of goods dimension more specifically following the transfer of the case from the Third to the Grand Chamber. Since A.G. Kokott s 2006 Opinion in Mickelsson and Roos, which argues for a more directly analogous engagement with Keck, we have silence still from the Court, although a contemporaneous judgment with Commission v Italy was surely anticipated. The European Court of Justice is manifestly no longer tucked away in the fairyland Duchy of Luxembourg. 7 The new Palais, inaugurated on December 4, 2008, is a complex collection of buildings that, quite literally, consume the original Palais within a ring-like structure, alongside the original Court of First Instance and, most prominently, two high-rise towers (making 1 Commission v Italy (C-110/05), not yet reported, February 10, Commission v Portugal (C-265/06) [2008] 2 C.M.L.R Åklagaren v Mickelsson and Roos (C-142/05), pending; Opinion of A.G. Kokott delivered on December 14, Procureur du Roi v Dassonville (8/74) [1974] E.C.R. 837; [1974] 2 C.M.L.R. 436 ECJ; Rewe-Zentrale AG v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) (120/78) [1979] E.C.R. 649; [1979] 3 C.M.L.R. 494 ECJ. 5 Criminal proceedings against Keck and Mithouard (C-267/91) [1993] E.C.R. I-6097; [1995] 1 C.M.L.R Commission v Italy at [37]; ultimately, the Court found that the Italian measures were justified for reasons of road safety. 7 E. Stein, Lawyers, Judges, and the Making of a Transnational Constitution (1981) 75:1 American Journal of International Law 1-27, 1. EL Rev Alerter Page 2 of 5

3 unfortunate allusions to Tolkien difficult to suppress). The overall visual impact is one of enormous scale; but also, seeing the mismatched structures that differ from one another in almost every way size, materials, scale dysfunction. Within the Court of Justice, another striking image comes from the cavernous room in which the full court holds its réunion générale. In particular, to accommodate 27 judges, eight Advocates General and the Registrar, the long table in that room is, quite simply, vast. What that picture suggests is that the possibility for organic, unstructured discussion is impossible to reconcile with the present size of this judicial college. Debate on whether or not the European Union needs a supreme court turns inevitably and often divisively to ideological and normative discussions. What would an EU supreme court say about the European Union? What would it say about the Member States? And so on. But the strongest argument for revision of the judicial architecture is functionality. The Full Court is now, realistically, a concept of the past. While the Presidents of Chambers form the core of the Grand Chamber, the additional members will vary on a case by case basis. They must, if rotation across all other judges is to be respected. But can such a system preserve jurisprudential coherence? Courts are not meant to be political institutions and there is thus no inherent requirement for them to be representative institutions. The amendment to Art.221 EC via Nice for the first time, expressly confirming that each Member State sends one judge codified an overt politicisation of the Court of Justice, to the detriment of ensuring the essential collegiate characteristic of higher courts. Whether or not the Court of Justice is called a supreme or constitutional court, it is the court with responsibility for ultimate oversight of the evolution and consistency of Community and, to a growing extent, Union law. That responsibility is immense, and the Court must, therefore, be organised to enable it to discharge that responsibility appropriately and effectively. Given the number of Member States and the interplay with national courts and tribunals, the European Union probably does need both its Court of First Instance and Court of Justice as presently designed, or some effective merger of the two. The court at the apex of that structure needs, however, to sit around one table. And at that table, the judges need to be able to have full and frank conversations; to see each other, to hear each other, and to sit together again the next day or next week, and the weeks after that. Only through a manageable collegiate structure can a judicial body hope to pull together the threads of a coherent jurisprudence; to maintain them; and to work into that pattern the new legal questions, and solutions, that will continue to arise. And perhaps some day, to defeat that one-sentence nemesis once and for all. The Court of Justice has indeed been rebuilt; but, ironically, what its sprawling physical structure reflects very powerfully is the need for a fundamental rethink and rebuilding of the European Union s judicial architecture. [NNS] Articles Are trends in European company law threatening industrial democracy? Daniel Komo and Charlotte Villiers In this article, we argue that the failure to establish at European level a coherent policy that draws on the inherent links between corporate law, labour law and corporate social responsibility puts at risk existing arrangements for codetermination and employee participation. We suggest that the emphasis upon freedom of establishment, free movement of workers and freedom to provide services, without a clearer policy on employee participation, will lead to a stronger adherence to a shareholder-oriented policy and eventual resort to regime competition. Although certain characteristics may prevail in national institutional arrangements, their effectiveness will be undermined. We make particular reference to the experience of Germany and the impact of these developments upon the German arrangements for collective bargaining. The current global financial and economic crisis presents a further threat and an opportunity for trade unions in Europe and across the globe. EL Rev Alerter Page 3 of 5

4 The right to life and abolition of the death penalty in the Council of Europe Jon Yorke This article investigates the prima facie paradox of the endorsement of the death penalty in Art.2(1) of the European Convention on Human Rights, with the abolition of the punishment provided by Protocol No.6 and Protocol No.13. It will analyse the evolution of the Council of Europe s abolitionist discourse which led to this juxtaposition, and identify whether there are unified or heterogeneous approaches to the punishment by the Committee of Ministers, the Parliamentary Assembly, and the judicial organs of the Commission and Court. What emerges is a conflict between the radical expansion of the boundaries of human rights by the Assembly, with the Committee s demonstration that the shadow of state sovereignty constantly attempts to thwart progress. Consequently, the Court has bowed to the need for Member State acceptance of provisions for amendment of Art.2(1) and has not applied any purposive application of the living instrument doctrine. However, the gradual solidification of the Council s abolitionist position has produced the possibility of legislative abolition through the Protocols, but the text of Art.2(1) remains. So is the death penalty abolished or not? As contemporary practice within Member States affirms that it is, is textual amendment now a moot issue? Margins of appreciation: National values, fundamental rights and EC free movement law Niamh Nic Shuibhne The reconciliation of diverse national values with EC protection of fundamental rights is an ongoing tension. The problems that need to be worked out are made all the more complicated by the often constitutional status of these norms at Member State level, against the backdrop of the objectives of EC free movement law. This article explores some of the ways in which the case law and commentary have conceived balancing frameworks so that different, and often competing, interests can be weighted. The core argument here is that striving to conceptualise free movement as a fundamental right in itself attracts considerable problems. Rather, a free movement infused respect for internal state value spaces, which then allows persons and traders to exercise external choice in moving among them, is developed. The European Union facing the global arena: standard-setting bodies and financial regulation Giulia Bertezzolo The article considers how the European Community deals with global standard-setting bodies operating within the financial sector. EC law seems to be strongly influenced by global standards. In order to understand the processes pursuant to which such standards are incorporated in the EC system and to verify whether EC priorities are represented at global level, this analysis highlights the relationships established by EC and global actors dealing with financial regulation. The article concludes that by creating permanent bodies made up of Member States national authorities, the European Community has provided the conditions for EC interests to be asserted at global level. Analysis and Reflections The PPU: Is it worth the candle? An early assessment Catherine Barnard In 2008, the Court of Justice introduced a new, fast-track procedure to hear cases of urgency referred in areas covered by Title VI TEU and Title IV of Pt 3 of the EC Treaty. This procedure is known by its French acronym as the PPU. This article discusses the first three cases heard under this procedure, Rinau (C-195/08 PPU), Santesteban Goicoechea (C-296/08 PPU) and Leymann and Pustovarov (C-388/08 PPU), and considers whether the Court has been able to combine speed with the effective delivery of justice. EL Rev Alerter Page 4 of 5

5 Capturing the cartel s friends: Cartel facilitation and the idea of joint criminal enterprise Christopher Harding The recent ruling by the Court of First Instance in AC-Treuhand (T-99/04), confirming that a consultancy firm which had facilitated the operation of the Organic Peroxide Cartel thereby infringed Art.81(1) EC, provides some insight into the nature of punishable cartel offending. Now that involvement in business cartels attracts significant sanctions at both a corporate and individual level the basis for such penal liability requires a clear justification. The facilitation of cartels is part of that extra layer of subterfuge which adds to the reprehensible character of the anticompetitive damage arising from cartels, so as to justify penal measures such as large fines and prison terms. A number of recent judgments serve to emphasise that the tough regulation of cartels is as much about dealing with subterfuge and legal defiance as the anticompetitive behaviour in itself. It is also instructive in this context to draw upon the model of the joint criminal enterprise (JCE), as it has been developed in war crimes proceedings, as a way of viewing an anticompetitive cartel as a joint illegal enterprise, which necessarily and significantly includes the role of facilitating actors as well as that of actual price fixers and the like. Accelerated justice or a step too far? Residence rights of non-eu family members and the Court s ruling in Metock Samantha Currie The ruling in Metock (C-127/08) raises interesting (and contentious) issues about the capacity of national immigration policies to retain influence over the entry and residence of third-country national family members of migrant Union citizens. By overruling Akrich (C-109/01) the Court appears to have left Member States powerless to refuse claims of residency from TCN spouses of Union citizens, even in circumstances where they have previously been unlawfully present on the Member State s territory and regardless of when the marriage occurred. This analysis examines the basis on which the Court reached this conclusion and speculates on the wider impact of the judgment. In particular, it highlights how the notion of protecting the family life of the Union citizen, even if this demands some recognition of the sometimes unfixed nature of family relationships, had a significant influence on the Court s reasoning. It also demonstrates the disjuncture between the (predominantly negative) political reaction to the ruling, which has expressed concerns about its impact on a broader scale, and a view of the judgment as being legally justified, particularly in the context of the case at hand and the individuals involved. Metock also raises interesting procedural issues as it is a rare example of an accelerated procedure being applied to a reference for a preliminary ruling. Thus, the analysis also considers how the ruling potentially sets a worrying procedural precedent that risks undermining the intensity of the legal analysis engaged in by the Court in cases of extreme importance. Book Reviews Tables Index EL Rev Alerter Page 5 of 5

JUDGMENT OF THE COURT 11 May 1989*

JUDGMENT OF 11. 5. 1989 CASE 25/88 JUDGMENT OF THE COURT 11 May 1989* In Case 25/88 REFERENCE to the Court under Article 177 of the EEC Treaty by the tribunal de grande instance de Bobigny for a preliminary