Category: ECJ

There’s no guarantee Ireland’s new Brexit case will get the referral it wants

Article 50 plus EU UK flags Brexit mashup, based on pixabay imageIt’s not everyday that the prospect of an action in the Irish High Court makes worldwide headlines. But a case about the mechanism by which a member state can depart from the European Union is doing just that.

The background lies in last June’s referendum in the United Kingdom, in which the majority voted leave the EU. As a matter of European law, the departure process is provided in Article 50 of the Treaty on European Union. The UK Prime Minister, Theresa May, has stated repeatedly that she wants to begin this process before the end of March next year, and the House of Commons on Wednesday voted to approve this timetable.

The Article 50 process is a recent enough creation. It was inserted into the Treaty by the Treaty of Lisbon in 2007, and it came into force in 2009. It provides that a departing state must notify the European Council of its intention to leave; and it gives the EU and the departing state two years to negotiate the departure arrangements. But the departure of a state from the EU hasn’t happened before; so we are in uncharted waters, both politically and legally; and ambiguities in the text of Article 50 don’t help.

It is not clear, for example, what form the notice to the European Council must take. Neither is it clear whether the two year process can be suspended, or whether a state which has started the process can change its mind and stop the withdrawal process. Nor is it clear what impact withdrawal from the EU would have on the withdrawing state’s relationships with other European bodies, such as the European Economic Area (the EEA). Where a matter of EU law is unclear, the Court of Justice of the European Union (the CJEU) in Luxembourg is the only authoritative source of a binding answer. And Article 267 of the Treaty on the Functioning of the European Union provides a mechanism by which a national court dealing an issue of EU law can seek a preliminary ruling from the CJEU. So, any party to a case raising an unclear issue of EU law, such as Article 50, can ask the court to refer that issue to the CJEU.

The plaintiffs seeking a reference from the High Court to the CJEU about the meaning of Article 50 are likely to be Members of the European Parliament for various UK constituencies [a draft statement of claim is here (pdf)], possibly including some from Northern Ireland. It’s constitutional litigation, but really the continuation of politics by other means. Nevertheless, the sight of politicians making constitutional arguments about political grievances is not an unusual one in Irish courts.

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Article 50 in the Irish High Court: cometh the hour, cometh the case?

Article 50 plus EU UK flags Brexit mashup, based on pixabay imageIt is a rare provision of a Treaty, or a constitution, or an Act, that achieves fame or notoriety simply by means of its number. The First Amendment is so famous the world over that we do not need to be told that it is a clause in the Bill of Rights to the US Constitution. Section 31 was once just as notorious in Ireland. Rapidly joining this pantheon is Article 50. It is an Article of the Treaty on European Union, inserted by the Treaty of Lisbon, to provide a mechanism by which a Member State may withdraw from the EU. It has been plucked from the obscurity of an EU Treaty and thrust into the glare of worldwide headlines by the UK referendum on 23 June 2016 in which the majority of participants voted to leave the EU.

The interpretation of Article 50 has provoked much political and legal discussion, but little consensus. Indeed, I have commented twice on this blog (here and here) on the question whether a notice served by the UK under that Article may be suspended or withdrawn. Only the Court of Justice of the European Union (CJEU) can answer that question authoritatively. Writing in today’s Irish Times, Jolyon Maugham QC of Devereux Chambers, London, makes an intriguing suggestion as to how the CJEU might come to provide that answer:

Ireland, do the UK a favour: refer Brexit to Europe

A legal decision that article 50 is revocable would allow for change of mind about leaving

… In a wide ranging interview with London’s Financial Times, Koen Lenaerts [President of the CJEU] observed there are “many, many different ways” that Brexit could end up before him. … if the UK courts will not refer the revocability of article 50 to the European Court, might the Irish courts? They could and they should.

[links and emphasis added]

Apart from the political and practical concerns with this suggestion, there are at least two big legal questions here – Maugham’s “could”, and Maugham’s “should”. As to “could”, how could the Irish courts come to make a reference to the CJEU on the issue of the revocability of Article 50? What is the nature of the case that poses the question? What are the facts that compel the High Court in Dublin to make the reference? Who are the parties (plaintiff(s) and defendant(s))? What is the plaintiff’s cause of action? What remedies does the plaintiff seek? One of the many lessons of Re McCord [2016] NIQB 85 (28 October 2016) and R (Miller and dos Santos) v Secretary of State for Exiting the European Union (Rev 1) [2016] EWHC 2768 (Admin) (03 November 2016) is: cometh the hour, cometh the cases. I can see the outlines of at least four possible cases; doubtless there are others; [update: a potential fifth, which is already before the courts, was drawn to my attention on twitter here and here]; indeed, if a case in the High Court does end up making a reference to the CJEU, I would not be at all surprised if it were to be founded upon an entirely different set of facts. (more…)

Exhausting exhaustion – the limits of the first sale doctrine in EU copyright law

ExhaustionThe exhaustion of intellectual property [IP] rights by the first sale of the protected work is a fundamental principle of IP law. Where a work or product covered by an IP right is sold by the rightholder, that IP right is exhausted in the sense that it can no longer be exercised by the rightholder to prevent the purchaser from selling or lending the work or product to a third party. For example, Article 4(2) of the Software Directive (Directive 2009/24/EC) provides

The first sale in the Community of a copy of a program by the rightholder or with his consent shall exhaust the distribution right within the Community of that copy, …

Article 4(2) of the InfoSoc Directive (Directive 2001/29/EC) is in similar terms. In Case C-166/15 Ranks and Vasilevics, the Court of Justice of the European Union [CJEU] explored the limits of this rule, and established the point at which the exhaustion doctrine is itself exhausted. As to the rule, the CJEU held:

The holder of the copyright in a computer program who has sold, in the EU, a copy of that program on a material medium (such as a CD-ROM or a DVD-ROM) with an unlimited user licence can no longer oppose the subsequent resale of that copy by the initial acquirer or subsequent acquirers of that copy, notwithstanding the existence of contractual terms prohibiting any further transfer.

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Dearer to us than a host of truths is an exalting illusion? EU Data Transfer Regulation after Schrems

Kuner & FennellyMy favourite Steve Jobs aphorism (and there are so many from which to choose) is

People who know what they’re talking about don’t need PowerPoint.

(see Steve Jobs by Walter Isaacson (Simon and Schuster, 2011) 337). Last Thursday, Chris Kuner elevated this from apothegm to axiom, resoundingly proving the truth of that insight, by providing a masterclass in compelling presentation without resort to the crutch of powerpoint or similar slides. Chris is pictured above left, chatting with David Fennelly, before delivering a powerful lecture on “Reality and Illusion in EU Data Transfer Regulation” in the light of the decision of the Court of Justice of the European Union in Case C-362/14 Schrems v Data Protection Commissioner [2015] ECR I-nyr (Grand Chamber, 6 October 2015) to a rapt audience in Trinity College Dublin. He began with a quote from Chekov:

Dearer to us than a host of truths is an exalting illusion.

This is from Chekov’s short story “Gooseberries” (see Richard Pevear and Larissa Volokhonsky (tr) Selected Stories of Anton Chekov (Random House, 2009) 311 at 317), where the Nikolai is deluding himself that his gooseberries – actually “hard and sour” – are in fact the succulent and luscious fruit which he had always dreamed of growing. So it is, Chris argued, with EU regulation of trans-border data flows, which is at present an exalting illusion running up against a host of political realities.

In Schrems, the CJEU held that national data protection authorities [DPAs] could independently make decisions on the adequacy of data protection regimes in countries to which EU data is exported, notwithstanding a Commission decision on such adequacy, and that the Commission Safe Harbour decision on the adequacy of the US data protection regime was invalid. Four themes can be discerned in the judgment. First, there is a strong affirmation of the right to data protection under the EU Charter of Fundamental Rights, building on the prior judgments in Joined Cases C-293/12 and C-594/12 Digital Rights Ireland and Seitlinger (Grand Chamber, 8 April 2014) [and Case C-131/12 Google Spain (Grand Chamber, 13 May 2014)]. Second, EU data protection standards – and in particular, the Charter – apply to transfers to third countries. Third, the CJEU elevated the role of independent national DPAs (especially as against the EU Commission) and empowered individuals to complain to such DPAs. And, fourth, the CJEU held that the “adequate level protection” of international transfers of data required by EU law is equivalent to the level of data protection provided by EU law – Chris stressed that “equivalent” here is not necessarily “identical”, but that this is still a high bar.

The impact of the CJEU decision in Schrems goes far beyond the context of the invalid safe harbour. Chris gave four examples. (more…)

Some forthcoming legislation on the administration of justice, cybercrime, education, intellectual property, and privacy

Government Buildings by night, via Wikipedia

Government Buildings,
Merrion Square, Dublin.
Image via wikipedia
Government Chief Whip Regina Doherty has announced the Government’s Legislation Programme for the Autumn Session 2016 (pdf). It is a considerable update of the programme published last June (pdf) when the government came into office.

The June programme had the feel of a holding document, published to get a new government to the Summer Recess. This programme has a far more substantial feel about, published to demonstrate the government’s confidence in its capacity to promote and enact legislation.

After the publication of the June programme, I examined proposed legislation from the Department of Education and Skills (here; and see also here), the Department of Jobs, Enterprise and Innovation (here; and see also here and here), and the Department of Justice and Equality (here and here). Under those headings, very little has changed. But there are some notable additions, not least of which is the Interception of Postal Packets and Telecommunications Messages (Regulation) (Amendment) Bill. All we are told is that work is underway on a Bill to “amend various pieces of legislation in respect of electronic communications”. There is no further explanation. This is probably the Bill to provide for further covert surveillance of electronic communications promised by the Minister earlier this Summer. It is also likely to cover incoming requests from overseas to access to data held in Ireland. It may also include preparatory work for the response to the investigations being carried out by retired Chief Justice John Murray and retired Supreme Court judge Nial Fennelly. However, at present, this is just speculation, so we shall have to wait and see what the Department has in mind.

As to the administration of justice, priority legislation to be published by the Department of Justice and Equality this session includes a Bill to make provision for periodic payment orders to replace lump sum damages, and a (hastily-promoted?) Bill to establish the long-awaited Judicial Council. Indeed, that Bill is expected to undergo pre-legislative scrutiny this session, as is a Bill to replace the Judicial Appointments Advisory Board with a new Judicial Appointment Commission – indeed, the cabinet agreed yesterday to bring forward the heads of such a Bill by November. All of these developments are very welcome – provided that the Appointments Bill permits legal academics to apply for appointment to be bench, especially at appellate level. It would not be difficult to draft the necessary legislative provisions, and there is no reason in principle not to do so.

As to cybercrime, first, the busy Department of Justice and Equality is promoting the Criminal Justice (Offences Relating to Information Systems) Bill 2016, to implement Directive 2013/40/EU on attacks against information systems. It is on the Dáil Order Paper, awaiting Second Stage. Second, in the ‘I’ll believe it when (if) I see it’ category is the long-promised and almost long-forgotten Cybercrime Bill to give effect to the Council of Europe Convention on Cybercrime 2001. Yes, you read that right, it’s a 2001 Convention. It is 15 years old, which is a lifetime online.

As to education, legislation envisaged at some stage from the Department of Education, but probably not in this session, includes the Higher Education (Reform) Bill and the longer-threatened Universities (Amendment) Bill (critiqued here, here, here, and here). And the Technological Universities Bill 2015 remains on the Dáil Order Paper, awaiting Committee stage.

As to intellectual property, pre-legislative scrutiny is expected shortly on the Knowledge Development Box (Certification of Inventions) Bill. Heads of a Bill to amend Article 29 of the Constitution to recognise the Agreement on a Unified Patent Court were approved on 23 July 2014, though, in the light of Brexit, a cautious approach for the time being may mean that other Bills may progress ahead of it from the Department of Jobs, Enterprise and Innovation to the Oireachtas. Finally, the Copyright and Related Rights (Amendment) (Miscellaneous Provisions) Bill has been “referred to committee” pre-legislative scrutiny. This is presumably the Joint Committee on Jobs, Enterprise and Innovation. However, the Bill is not in the pre-legislative scrutiny list for this session, so we probably won’t see it in committee before Christmas.

As to privacy, the most important piece of legislation mentioned in the Programme is the Data Protection Bill, to transpose the EU Directive 2016/680 and give full effect to the General Data Protection Regulation (Regulation 2016/679). Heads are expected before the end of 2016 (but I’m not holding my breath). A Data Sharing and Governance Bill will be published and sent for pre-legislative scrutiny, to mandate and facilitate lawful data-sharing and data-linking for all public bodies, and a Health Information and Patient Safety Bill go further in the context of health information. In both cases, the drafting will be tricky, not least because the Bills will have to be compliant with the decision of the Court of Justice of the European Union in Case C?201/14 Bara. The Criminal Records Information System Bill and the Passenger Name Record Bill implement EU obligations. However, in the case of the latter, since there is a challenge before the CJEU in respect of a related measure, a cautious approach for the time being may mean that other Bills may progress ahead of it from the Department of Justice and Equality to the Oireachtas.

Finally, it is heartening to see that work has commenced on a Bill to remove blasphemy from the Constitution, and interesting to see active proposals to establish an Electoral Commission and to amend the transfer of records in the National Archives from 30 years to 20 years.

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Is Article 50 a one-way street; can a withdrawing State stop on it, or reverse out of it?

One Way Street via WikipediaIn an earlier post, I argued that there may be an Article 50 route to a second Brexit referendum and the UK remaining in the EU. It has been a small drop in the online torrent of serious analysis of the legal and political consequences of last week’s referendum. My must-reads include Mark Elliott, the UK Constitutional Law Association’s blog, the LSE’s BrexitVote blog, the Brexit Reflections on the blog of the Centre on Constitutional Change in the University of Edinburgh, and the Brexit and Article 50 streams on the always excellent Conversation. It was there that I read a great piece by Phil Syrpis entitled Once the UK triggers Article 50 to start Brexit, can it turn back?. He asks whether the UK can have second thoughts stop the Article 50 process, and he comments

It seems staggering that there is no clear answer to this key legal question.

I could not agree more. Nevertheless, even if there is no clear answer, a consensus does seem to be emerging. In my last post, I said that the House of Lords’ European Committee Paper on The process of withdrawing from the European Union (11th Report of Session 2015–16; HL Paper 138; html | pdf) is an excellent guide to the legal mechanics of the UK’s withdrawal from the EU. As part of the process of preparing that Paper, the Committee held a public evidence session with two EU law experts: Sir David Edward, a former Judge of the Court of Justice of the European Union, and Professor Derrick Wyatt QC, Emeritus Professor of Law, Oxford University; and they both

10. … agreed that a Member State could legally reverse a decision to withdraw from the EU at any point before the date on which the withdrawal agreement took effect. Once the withdrawal agreement had taken effect, however, withdrawal was final. Sir David told us:

It is absolutely clear that you cannot be forced to go through with it if you do not want to: for example, if there is a change of Government.

Professor Wyatt supported this view with the following legal analysis:

There is nothing in the wording to say that you cannot. It is in accord with the general aims of the Treaties that people stay in rather than rush out of the exit door. There is also the specific provision in Article 50 to the effect that, if a State withdraws, it has to apply to rejoin de novo. That only applies once you have left. If you could not change your mind after a year of thinking about it, but before you had withdrawn, you would then have to wait another year, withdraw and then apply to join again. That just does not make sense. Analysis of the text suggests that you are entitled to change your mind.

11. Professor Wyatt clarified that “a Member State remains a member of the European Union until the withdrawal agreement takes effect”, so would continue its membership on the same legal terms as before the decision to withdraw.

Syrpis (on the Conversation blog, and also here), with dry understatement, says that seems to him “to be the most sensible view”, and he adds:

Article 50 is not designed to make it easy for a state to leave the EU, and it would surely be interpreted and applied so as to make it easy for a state that, after all, decided that it wanted to remain. So, while the clock does start ticking once the Article 50 notification is made, it is at least possible that the process could be stopped at any stage – at the UK’s initiative. …

If the legal opinions quoted here are correct … it will be possible to stop the process at any stage during the negotiation process, with the UK remaining a part of the EU. That opens up a possibility for parliament, or the people, perhaps in a second referendum, to have a say on the new deal, and to decide, perhaps two or three years down the line, whether we want to remain in the EU, or leave on the terms secured via the negotiations.

This is precisely the conclusion at which I arrived in my previous post, in which I argued that there may be an Article 50 route to a second Brexit referendum and the UK remaining in the EU. If the policy underlying Article 50 is to make withdrawal difficult, then this is the policy on foot of which any purposive or teleological interpretation of the Article must proceed. In my previous post on this issue, I argued that such a teleological interpretation supports the conclusions not only that the process can simply be halted, but also that any automatic withdrawal under Article 50 could be postponed until a withdrawal agreement enters into force, so that if such an agreement never enters into force, automatic withdrawal would not kick in. In this respect, therefore, Article 50 is not really a one-way street; a withdrawing State can stop on it, and may even reverse out of it. These will be difficult manoeuvres (perhaps not as difficult as the multi-point turn in the movie Austin Powers – The International Man of Mystery (IMDB), pictured right), but they are not beyond the ken of Whitehall mandarins and Brussels bureaucrats to perform.

There may be an Article 50 route to a second Brexit referendum and the UK remaining in the EU

Brexit, via PixabyI still can’t believe the news about Brexit, and I suspect the same is true of many on both sides of the issue. Since then, there has been much talk about Article 50, and much speculation about the possibility of a second referendum to undo the first. In this brief post, I want to put those two issues together. First, Article 50 is an article of the Treaty on European Union inserted by the Treaty of Lisbon. It is the mechanism by which a Member State may leave the EU. It provides in full as follows (with added links):

  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 [of the Treaty on European Union].

Let us assume that, following the Brexit referendum vote and pursuant to the UK’s own constitutional requirements, the procedure in this Article is triggered, and agreement is reached between the UK and EU on the terms of a withdrawal agreement.

[Revised and updated]: An excellent guide to the process is provided in the House of Lords’ European Committee Paper on The process of withdrawing from the European Union (11th Report of Session 2015–16; HL Paper 138; html | pdf); a clear practical summary of the process is helpfully set out by the BBC EU spells out procedure for UK to leave; and Duncan French provides very clear analysis of the legal implications of the UK’s renegotiation and withdrawal. As to the necessary UK Parliamentary procedures, see Nick Barber, Tom Hickman & Jeff King on Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role and the replies by Carl Gardner’s Article 50, and UK constitutional law and Kenneth Armstrong Push Me, Pull You: Whose Hand on the Article 50 Trigger?.

My question is, could the UK government put that withdrawal agreement to a further referendum, asking in effect if the UK should ratify it and bring it into force? And if it does, is there any route by which a vote to reject the withdrawal agreement and to remain in the EU could be given effect? The terms of withdrawal would be clear, and the choice facing the voters would be more realistic and more focussed than in last week’s referendum. I will leave the politics of this to others, but I will raise here two of the (doubtless many, many) legal issues which arise.

The first issue is whether this is possible from the perspective of the UK’s constitutional requirements. I don’t see why not, but I welcome comments as to whether this is so. As with the current referendum, by virtue of the doctrine of Parliament Sovereignty, it would only be a pre-legislative and non-binding advisory referendum, but Parliament would be very slow indeed to decline to act accordingly.

The second issue is whether this is possible from the perspective of the Article 50 TEU (above). Here, things are a little more opaque. On a literal interpretation of the Article, it does not seem to provide for the suspension of the withdrawal process, but the CJEU has never tied itself to an exclusively literal approach to the European Treaties. Instead, as former CJEU Advocate General and retired Irish Supreme Court judge, Nial Fennelly, explains:

The characteristic element in the Court’s interpretative method is … [the] “teleological” approach, … that it is necessary to consider “the spirit, the general scheme and the wording,” supplemented later by consideration of “the system and objectives of the Treaty.” In more recent years, the idea of “context” has been added, and the prevailing wording, varying minimally from case to case, has been that it is necessary when interpreting a provision of Community law to consider “not only its wording, but also the context in which it occurs and the objects of the rules of which it is a part.”

I suspect that the CJEU would, on this basis, be able to find that the Article 50 process could be suspended or abandoned, but I would not wish to predict whether it would do so. It is a Court often noted for its realpolitik and pragmatism, but there are limits to how far it can or will go to accommodate political agreements. It might perhaps be asked for an advisory opinion on the issue. If the CJEU finds that suspension or abandonment of the Article 50 process is possible, if a second Brexit referendum were to be in favour of remain, if Parliament therefore indicated its intention not to ratify the withdrawal agreement, if the UK government consequently sought the suspension or abandonment of the Article 50 process, and if the other Member States – via the European Council – agreed, then the Article 50 process could be suspended or abandoned.

If suspension or abandonment is not possible, then the issue will turn on Article 50, paragraph 2 (above), which provides that the EU Treaties cease to apply to the departing Member State in two circumstances: either on the entry into force of the withdrawal agreement, or two years after Member State notifies the EU that it wished to begin negotiations for withdrawal “unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period”. If a second Brexit referendum were to be in favour of remain, and Parliament therefore indicates its intention not to ratify the withdrawal agreement, the first alternative in Article 50 paragraph 2 is satisfied, and the withdrawal agreement would not come into force on that ground.

More complications arise under the second alternative, by which the withdrawal seems automatic after two years “unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period”. So, the question is: could some form of words be agreed “to extend this period” indefinitely? And even if so, would the CJEU uphold it? Again, I would not wish to predict whether it would, and it might again be asked for an advisory opinion on the issue.

Rather less susceptible to a successful challenge would be a form words that clove more closely to Article 50 and did not expressly say that it would extend the period “indefinitely”. Instead, it might provide that the period would be extended until a withdrawal agreement enters into force. That could – and, in practice, probably would – amount to an indefinite extension, but it would be much closer to the spirit of Article 50, and well within the linguistic flexibility that has been shown in Treaty negotiations in the past. As before, I would not wish to predict whether the CJEU would uphold such a formulation, and an agreement to this effect might form the basis on which it could be asked for an advisory opinion on the issue. If the CJEU approves a form of words by which automatic withdrawal would be postponed until a withdrawal agreement enters into force, if a second Brexit referendum were to be in favour of remain, if Parliament therefore indicated its intention not to ratify the withdrawal agreement, if the UK government consequently sought the postponement of automatic withdrawal until a withdrawal agreement enters into force, and if the other Member States – via the European Council – agreed, then the second alternative in Article 50 paragraph 2 is satisfied, and the withdrawal agreement would not come into force on that ground.

I am even less clear on this EU issue than I am on the UK constitutional issue above, and I equally welcome comments as to whether this is legally possible. I leave the question of whether this is likely to the politicians.

Let us therefore assume that the UK would negotiate a withdrawal agreement pursuant to Article 50, and put it to the people in a referendum. Let us further assume that the result in that referendum is in favour of remain, such that the withdrawal agreement is rejected, and Parliament therefore declines to ratify that agreement and bring into force. In such circumstances, my question is this: could the UK rely on an agreement with the other Member States – via the European Council – either that the Article 50 process would be suspended or abandoned, or that any automatic withdrawal would be postponed until a withdrawal agreement enters into force? In either case, the result would be that the Article 50 process would have provided route, via a second Brexit referendum, to ensuring that the UK would not have left the EU. Time may well tell. Meanwhile, answers on a postcard …

In the inugural Arthur Browne lecture, Prof Gráinne de Búrca says that EU anti-discrimination law is not really in decline

Arthur Browne via NLI

Arthur Browne
Arthur Browne KC MP (1756-1805) (pictured left; see wikipedia | DNB) was a Regius Professor of Law in Trinity College Dublin, and a leading Irish lawyer and politician, at the end of the eighteenth century:

Browne was one of the most distinguished academic lawyers to teach in Trinity College, Dublin, perhaps the ablest. His writings are still worth reading; and not merely for their historic interest. His life reveals a lawyer of wide culture and compassion, who tried in the turmoil and cruelty of eighteenth century Ireland to reconcile opposition to popular violence and an attachment to the established state and church with opposition to arbitrary state power. His views on legal education and on many aspects of the law were enlightened for the time. Browne deserves a place in the history of Irish law, and not merely as the last Irish Prime Serjeant.

[Paul O’Higgins “Arthur Browne (1756-1805):
An Irish Civilian” (1969) 20 NILQ 255, 270].

The Irish jurist Arthur Browne was one the most gifted legal scholars of eighteenth-century Ireland; he was also an educator, an advocate, and a parliamentarian. Born in America of Irish parentage, Browne studied at Trinity College, Dublin, eventually becoming professor of civil law and publishing works on civil, admiralty, and ecclesiastical law at the turn of the nineteenth century. A Hiberno-civilian, he acted as advocate and judge in both the common and civil law courts and was the last prime serjeant of Ireland. The polyglot Browne wrote political tracts, translations, and literary and antiquarian essays. He was also an MP (1783-1800), a passionate protestant, and an Irish whig.

[Seán Patrick Donlan “‘The Debt Is Forgotten’:
A Compendious View of Arthur Browne, c1756-1805”
(2009) 13(3) Electronic Journal of Comparative Law;

see also JC Sweeney “The Admiralty law of Arthur
Browne” (1995) 26 Journal of Maritime Law and
Commerce
59; and Seán Patrick Donlan “‘Regular
Obedience to the Laws’. Arthur Browne’s Prelude to
Union” in Seán Patrick Donlan and Michael Brown
(eds) The Laws and Other Legalities of Ireland,
1689-1850
(Routledge, 2011 | Amazon) 255.]

A full biography is due later this year. Meanwhile, the School of Law, Trinity College Dublin has inaugurated an annual series of public lectures in his honour and memory. Last Friday, Prof Oran Doyle, Head of the School of Law, introduced the inaugural Arthur Browne lecture by Professor Gráinne de Búrca, who posed the question

Is EU Anti-Discrimination Law in Decline?

Her ultimate answer is that it is not really in poor health, but she did point to some symptoms of abatement which had prompted the question in the first place, and she ultimately argued that EU anti-discrimination law is not so much in decline as in a new and more complex phase of its development. At a time when Europe is in crisis on multiple fronts, the protection of the marginal is all the more important. A commitment to equality and non-discrimination is a mark of a humane society, especially at times of stress.

Gabrielle Defrenne

Gabrielle Defrenne
For many decades, EU equality law was seen as a powerful norm, especially in the hands of the Court of Justice of European Union. The Court which staunch in its promotion of gender equality in the workplace; and the many of its developments were then incorporated into legislation. In particular, from Case C-43/75 Defrenne v Sabena [1976] ECR 455 onwards, the Court invented a general principle of equality, broadened it to reach indirect discrimination, reversed the burden of proof once discrimination has been prima facie established, and expanded the range of grounds of discrimination. This was taken up by what is now Article 19 TFEU (originally introduced by the Treaty of Amsterdam, 1997), which provides that the Council and Parliament “may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation” and by Title III of the Charter of Fundamental Rights of the European Union. This was capped by two Directives in 2000: Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [the Race Directive], and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [the Framework Directive]. This was the high-point of the development of the EU anti-discrimination law, and it was her analysis of what has happened since 2000 that suggested that EU anti-discrimination law might be in decline. In particular, a third Directive proposed in 2008 (effectively to align the protections provided in the two 2000 Directives) has stalled; the two 2000 Directives have given rise to a relatively low number of cases before CJEU; and the nature and substance of the Court’s rulings in the few cases have reached it have been cautious where they used to have been ambitious.

de Burca via NYU

Prof Gráinne de Búrca
Prof de Búrca (pictured left) compared and contrasted the two 2000 Directives. They both require equal treatment in employment on the various grounds covered by them; but, whilst the Framework Directive is confined to the employment context, the Race Directive extends beyond that to reach social protection, education, and access to and supply of goods and services. So, whilst the personal scope of both is very wide, the Framework Directive is broader in that it goes to broader range of grounds, but it’s narrower in that it’s limited to the employment context. Moreover, Article 3(2) of the Race Directive provides

This Directive does not cover difference of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons on the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned.

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