Category: ECJ

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

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| ECJ, Irish cases

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.…

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

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| ECJ, Irish cases

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.…

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

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| Copyright, ECJ

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

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| ECJ, GDPR, PowerPoint, Privacy

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.…

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

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| Blasphemy, Copyright, Cyberlaw, Digital Rights, ECJ, Intellectual property, Judicial Appointments, Legal Education, Privacy, Universities

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.…

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

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| ECJ

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.…

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

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| ECJ

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

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| Conferences, Lectures, Papers and Workshops, ECJ, Human Rights

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.

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