Category: ECJ

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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Restitution in EU law

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| ECJ, Restitution

From the excellent ECJblog, I discover a fascinating case about the principles of restitution in EU law (emphasis added):

Case C-470/08, Kornelis van Dijk v Kampen

Kampen towerSince 1982, Mr van Dijk had leased from the Dutch Municipality of Kampen (pictured right) a number of parcels of agricultural land … The lease between the two parties did not contain any clauses relating to the income supported scheme or payment entitlements.

For a number of years Mr van Dijk had received … [various EU] compensatory payments … A dispute arose between Mr van Dijk and the Gemeente Kampen regarding the nature and the extent of the obligations under the lease. The referring court essentially asked whether Community law required a lessee, on the expiry of the lease, to deliver to the lessor the leased land along with the payment entitlements accumulated thereon or relating thereto, or to pay him compensation.

The Court held that … payment entitlements remained with the lessee on the expiry of the lease … [the relevant schemes] did not contain any obligation on farmers who had leased land to transfer their payment entitlements to the lessor on the expiry of the lease.

The Court held that, in accordance with the principles common to the laws of the Member States, the right to restitution from the person enriched was conditional upon there being no valid legal basis for the enrichment at issue (Case C-47/07 P Masdar (UK) v Commission [2008]).

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Traffic Data Retention, Irish-style, returns to the legislative agenda

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| data retention, Digital Rights, ECHR, ECJ

AC Grayling book cover, via BloomsburyThe Communications (Retention of Data) Bill 2009, published last week, has caused a bit of a stir in this morning‘s newspapers. It will give effect to EU Data Retention Directive 2006/24/EC of 15 March 2006 (blogged here) which recently survived challenge by the Irish Government in the European Court of Justice, and it will replace the radically misconceived and deeply flawed stop-gap Part 7 of the Criminal Justice (Terrorist Offences) Act, 2005 (also here) (blogged here).

In essence, the Bill requires telecommunications companies, internet service providers, and the like, to retain data about communications (though not the content of the communications); phone and mobile traffic data have to be retained for 2 years; internet communications have to be retained for one year. This is better than it could have been, in that the Directive would have allowed 2 years for all traffic data; but it is a lot worse than the minimum of 6 months allowed by the Directive. This will impose significant costs on those obliged to retain and secure the data, and those costs will be passed on to their already hard-pressed customers. And it is likely to drive international telecommunications and internet companies to European states which have introduced far less demanding regimes.…

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Mandatory retirement, again

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| ECJ, judges, Law

Case Dismissed. I've just reached my retirement age, via ToonpoolsIn my last post, I mentioned that the question of the compatibility of mandatory retirement ages with EU law was pending before the European Court of Justice (ECJ). The Court has now handed down its decision, upholding the principle of mandatory retirement ages, but requiring them to be justified on a high standard of proof.

The case, C-388/07 R (on the application of The Incorporated Trustees of the National Council on Ageing (Age Concern England)) v Secretary of State for Business, Enterprise and Regulatory Reform, was a reference from the High Court (Queen’s Bench Division, Administrative Court), for a preliminary ruling concerning the interpretation of Council Directive 2000/78/EC (pdf) of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p16), which had been transposed in the UK by the Employment Equality (Age) Regulations 2006 (SI No 1031 of 2006). The Directive and the Regulations provided for a general principle of non-discrimination on the grounds of age. However, they allowed for exceptions that are objectively and reasonably justified by a legitimate aim, provided that the means of achieving that aim are appropriate and necessary (see, eg, Article 6(1) of the Directive).…

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Data retention ironies

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| data retention, Digital Rights, ECJ, EU media policy, Privacy

I can’t make up my mind whether it’s ironic or not that the European Court of Justice has upheld the Data Retention Directive on Safer Internet Day.

I’ll let Digital Rights Ireland tell the story:

European Court upholds data retention… for the time being

The European Court of Justice has given its decision today in the Irish Government challenge to the Data Retention Directive – [Case C-301/06] Ireland v. Parliament and Council (Press Release | Judgment). Unsurprisingly (in light of the Advocate General’s Opinion) it has held that the directive was properly adopted as an internal market measure (by qualified majority voting) rather than as a criminal matter (requiring unanimity). Where does this leave us and our case?

While it’s a pity to see the Directive upheld, the Government’s challenge was a very narrow one, dealing only with the essentially technical matter of the legal basis for the Directive. The Government didn’t raise and the ECJ wasn’t asked to decide on the fundamental rights issues. Indeed it expressly stated:

The Court notes at the outset that the action brought by Ireland relates solely to the choice of legal basis and not to any possible infringement by the directive of fundamental rights resulting from interference with the exercise of the right to privacy.

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