Friday, April 27, 2012

Visas for Prime Ministers

Apparently there was a problem with the Croation Prime Minister, who didn't like the questions he was asked on his visa application form for the upcoming NATO summit in Chicago. (The full story is here.) I was surprised to hear about this, because I always assumed that a  head of government travelling in his official capacity wouldn't need a visa. It turns out I was wrong.

The easiest place to look that up is in EU law. The Schengen Border Code says that Heads of State and other dignitaries do not get an entry stamp (art. 10(3)(a)), but when it comes to border checks the only exception is for a Head of State and his delegation (Annex VII, par. 1). They are not subject to border checks. The best the SBC has on offer for VIPs travelling without a Head of State is priority check-in:
4.1. In view of the special privileges or immunities they enjoy, the holders of diplomatic, official or service passports issued by third countries or their Governments recognised by the Member States, as well as the holders of documents issued by the international organisations listed in point 4.4 who are travelling in the course of their duties, may be given priority over other travellers at border crossing points even though they remain, where applicable, subject to the requirement for a visa.
When it comes to visas, there is a special regulation, Regulation 539/2001. Regarding diplomatic VIPs, it says:
Article 4
1. A Member State may provide for exceptions from the visa requirement provided for by Article 1(1) or from the exemption from the visa requirement provided for by Article 1(2) as regards:
(a) holders of diplomatic passports, official-duty passports and other official passports;
Operative word: may.

Now we might speculate that a continent that is as committed to the fostering of international relations as Europe (cf. art. 90 of the Dutch Constitution: "The Government shall promote the development of the international rule of law.") will generally provide for such visa exemptions. But clearly, according to the European legislator, there is no rule of international law that requires them to do so. Clearly, the fact that sovereign immunity extends to a travelling prime minister (cf. ICJ in Congo v. Belgium) does not mean that he also has to be able to enter the country.

For the US, the relevant law is - with characteristic brevity - in 22 CFR 41.26, which discusses who gets to have a diplomatic visa. Note that they even include Heads of State.

Thursday, April 26, 2012

This Week in Luxembourg

In Kamberaj, the plaintiff tried to give the ECHR direct effect in the Community legal order via art. 6(3) TEU, but the Grand Chamber (Judge Ó Caoimh) passed. The principles of ECHR law are applicable to EU law, but the ECHR itself is not (yet). The Court then moved on to apply art. 34 Charter rather enthusiastically, using it as a limiting principle for art. 11(4) of Directive 2003/109, which allows the MS to discriminate against 3rd country nationals in the area of social assistance in some circumstances. Cf. Europeanlawblog and ECJBlog.

In Commission v. Cyprus (FR), the Court (per Judge Berger) decided that Cyprus had violated art. 11(1) of Directive 2002/21 and art. 4(1) of Directive 2002/20 by failing to establish a non-discriminatory and transparent charging system for access to telecoms base stations. Cf. the e-comm blog (in German)

In Commission v. Netherlands, the ECJ (Judge Ó Caoimh) held that the Dutch administrative charges for various categories of residence permits are excessively high, in violation of Directive 2003/109. Cf. also January’s G.R. v. the Netherlands in the Court of Human Rights.

Apparently the Spanish decided to go all-in with their anti-smoking policy, banning the import of tobacco from anywhere, including from the rest of the EU, by retail tobacco sellers. Unsurprisingly, the Court (Judge Malenkovský) thinks this is a measure having equivalent effect that cannot be justified under art. 34 TFEU. (Although “unsurprisingly”? If the Swedes are allowed to do it with alcohol, why not the Spanish with tobacco?) Asociación Nacional de Expendedores de Tabaco y Timbre (ANETT) v. Administración del Estado

In Denmark the copyrights organisation is annoyed with the use of copyrighted music by public broadcasters under a statutory exception to the normal rules. For this reason, it has asked the courts to rule that this exception only applies to programmes produced by the TV companies themselves, not to programmes commissioned elsewhere. However, like the AG, the ECJ (Judge Malenovský) doesn’t go for it. DR and TV2 Danmark v. NCB

In Nemzeti Fogyasztóvédelmi Hatóság v. Invitel Távközlési Zrt, some Hungarians are having fun with an action popularis in consumer protection law (i.e. the consumer protection agency is asking for an injunction forbidding the use of certain contract terms). The Court (Judge Safjan) thinks this approach is permissible under Directive 93/13.

In Hofmann v. Bayern, the Court (Judge Rosas) held that Mr. Hofmann is allowed to use his Czech driving license in Germany even though the Germans took his German license away for drunk driving. That makes sense, given that apparently he was legitimately resident in the Czech republic at the time of issuing.

Much discussed among intellectual property experts is AG Bot’s opinion in UsedSoft, about exhaustion & software. The AG argues in favour of a broad application of the doctrine to software sales (cf. art. 4(2) of Directive 2009/24), but not quite as broad as the plaintiff would have liked. Cf. IPKat Blog.

AG Jääskinen has an opinion in a case that potentially has more issues than a 90-year-old cat lady. Fortunately for everyone, the AG finds the easy one that makes the whole edifice come down: in this case, the government is not acting as an undertaking and is therefore not subject to art. 102 TFEU. Compass-Datenbank GmbH v. Austria (If anyone wants to have a conversation about any of the other points, feel free to stick it in the comments section.)

AG Kokott has an opinion on default judgements and Regulation 44/2001, as well as clarifying some procedural questions about the certificates discussed in art. 54 of that Regulation. On the whole, her opinion favours the power of the court of the State in which enforcement is sought to look at the case some more on public policy grounds before granting enforcement. Trade Agency Ltd. v. Seramico Investments

In asylum law, AG Bot has some bad news for asylum seekers: “where a competent national authority intends to reject an application for subsidiary protection made following rejection of an asylum application, the authority is not required to notify the applicant, before adopting its decision, of the elements on which it intends to base its decision and to seek his observations in that regard.” M v. Minister for Justice, Equality and Law Reform et al.

In what must be a good week for the AG, after software producers and asylum seekers he also disappoints the environmental lobby, siding with the GMO industry against Member States looking to ban all genetically modified organisms always. Pioneer Hi Bred Italia Srl v. Ministero delle Politiche agricole alimentari e forestali

In Manufacturing Support & Procurement Kala Naft Co. v. Council (NL, DE, FR), the latter lost another asset freeze case, courtesy of Judge Pelikánová (of course) in the General Court. The Council was not allowed to freeze assets retroactively, i.e. before the decision is published in the official journal, the Council’s statement of reasons was iffy, the applicant was not given timely access to the case file, the Council’s evidence was occasionally insufficient to prove involvement in nuclear proliferation and the Council’s assessment of the evidence it did have was also flawed. So no, not a good day…

Finally, not in Luxembourg but in The Hague, Charles Taylor was found guilty today of aiding and abetting in 11 counts of Very Bad Things, but not of actually ordering them (i.e. participation through command responsibility). I’m not sure if the appeals chamber will have the power to overrule this finding, or even how much it matters. Prosecutor v. Charles Taylor

Tuesday, April 24, 2012

Advisory Opinions

One of the most interesting ideas that surrounded last week's Brighton Conference was the idea of introducing an advisory opinion procedure in the ECtHR. It appears that the politically correct lawyer position is to be against it - presumably not in the least because it is part of the UK's War on the Court - but personally I don't see the problem.

As usual, I'll take the systematic approach. First, there is the UK Chairmanship's draft declaration:
19. The Conference therefore:
d) Concludes that, to clarify the respective roles of the Court and national judicial systems, the Court should be further enabled to deliver advisory opinions as follows:
i) For those States Parties that opt in, the highest national courts should have discretion to refer a point of interpretation of the Convention to the Court for an advisory opinion in the context of a specific case;
ii) The national court should set out the facts of the case as well as the question of interpretation of the Convention that the case raises and should give its own view on the question referred;
iii) The Court should give its opinion on the point of interpretation raised; leaving it to the national court to apply this to the facts of the case;
iv) Advisory opinions should not be binding; but when applied by the national court the individual in whose case the opinion was sought should ordinarily have no further right to make an application to the Court in the same matter;
23. The Conference therefore:
c) Concludes that Article 35 of the Convention should further be amended to make clear that an application is inadmissible if it is the same in substance as a matter that has been examined by a national court taking into account the rights guaranteed by the Convention, unless the Court considers that:
i) The national court clearly erred in its interpretation of the Convention rights; or
ii) The application raises a serious question affecting the interpretation or application of the Convention;
The Court's reflection paper on this issue was characteristically diplomatic. However, on the whole it did not appear to have any major objections, at least none based on principled concerns. (They did quite reasonably wonder, though, what this would do to their workload.) Disappointingly, the paper does not advocate that the advisory opinions should be binding. However, it does say something noteworthy about the wider effect of such an opinion:
44. Despite the fact that its advisory opinions would not be formally binding on the domestic courts, the Court itself should consider them as valid case-law which it would follow when ruling on potential subsequent individual applications. Despite the fact that advisory opinions would not have the binding character of a judgment in a contentious case, they would thus have “undeniable legal effects”. Even though advisory opinions are also not binding under the procedures before the ICJ and the IACHR, these courts nevertheless draw in practice upon their reasoning in advisory opinions in the same way as upon its caselaw developed in contentious cases. (Footnotes omitted)
On the whole, the reflection paper resists the analogy with the CJEU's prejudicial question procedure.

Now the final outcome of the Brighton Conference:
12. The Conference therefore:
d) Notes that the interaction between the Court and national authorities could be strengthened by the introduction into the Convention of a further power of the Court, which States Parties could optionally accept, to deliver advisory opinions upon request on the interpretation of the Convention in the context of a specific case at domestic level, without prejudice to the non-binding character of the opinions for the other States Parties;
...and that is it.

Now you can see what the States Parties were concerned about. They were worried that they would end up convicted in Strasbourg in cases where they did not appear as a party, but at best as an intervenor. (Cf. par. 40 of the Court's reflection paper.) But surely that shouldn't matter to us, neutral observers?

The Court itself was worried about its workload, but that is a pragmatic and much wider issue that should not affect our analysis of whether advisory opinions would improve the level of human rights protection in Europe.

My friend Max Steinbeis was worried about national judges ignoring these opinions. However, as I pointed out to him, even under the British proposals the advisory opinion procedure would only bar access to the usual individual application procedure to the extent that the national courts follow the Court's opinion. If they don't, then the usual remedy remains open. (Cf. the language from the draft quoted above, par. 19(d)(iv) "when applied by the national court", although the proposed criterion of "clearly erred" is significantly more narrow than that.)

Given the abundance of evidence that the prejudicial question procedure has helped the ECJ promote European Integration, I don't see why the advisory opinion procedure wouldn't do the same for the ECtHR. Ideally, the procedure would be open to all national judges and binding in the case at bar, but I'll take what I can get. That said, I'd be happy to read in the comments why I'm wrong.

Dutch Senate Elections

Courtesy of the Dutch constitutional and administrative law blog Publiekrecht & Politiek, we are confronted with a most fascinating proposal: why not have elections for both Houses of the States-General at the same time?

In order to understand why this is such a revolutionary proposal, we must turn our eye to art. 55 of the Dutch Constitution:
Article 55
The members of the First Chamber shall be chosen by the members of the provincial councils. The election shall take place not more than three months after the election of the members of the provincial councils except in the event of the dissolution of the Chamber.
These provincial parliaments are the descendants of the Estates that held sovereignty in the time of the republic. (Hence: Estates-General, being the gathering of representatives sent by the provincial Estates.) At the time, there were seven of them, now there are twelve. Their seat numbers are as follows:

Groningen: 43
Friesland: 43
Drenthe: 41
Overijssel: 47
Flevoland: 39
Gelderland: 55
Utrecht: 47
Noord-Holland: 55
Zuid-Holland: 55
Zeeland: 39
Noord-Brabant: 55
Limburg: 47

For a total of 566 individuals who are eligible to vote in an election for the Senate.

That is to say, 566 people elect 75 senators, who need about 7½ votes to be elected. In such circumstances, it doesn't really make sense to disband parliament and call a new election, even if there are a few loose cannons that the parties might want to get rid of. That is why such a snap Senate election hasn't been done since 1904. However, in this case there are several special circumstances that make it a tempting idea.

During the last Senate elections in 2011 there was a couple of unfortunate SNAFUs. One D'66 parliamentarian accidentally voted with a pencil of the wrong colour, making his vote invalid. Another D'66 voter voted strategically - in an election like this it can be smart to vote for the "wrong" party - and got his math wrong. Then there was some creative horse trading in Zeeland that probably wouldn't be repeated this time. But most importantly, all over the country provincial MPs of Wilders's PVV have left the party. Since their number is eight, they theoretically add up to an entire Senate seat, assuming they wouldn't still vote for the PVV.

Adding this mess together means that a snap Senate election would probably result in one fewer seat for the PVV, with that seat ending up with Prime-Minister Rutte's VVD if these provincial parliamentarians vote for the logical alternative, or with D'66 if they vote in a less coherent manner. Either way, a Senate seat is transferred from a flank party to the centre. So I say: Let's do it!

Monday, April 23, 2012

Emissions Trading & Airlines (1)

Since I'm spending my day thinking about air transport, I thought I'd spend some time blogging about a topic that is long overdue: the application of the European Emmissions Trading Scheme to airlines. (NB: given that the event is organised under Chatham rules, my conversations with the other forum participants won't come back in this post, at least not with attribution.)

My main obsession with this case is the potential conflict between the ETS as presently constituted and the rule of national sovereignty over airspace. Everything else seems fine, at least legally. Last week, again, I looked at what the Court did with that in the key case here: Air Transport Association of America et al. v. Secretary of State for Energy and Climate Change. It is useful to ask the question that I asked then: did the Court properly explain what they were doing? (I'm doing a bit of writing on the reasoning of European courts.) Let's start with the Advocate-General, Juliane Kokott:
109. However, the case-law of the Courts of the European Union has not given rise to any clear criteria for the determination of whether and to what extent a principle of customary international law can serve as a benchmark against which the validity of EU legislation can be reviewed. It would appear that the Courts of the European Union have not in the past had occasion to undertake such a review of validity; customary international law has, up to now, been called upon only in relation to the interpretation of provisions and principles of EU law. (104)
113. In line with the case-law on international agreements discussed above, (106) I therefore propose that the Court of Justice should not recognise principles of customary international law as a benchmark against which the lawfulness of EU acts can be reviewed unless two conditions are satisfied:
– First, there must exist a principle of customary international law that is binding on the European Union.
– Secondly, the nature and broad logic of that particular principle of customary international law must not preclude such a review of validity; the principle in question must also appear, as regards its content, to be unconditional and sufficiently precise.
b) As to whether the principles of customary international law at issue are suitable as a benchmark against which to review validity in proceedings brought by natural or legal persons
135. The common feature of the three principles of customary international law at issue in Question 1(a) to (c) in the High Court’s request for a preliminary ruling is that they determine the scope of sovereignty of States and limit their jurisdiction.

136. Principles such as these are, by their very nature and broad logic, by no means capable of having an effect on the legal status of individuals. (128) The institutions involved in the present proceedings and the majority of the governments involved have correctly pointed this out.

137. In legal proceedings brought by natural or legal persons, therefore, such principles cannot be relied upon as a benchmark against which the validity of EU acts can be reviewed. (129)
Essentially, she's hiding the ball. Obviously it is not the first time - my personal favourite is the holding in Van Parys saying that WTO infringements, even violations of rulings by dispute settlement boards, are not directly enforceable by individuals because WTO remedies are based on political negotiating - but this one is particularly poorly motivated. The AG makes a big hooplah of evaluating whether the various rules actually exist (that's in the cropped paragraphs 115-134), but the actual key section is little more than ipse dixit. The accompanying footnote 128 refers to par. 84 of AG Jacobs's opinion in Racke. What we find there is actually a lot better:
84 In the light of those principles, there must also be limits to the effect of rules of customary international law relating to treaties. The overall nature and purpose of the law of treaties is to lay down rules applying in the relations between States (and international organisations). The law of treaties is clearly not intended to create rights for individuals. It is true that its application may have the effect of creating such rights, namely in those cases where a domestic legal system accepts that international agreements concluded in conformity with the law of treaties are capable of conferring rights on individuals. However, that is but an indirect effect, by no means intended at the level of international law. It is the provision of the agreement (lawfully concluded) which has direct effect. The overall nature and purpose of the law of treaties would therefore seem not to be conducive to direct effect. (It may be noted in passing that there may be other types of rules of customary international law which do intend to confer rights on individuals, for example rules of international humanitarian law.) 
But then, we already knew that AG Jacobs is one of the greatest AGs ever.

So the AG denies individuals the right to rely on the principle of sovereignty over the national airspace for reasons that are essentially not explained. For treaties you can focus, like AG Jacobs does, on the intentions of the authors of the treaty,  but how do you engage in teleological interpretation with a rule of customary law? The Court has an answer:
110 However, since a principle of customary international law does not have the same degree of precision as a provision of an international agreement, judicial review must necessarily be limited to the question whether, in adopting the act in question, the institutions of the European Union made manifest errors of assessment concerning the conditions for applying those principles (see, to this effect, Racke, paragraph 52).
52 However, because of the complexity of the rules in question and the imprecision of some of the concepts to which they refer, judicial review must necessarily, and in particular in the context of a preliminary reference for an assessment of validity, be limited to the question whether, by adopting the suspending regulation, the Council made manifest errors of assessment concerning the conditions for applying those rules.
Interesting, huh? "We don't know what the law is, so we're going to be modest testing." If you're wondering what that whizzing sound is, that's the sound of Justice Marshall spinning in his grave. Let's say it again: "It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is." More generally, we may refer to art. 4 CC, which is repeated in art. 13 Wet AB in the Netherlands: "Le juge qui refusera de juger, sous prétexte du silence, de l'obscurité ou de l'insuffisance de la loi, pourra être poursuivi comme coupable de déni de justice." So forgive me if I think this solution is unsatisfactory. In that regard, the AG's approach is already better, but I think it is still flawed.

Given that we are told time and again that the EU legal order has "a complete system of legal remedies" (cf. par. 23 of Les Verts), the general rule should be that individuals can rely on all rules of law that are sufficiently precise to be applied to the conflict in question. Situations where individuals are denied the right of access to a rule of international law should very much be the exception. I would limit this to cases where, as in Van Parys, there is a strong policy reason for denying access. If necessary, we could add to this cases where there is clear evidence that the Council, in ratifying the treaty in question, did not intend for individuals to be able to claim under the treaty, i.e. the US approach. When it comes to sovereignty over national airspace, I don't see either argument applying, although I would like to do some more research on the treaty version of that rule: art. 1 of the Chicago Convention, which doesn't apply to the EU directly because the EU is not a party to that treaty. Do the states parties of the Chicago Convention allow individuals to rely on art. 1 in Court?

P.S. This post takes it as given that applying the ETS to an airplane taxiing in San Francisco or flying over the Gobi desert violates the sovereignty of the US and China, respectively. Readers should feel free to explain why I'm wrong on this in the comments. A fellow participant in today's European Air Transport Regulation Forum in Florence offered that it should always be possible to read the possible "justifications" into the rule, allowing exceptions for the purposes of promoting the environment, etc.

Friday, April 20, 2012

Genuine Enjoyment

Last year in March, the European Court of Justice did something very creative in a case called Ruiz Zambrano v. Office national de l’emploi. It said that a father could not be thrown out of the EU because that would interfere with the "genuine enjoyment" by his son of his rights as an EU citizen. This is so because, if the father gets thrown out, the son would have to come along, thus robbing him of his right to participate in the fruits of the common market. Subsequently, there were two more cases, one about a husband and wife, and one where the EU citizens in question are family but not dependants. Now nobody really knows what these cases mean, or whether they will end up causing mayhem with the Member States' immigration policies. But what I've been wondering is whether it is possible to read between the lines by looking at the phrasing of the Court's answer in each case. See if you can guess which of these answers is the most positive for the immigrant (they're in random order):
1.Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States.
2. Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national (...), a right of residence in the Member State of residence and nationality of [his EU citizen spouse or family], and from refusing to grant a work permit to that third country national, in so far as such decisions deprive [that EU citizen or citizens] of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.
3. European Union law and, in particular, its provisions on citizenship of the Union, must be interpreted as meaning that it does not preclude a Member State from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with [his EU citizen spouse or family] who is a citizen of the Union residing in the Member State of which he has nationality, who has never exercised his right to freedom of movement, provided that such refusal does not lead, for the Union [citizen or citizens] concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of [their] status as a citizen of the Union, which is a matter for the referring court to verify.
Well? Who gets to stay? Immigrant 1? Immigrant 2? Immigrant 3? More than one? None of them? (This is also a nice game to play with all your (other) non-lawyer friends, just in case they think being a lawyer is hard. It's not hard, it just requires being able to read.)

Thursday, April 19, 2012

This Week in Luxembourg

The most press-friendly case this week is Bonnier Audio et al. v. Perfect Communication Sweden, where the Court (with Judge Malenovský as rapporteur) sides with the Intellectual Property owners against internet pirates. Earlier precedents include Promusicae (2006, with Malenovský talking about striking an appropriate balance), the order in LSG v. Tele 2 (2007, with Malenovský writing that there is no obligation to create a right like the one at issue in Bonnier Audio) and Scarlet Extended (2011, with Malenovský invoking internet privacy to hold against an anti-piracy filter). For more, in German, see here.
Through the pen of Judge Silva de Lapuerta the Tomra group got shot down in its abuse of dominance appeal. Like the General Court (Judge Ciucă as rapporteur) in 2010, the CJEU upheld the 24 million euro fine imposed by the Commission in 2006. The abuse in question consisted of “exclusivity agreements, agreements containing individualised quantity commitments and agreements establishing individualised retroactive rebate schemes.” (par. 11) Tomra v. Commission
In Wintersteiger v. Products 4U Sondermaschinenbau the Court, per Judge Safjan, holds that under art. 5(3) of Regulation 44/2001 Google AdWords cases can be brought either in the Member State where the trademark is registered or in the Member State where the advertiser is established. The Austrian case also has some “series of tubes”-style murkiness about whether there is still a trademark infringement when you use a different Top-Level Domain, but the Court punts that question back to the national court. For more analysis, see here.

According to the 2nd Chamber (Cunha Rodrigues as rapporteur), there is nothing in Regulation 810/2009 (the Visa Code) that prevents Germany from sticking Mr. Minh Khoa Vo in prison for 4 years and 3 months for visa fraud and people smuggling. I’m not entirely sure that I even understand what the problem was, but small graces, etc. Minh Khoa Vo (DE, FR)

Finally for the specialists, there is a case on the intersection of Regulation 44/2001 and bankruptcy law, where the liquidator of a company assigned a claim held by the company to its only creditor. This assignment may or may not be lawful, and the claim in question may or may not have merit, but before that can be sorted out it is first necessary to establish where exactly this litigation should take place. The Court, per Judge Berger, concludes that Regulation 44/2001 applies, meaning that the Lithuanian judge gets to keep the case. F-Tex v. Lietuvos-Anglijos UAB „Jadecloud-Vilma“ (NL, DE, FR)

In Parliament v. Council, the Council has a pretty epic admissibility argument: Because the Parliament didn’t (attempt to) veto the offending measure in comitology, they are to some extent its co-author and therefore barred from having it annulled. AG Mengozzi doesn’t go for it, though. On substance, the AG also sides with the Parliament: the Council exceeded its powers under art. 12(5) of the Schengen Border Code.

In a second, unrelated Parliament v. Council, AG Mengozzi insists that yes, lex specialis still derogat legi generali. Using art. 337 TFEU as a legal basis is not acceptable if art. 194 TFEU is also available. So, according to the AG, Council Regulation 617/2010 concerning the notification to the Commission of investment projects in energy infrastructure should have been adopted under the Ordinary Legislative Procedure based on art. 194 TFEU instead.

AG Bot concluded that “the concept of denied boarding [as defined in art. 2(j) of Regulation 261/2004] includes not only the case of overbooking but also other grounds, such as operational reasons”, which doesn’t strike me as a huge leap. It gets more interesting when he considers what to do with the interplay of the facts of the case (a strike) and the exceptions of art. 2(j), art. 4(3) (denied boarding) and art. 5(3) (cancellation). Finnair v. Timy Lassooy For more, see here.

AG Jääskinen has an opinion that should be studied in Introduction to Law classes everywhere. Firstly, it concerns the glorious curiosum of a “negative Feststellungsklage”, whereby under § 256 ZPO a possible tortfeasor can sue the potential victim asking the court to say that no liability exists. Secondly, the AG carefully sorts through all the different methods of interpretation – textual, teleological and systematic – in order to ascertain whether such a suit falls under art. 5(3) of the Brussels I Regulation. He concludes that it doesn’t. Folien Fischer and Fofitec v. Ritrama (NL, DE, FR)

In asylum law, AG Bot proposes a generous interpretation of the relevant law in a case of Pakistani religious prosecution. Germany v. Y and Z (NL, DE, FR)

AG Mazák had surprisingly little difficulty in concluding that Austria acted in violation of EU law by refusing to allow Slovenian casinos to advertise in Austria on the grounds that Slovenia doesn’t have a level of protection for gamblers that is equivalent to the protection provided in Austria. The AG argues that, if Austria wants to do something along these lines, they should make the permit dependent on the protection offered by the casino instead. HIT and HIT LARIX v. Bundesminister für Finanzen

While the case of Križan et al. v. Slovenská inšpekcia životného prostredia (NL, DE, FR) concerns my beloved Aarhus convention, as well as a boatload of less interesting environmental law, my main reason for noticing it is the question that was raised about the relationship between the Slovakian Constitutional Court and the Supreme Court in the context of the obligation to ask a prejudicial question. AG Kokott sticks to the post-Elchinov line: all things supreme have to always ask a prejudicial question always, no matter what the other supreme guys have said earlier in the litigation.

Wednesday, April 18, 2012

Specialisation in Luxembourg

For the benefit of a quick bit of legal writing I've been asked to do, I looked into specialisation in the EU court system. Do the same judges always appear as rapporteur for the same kinds of cases? This seems like the kind of thing that someone should have studied already, but no example springs to mind. So I just Eur-Lexed all cases that cite Kadi and tallied up the rapporteurs.

In the General Court, there were 17 cases in total, including the original Yusuf and Kadi cases themselves. The oldest 8 of those all have one person in common: Judge Nicholas Forwood. (The oldest 5 don't say who the rapporteur was, but Judge Forwood was on the panel for all of them.) Subsequently, he acted as rapporteur 3 more times for a grand total of 11 out of 17. The current go-to Judge seems to be Judge Irena Pelikánová, who authored the two most recent judgements in Fulmen and HTTS, as well as the two Bank Melli cases back when she was still in the 2nd Chamber. The two remaining judgements are by Judge Soldevila Fragoso (with Judge Pelikánová as Chamber President) and Judge Dittrich, whose judgement in Tay Za was recently overturned on appeal by the Grand Chamber.

...Which brings us to the ECJ. They had 6 cases that cite Kadi. The oldest 3, including Kadi itself, were authored by Judge Timmermans. (The cases even followed him to different Chambers: Hassan and Ayadi was in the 2nd Chamber and M & ors in the 4th.) The most recent 2, Tay Za and PMOI, were by Judge Cunha Rodrigues, with the missing one, the Grand Chamber judgement in Bank Melli, being by Judge Rosas.

Counting them all together gives us 23 judgements by 7 different Judges, with both the General Court and the ECJ showing a tendency to give the Judge who wrote the original judgement the subsequent cases on the same topic as well. This is why in my weekly summaries of Luxembourg case law I try to at least mention the Chamber that gave the judgement (there is usually no space for the name of the Judge Rapporteur), but I wonder whether anyone has every studied this question more systematically.

UPDATE 1: Another tally: out of 13 post-Lisbon competition cases before the ECJ, 5 were handled by Judge Juhász.

UPDATE 2: Another suitably specialised topic is the free movement of Turkish workers. I counted 54 cases before the ECJ over the last 25 years or so. Absolute winner: Luxembourgish Judge Romain Schintgen, who was rapporteur in no fewer than  24 of them during his tenure from 1996-2008. Also pretty good: Judge Cunha Rodrigues (8), Judge Kasel (6, also from Luxembourg), Judge Lindh (4) and the Judge who was the first specialist in this area, Judge Schockweiler (2-5, also from Luxembourg). Together, these five Judges are good for 44-47 of the 54 cases in the sample. Luxembourg alone accounts for 32-33 out of 54, but I'm sure that's a coincidence.

(For Judge Schockweiler it isn't entirely clear in how many cases he acted as rapporteur. Before the early 1990s, ECJ judgements don't specify who the rapporteur was. In that period, however, there are three Grand Chamber cases where Schockweiler was a member, so he probably authored at least some of those judgements.)

UPDATE 3: This week's This Week in Luxembourg has another example: 4 cases on internet piracy all by Judge Malenovský.

Srebrenica vs. UN (3)

In an interesting post on NJBlog, The Hague (and therefore: Supreme Court) attorney Guido Den Dekker criticises the Supreme Court's judgement on a few points. (See here, in Dutch.) He preferred the Court of Appeal's approach to Waite and Kennedy v Germany; Beer and Regan v Germany (see my first post on this case). He agrees with the Court on the ius cogens issue, though, arguing that the substantive question of the seriousness of the alleged crime should be separated from the process question of immunity. I would respectfully argue that this might be true in a perfect world, but is hardly always true in actual legal practice. Moreover, I would submit that process and substance can be separated quite easily, and exactly in the way that I suggested in my earlier post. Let me bullet-point it out step by step, for everyone's convenience:
  • If the plaintiff's complaint alleges - in so many words - a violation of ius cogens, the immunity of the international organisation is off the table. The allegation alone is enough.
  • Once immunity is off the table, the defendant will have to make an appearance. If they do, they can fight the chase in the usual way, if they do not, a default judgement will be entered, at least insofar as the ius cogens claims are concerned.
  • Under Dutch law, a default judgement requires some sua sponte examination of the case by the court. Under art. 139 of the Code of Civil Procedure, a default judgement cannot be entered if the claim "appears" to the court to be "unlawful or unfounded". In cases against international organisations, the flip-side of point 1 above is that this test should have real substance: In the Srebrenica case, the plaintiffs talked about ius cogens a lot, but - taking all of the plaintiff's factual allegations as true - they did not legally amount to an actual claim of a violation of ius cogens. This should lead either to the UN's immunity being upheld, or to the request for a default judgement being denied.
This seems like a reasonably tidy way of setting it up, and it does a reasonable job of keeping substance and immunity separate without going so far as to giving the UN a pass for actual cases of genocide or - more likely -  torture. 

Tuesday, April 17, 2012

Piris (3): Should We Be Scared?

One of the facts that M. Piris took as his starting point last week was the proposition that it is time to act boldly because we are faced with a Very Big Problem. The Eurocrisis, he argued, was a problem for the European Union as such, well beyond its immediate monetary implications. Yesterday, I argued that we are not actually showing any signs of being at Monetary DEFCON 1. Today I will challenge M. Piris's assumption that the Eurocrisis is a significant threat to the European Union as a whole.

I should start with that word "significant", which I added for a reason. Discussions of the legitimacy of the EU tend to rely heavily on output-legitimacy, and any Euro-induced economic crisis is therefore going to hurt the legitimacy of the EU, and with it its ability to function. This is trivially true: Any EU-level screw-up is a threat to the EU. When Italians mess around with EU money, that's a threat to the EU. When the External Action Service seems unable to launch any actual External Action, that's a threat to the EU. However, none of these things are a "significant threat", since none of them will actually cause the whole edifice to come down. The EU will continue to exist despite all scandals, despite the often conspicuous lack of evidence of actual competence, because ultimately it has enough legitimacy to survive.

The source of that legitimacy is not the EU's output, of which its citizens know quite little, but rather the Member States. EU legitimacy is borrowed; as long as the Member States say it is OK, it is OK. No amount of incompetence or crisis is going to change that. Instead of the EU being in any way threatened, the worst-case scenario is a "lost decade", a period of muddling through similar to the period of the Luxembourg Compromise. It is interesting to consider that Eurocrats - even otherwise realistic ones like Piris - consider such a thing to amount to a failure of the EU, when in fact it is the very opposite: it is the EU-actors working through their differences within the framework of the Treaties, even if their solutions are occasionally a bit creative.

If the Euro fails with a big bang, the political cost of supporting the EU rises. The Member States will still lend their legitimacy to the Union, but at a much higher domestic price. As a result, they will have to get tougher on Brussels, which in turn will mean that less will get done. But less getting done is not a failure of the Union. The quality of the functioning of the Union should not be measured by the number of pages it adds to the Acquis Communautaire every year. If the Euro fails, no new Constitutions for Europe will be proposed for a decade or two. The French will continue to keep foreign Ski Instructors out. Fidesz will stay in power in Hungary until the turn of the century. Nobody will ever find out what exactly the EU position on Kosovo is. So what? All of these things are bad, but none of them constitute a threat to the EU. There are many reasons to worry about the Eurocrisis, but concern for the future of the EU is not one of them.

Just like the leaders of the European Member States show no signs of being well and truly scared of the future of the Eurocrisis, they show no signs of considering all the options in the area of their relations with the EU. Until people start talking about unilaterally leaving the EU, there is nothing to worry about. And not even the Greeks want to do that.

Monday, April 16, 2012

Janowiec and Others v. Russia

As far as I can tell from a quick first skim, the ECtHR's judgement in Janowiec and Others v. Russia is one of those cases like Soering v. UK, where the Court reached the morally right result by cheating. In this case, the Court wanted to do something for the victims of the Katyn massacre, but were unable to do so because the Convention does not work retroactively. So they found a way of doing what would normally be done under the procedural prong of art. 2 ECHR by another means. Specifically, they applied art. 38:
The Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all necessary facilities.
Much to my surprise, Hudoc still has 500 or so cases that refer to this article, but I'd be highly surprised if any of them were even remotely as politically sensitive as this one.

As icing on the cake, some of the applicants also get a straight-up Soering: the way they were treated by the Russian government rose to the level of a violation of art. 3 ECHR, the ban on inhumane treatment. On that one, I'm afraid I'm going to have to agree with the joint partly dissenting opinion of judges Jungwiert and Kovler: that's just rubbish. (They put it more politely, but still.)

Piris (2): Are We Scared Yet?

Given that Piris was proposing some pretty serious reforms, one of the political scientists in the audience asked a question that is interesting in oh so many ways: Are we (sufficiently) scared yet? (Please forgive the Scream reference. For someone of my age, it is quite simply unavoidable.)

As my political scientist colleague explained, a large reform requires a powerful motivating factor, and a nice big crisis will certainly do the trick. You should never let a good crisis go to waste. And no matter how much he denied it, that also seemed to be the tenor of M. Piris's presentation: we've got a big crisis on our hands, so let's see what we can do with it. But that raises the question: are we there yet? Are we sufficiently panicked to carry out whatever reforms are necessary to save the EU?

Personally, I doubt it. In most European countries, I see very little evidence of politicians risking anything substantive for the greater good. In the PIIGS countries, sure. In two of them, political elites have already appointed technocratic prime ministers, while in Ireland and Spain the incumbent governments committed political suicide. But those are not the countries that will have to carry any proposed reform. In places like Germany, France and the UK, as well as in the smaller relatively health Member States like Belgium, Finland and Austria, things develop based on their own internal electoral logic. The Belgians favour more Europeanisation for the same reasons that they always have, the Finns are responding to the rise of the True Finns, Cameron has to be seen as being tough on Europe without actually being tough on Europe, in France even the conservatives are socialists, and Mrs. Merkel can't be seen willingly spending money or being soft on inflation. And so we're all doomed.

Conclusion: outside the PIIGS countries no one is prepared to do whatever it takes to solve the Eurocrisis. If Merkel was properly scared, she'd bite the bullet on the one thing that scares her even more than spending hundreds of billions of euros: inflation. Germany needs higher inflation. The Eurozone needs higher inflation. The ECB needs an inflation target of 3-4%, and Germany needs to aim for the top of that range. The only way to restore the balance between the centre and the periphery in our lifetimes is to increase inflation in the centre. PIIGS deflation is not going to do it. Inflation in Germany is the only way to make PIIGS-austerity not completely self-defeating. And yet Merkel cannot do it, won't do it, because the German's aren't scared yet. At this point in time, if Merkel proposed more inflation - or any ECB policy change that would result in more inflation - her voters would have her taken out back and shot.

In France, too, it's business as usual. Both the Socialists and the Sarkozists are lying through their teeth, as usual, explaining to their voters that the whole crisis is the fault of all that horrible Anglo-Saxon neo-liberalism, and that France will escape the crisis unhurt. Sarkozy is standing by the ESM - of course - and Hollande is saying he will renegotiate it without saying how. Beyond that, no one is talking about a structural solution because, in true French style, they don't even dare admit that there is a problem. So no, they're not scared yet.

As for the UK, which is the opposite of France in that in Britain even the socialists are conservative, they're too busy congratulating themselves with having had the "wisdom" to stay out of the Euro - as if rational deliberation had anything to do with that decision - to pay attention to their interest in pushing for a structural solution. In the meantime, they too are solving the problem of austerity-induced budget deficits with more austerity. So no, they're not scared yet, at least not about the right things.

The Dutch are scared about Muslims and Polish, the Flemish are worried about Walloons, the Walloons are worried about the Flemish, the Scottish are trying to figure out whether they want to be independent, the Lithuanians are arguing with the Polish, the Hungarians are arguing with everybody, and nobody shows any real signs of being worried about anything. Or, to be precise, they're worried, but not about themselves. They're worried about others. They're trying to save the Greeks and the other PIIGS, but no one realises they're also trying to save themselves. And until they do, no real reform proposal will ever go anywhere.

Friday, April 13, 2012

Rawagedeh (IIa)

It turns out that, for now, all the legal creativity with regards to limitations periods that the Court in The Hague applied in the civil suit over Rawagedeh still has its limits. At least in the world of criminal law, the rule of law is still upheld. Today, the Public Prosecutor in Arnhem decided to throw out all Rawagedeh-related cases on the grounds that the limitations period was well and truly over.

On the remote chance that anyone is wondering why the Prosecutor in Arnhem has anything to do with this case, the answer is that under art. 3 of the Act on Military Criminal Procedure ("Wet Militaire Strafrechtspraak"), the Court in Arnhem has exclusive jurisdiction over all prosecutions under the Code of Military Criminal Law. Given that the crimes alleged here were committed by Dutch military personnel outside the territory of the Kingdom in Europe, the case ended up in Arnhem.

Cf. here for my write-up of the limitations periods shenanigans in the civil case last September.

Srebrenica vs. UN (2)

In my previous post about the Dutch Supreme Court's ruling on the lawsuit of the Mothers of Srebrenica against the United Nations, I deliberately skipped over the whole ius cogens thing. As I noted, that is "a different story". It's also a lot of fun. And it is an area where I actually disagree with the Court. Here's why:

When we left things in the previous post, the Supreme Court had just decided that the Court of Appeals had been in error by examining whether the UN system allowed for sufficient alternative methods for obtaining relief. Rather than applying the ESA cases of Beer and Regan v. Germany (1999) and Waite and Kennedy v. Germany (1999), the lower court should have applied Behrami and Behrami v. France (1999). There is no right to a fair trial when suing the United Nations for peacekeeper action or inaction. Ever.

To get past that problem, the plaintiffs argued - essentially - that this rule does not extend to cases where a violation of ius cogens is alleged. To refute this proposition, the Supreme Court cites two precedents. On the one hand, there's the ECtHR case of Al-Adsani v. UK (2001), and on the other hand there is the recent ICJ ruling in Germany v. Italy (Jurisdictional Immunities of the State). Both courts found, probably correctly, that there is currently no rule of customary international law that prevents states from claiming immunity in cases dealing with violations of ius cogens.

Assuming that this is correct - and I wouldn't dare assume otherwise - why does this govern a case against the United Nations? In par. 4.3.14 the Supreme Court offers nothing more than ipse dixit. I would think, however, that this makes all the difference. After all, the original source of the concept of ius cogens is art. 53 of the Vienna Convention on the Law of Treaties (1969):
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
Now this provision does not as such apply to the UN Charter, because the Vienna Convention is not retroactive (cf. art. 4). However, it does strongly suggest that there is a difference between applying a rule of ius cogens to a treaty and applying it to any other kind of legal dispute. In the cases cited above, Kuwait and Germany were invoking a rule of customary international law to avoid liability for an alleged violation of ius cogens. In the Srebrenica litigation, the UN is invoking a provision of a treaty, specifically art. 105 Charter.

If the sequence were reversed, i.e. if the Vienna Convention were older than the UN Charter, the overall applicability of the former to the latter would by fairly headache-inducing, but at least the rule of art. 53 would probably be considered unproblematic. Back in our reality, the law of ius cogens seems to apply quite straightforwardly - through a bit of CIL magic - to pre-1980 treaties. That is certainly true for the ban on genocide, with its venerable Nuremberg pedigree. Even if this is not the case, it would behove the Dutch Supreme Court to explain why not. They shouldn't have simply stopped after discussing ius cogens and state immunity. Those two are very much not the same thing. Just because par in parem non habet jurisdictionem, doesn't mean a state entity like a court can't go after the UN.

Of course, none of that would have ultimately saved the plaintiffs' case. After all, they were not claiming that the UN committed genocide or torture. As I understand it, they're just claiming that the UN were negligent in preventing the genocide. When it comes to any ius cogens exception to art. 105 Charter, the difference between committing genocide and negligently allowing someone else to is big enough to drive a tank through. So in my opinion, the Supreme Court should have held (or referred back to the Court of Appeals so that they could hold) that there is a narrow exception for ius cogens violations, but that no such violation was alleged here.

Srebrenica vs. UN (1)

Back in July, I complained about a decision by the Court of Appeals in The Hague which allowed the Mothers of Srebrenica to sue the Dutch state for certain torts in relation to the Srebrenica genocide. While that case is still pending, the Supreme Court has now upheld the parallel ruling against the United Nations, confirming that, indeed, the UN cannot be sued in Dutch court. The text of the judgement is here, in Dutch. According to the Court the obligation pursuant to the UN Charter trumps the obligation pursuant to the European Convention for Human Rights. Note that we might usefully contrast this with the approach taken by the ECJ in Yusuf and Kadi.

So hang on, what is going on here? We have three treaties:
  • The UN Charter says that the UN has immunity. It also says that obligations pursuant to the Charter trump the obligations UN members have pursuant to any other international agreement.
  • The European Convention on Human Rights says that individuals have a right to a fair trial and a right to property, which is violated by freezing their assets without hearing them, explaining the decision, etc. It is also arguably violated by preventing certain cases from being brought to trial in the first place.
  • The EU Treaties say that Member States' international obligations that pre-date the Treaties continue to be in force. (Although the are kindly invited to make any inconsistencies go away with all deliberate speed.)
When talking about the immunity of the UN in a case about Bosnians getting killed when they shouldn't have been, the Dutch say the UN Charter trumps the ECHR. In so holding, the Dutch Court relies on two judgements of the European Court for Human Rights: Beer and Regan v. Germany (1999) and Waite and Kennedy v. Germany (1999). From the latter case, the Dutch Hoge Raad quotes the following:
"59. The Court recalls that the right of access to the courts secured by Article 6 § 1 of the Convention is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention's requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship between the means employed and the aim sought to be achieved (...).
67. The Court is of the opinion that where States establish international organisations in order to pursue or strengthen their cooperation in certain fields of activities, and where they attribute to these organisations certain competences and accord them immunities, there may be implications as to the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention, however, if the Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution. It should be recalled that the Convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective. This is particularly true for the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial (...).
68. For the Court, a material factor in determining whether granting ESA immunity from German jurisdiction is permissible under the Convention is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention.
69. The ESA Convention, together with its Annex I, expressly provides for various modes of settlement of private-law disputes, in staff matters as well as in other litigation (...)."
The Court of Appeals drew the logical conclusion from this language and examined whether such an alternative mode of settlement existed. (And found that there were sufficient alternatives.) The Supreme Court, however, concludes that this was in error by relying on some other ECtHR language, this time a case dealing specifically with the UN, notwithstanding the apparent clash between this case law and the previous. 
"146. The question arises in the present case whether the Court is competent ratione personae to review the acts of the respondent States carried out on behalf of the UN, and, more generally, as to the relationship between the Convention and the UN acting under Chapter VII of its Charter.
147. (...) More generally, it is further recalled, as noted in paragraph 122 above, that the Convention has to be interpreted in the light of any relevant rules and principles of international law applicable in relations between its Contracting Parties. The Court has therefore had regard to two complementary provisions of the Charter, Articles 25 and 103, as interpreted by the International Court of Justice (see paragraph 27 above).
148. Of even greater significance is the imperative nature of the principle aim of the UN and, consequently, of the powers accorded to the UNSC under Chapter VII to fulfil that aim. (...) The responsibility of the UNSC in this respect is unique and has evolved as a counterpart to the prohibition, now customary international law, on the unilateral use of force (see paragraph 18-20 above).
149. In the present case, Chapter VII allowed the UNSC to adopt coercive measures in reaction to an identified conflict considered to threaten peace, namely UNSC Resolution 1244 establishing UNMIK and KFOR. Since operations established by UNSC Resolutions under Chapter VII of the UN Charter are fundamental to the mission of the UN to secure international peace and security and since they rely for their effectiveness on support from member states, the Convention cannot be interpreted in a manner which would subject the acts and omissions of Contracting Parties which are covered by UNSC Resolutions and occur prior to or in the course of such missions, to the scrutiny of the Court. To do so would be to interfere with the fulfilment of the UN's key mission in this field including, as argued by certain parties, with the effective conduct of its operations. It would also be tantamount to imposing conditions on the implementation of a UNSC Resolution which were not provided for in the text of the Resolution itself. (...)"
(Behrami v. France (1999), admissibility decision)

While this case is distinguishable from the Yusuf and Kadi litigation, it strongly suggests that a UNSC Resolution is not reviewable against the ordinary standards of the ECHR, which is the reading that I have advocated all along. (The Dutch Supreme Court ruling continues by considering the ius cogens angle, but that is a different story.)

So if the ECtHR is so hesitant about claiming jurisdiction over UNSC Resolutions, why wasn't the ECJ? The answer? Because they said so.

Thursday, April 12, 2012

Piris (1)

And here is the full 1½ hour Youtube clip of Piris speaking at the European University Institute in Florence yesterday. My comments will follow over the next few days.

A Two-Tier Commission?

Listening to the provocative (I guess that's the polite word) presentation of my former "God", Jean-Claude Piris, in Florence yesterday, I was reminded of a reform proposal of my own that I've never really gotten around to examining. So while I will write more about M. Piris's ideas in the next few days, once the footage of his presentation is available on-line, for now I will ask myself: Is it possible to create a two-tier Commission without changing the Treaties?

Firstly: What do I mean by a two-tier Commission? What I mean is a Commission that, in some respects, continues to function as it does today, with one Commissioner for every Member State, voting together as a College of Commissioners. M. Piris reminded us again, today, that in the Barroso Commission (or, if one puts the cause elsewhere, the post-enlargement Commission), the College never votes. It decides everything by consensus. However, that is irrelevant for my question. I have no interest in changing the voting rights of any Commissioner, and no interest in changing their voting practice, at least not for present purposes.

Instead, I would like to change the way the Commission works outside the meeting of the College. As it is, there are too many Commissioners for them to effectively distribute the available portfolios amongst themselves. As a result, too many Commissioners end up sharing responsibility for various areas. Commissioners end up arguing and Directorates-General play their mommies and daddies off against each other until the Directors-General become the real Kings of the EU bureaucracy. A particularly urgent example of this at the moment is the in-fighting between the various Commissioners whose portfolios touch on foreign policy, where no one is willing to give an inch in order to allow Baroness Ashton to craft an effective EU foreign policy.

In the Member States, such a situation would never be permitted to occur. At the national level, the executive branch tends to be run by fewer people who oversee a wider range of policy. (There are ministers for everything the EU does, plus one for every area of public policy the EU doesn't do.) The exact number of ministers tends to very based on the size of the country and the complexity of its party system, but my sense is that very few go near the 27 bosses enjoyed by the EU. (Quick look around: NL has 12, BE: 13, UK: 23, FR: 23, IT: 17, DE: 16, PO: 20, ES: 14.) Instead, the (core) cabinet consists of fewer individuals, and their control over the civil service operates through junior ministers, ministers without portfolio (there are five of those among the 17 members of cabinet in Italy, incidentally), secretaries of state, etc. So why not create such as system for the European Commission?

Imagine a Commission composed of a President and six Vice-Presidents, which is how many there are now. Upon assigning the portfolios, the President could identify six main areas of Commission competence, and assign one to each of his Vice-Presidents. Let's have a go:
  • Foreign Policy
  • Internal Market
  • Agriculture, Fisheries and Food
  • Justice and Citizens' Rights
  • Regional and Local Development, and Transport
  • Economic Policy

This leaves a number of smaller portfolios, but those could be assigned to the President directly. The result would be a core College that manages all Commission policy. Each could then be assigned 2-4 junior Commissioners, who could be put in charge of specific policy areas. Baroness Ashton, for example, would be in charge of foreign policy, and she would be in charge of Commissioners Piebalgs (development), De Gucht (trade), Georgieva (International Cooperation, Humanitarian Aid and Crisis Response) and Füle (enlargement and neighbourhood policy). Likewise, people like Commissioner Šefčovič (Inter-Institutional Relations and Administration), Šemeta (Taxation and Customs Union, Audit and Anti-Fraud), and Lewandowski (budget) would answer directly to the President. The authority of the Vice-Presidents would extend only to the management of the DGs and the decisions taken by Commissioners in their individual capacity. It would emphatically not affect the equality of all Commissioners in the College.

So can it be done? Let's see what the Treaties say:
Art. 17(6) TEU:
The President of the Commission shall:
(b) decide on the internal organisation of the Commission, ensuring that it acts consistently, efficiently and as a collegiate body
Art. 248 TFEU:
Without prejudice to Article 18(4) of the Treaty on European Union, the responsibilities incumbent upon the Commission shall be structured and allocated among its members by its President, in accordance with Article 17(6) of that Treaty. The President may reshuffle the allocation of those responsibilities during the Commission’s term of office. The Members of the Commission shall carry out the duties devolved upon them by the President under his authority.
And that is it. The next level of law is the Commission's Rules of Procedure, which clearly does contain provisions that would have to be amended in order to create a Two-Tier Commission. However, that can be done by simple Commission decision. That is to say: legally easy, politically still quite tricky, but not as tricky as overhauling the Treaties.

So this is my modest proposal. Is anyone with me?

Tuesday, April 10, 2012


It appears the Netherlands suddenly has a strange post-colonial problem. In our glorious former colony of Suriname, which we once traded (quite profitably) for New York, parliament passed an amnesty bill shielding the perpetrators of the 1980 coup d'état and the 1982 December killings, including the current president and convicted (in the Netherlands) drug dealer Dési Bouterse, from further prosecution. Understandably, the Dutch government does not think this is a very good idea, and they've recalled their ambassador for consultations

Now this puts the Dutch in a bit of a bind. Unless they can get the international community to join them in doing something substantive, they are completely powerless. For the Netherlands, Suriname is not Belarus; eventually that ambassador has to go back. For the Dutch, diplomatic relations with Suriname are not optional, at least not as long as there are more Surinamese living in the Netherlands than in Suriname. At least it appears that almost all of the € 1,65 billion in White Liberal Guilt money* that was promised when Suriname became independent has now been spent. (About € 6,5 million remains for this year and next year.) Still, the Netherlands cannot and should not allow itself to be put in a position where it cannot tell the Surinamese to take a long walk off a short plank.

With that money gone, it appears to me that the remaining difficulty is rhetorical as much as anything. Not even our current VVD/CDA/PVV government likes to be referred to as a bunch of neo-colonial white people. It seems to me that the government should never allow itself to become a hostage, rhetorical or otherwise. Just like we don't negotiate with terrorists (at least not openly), we shouldn't negotiate with a rhetorical gun to our heads. Treat Suriname exactly the same as every other small South-American country, except maybe for work visas. Tell them they can have their ambassador back when they get rid of Bouterse. Tell them the 100% drug checks stay. And then: brace for impact.

* Just to emphasise how ridiculously high that sum is: at the time of independence, in 1975, there were about 365.000 people in Suriname, making for a going away present of € 4520 per person. Even today, that is barely less than a year's worth of GDP per capita.

Monday, April 09, 2012

Florence Hartmann

Ina Vukic, in her screeds against Carl Bild's visit to Sarajevo, reminds me that I haven't blogged yet about the Florence Hartmann case. (Although I have expressed my opinion on Opinio Juris in the past.) Normally I wouldn't write about a case that is quite clearly dead, but since my opinion seems to deviate somewhat from the conventional wisdom, I thought I'd briefly sum it up.

Florence Hartmann published a book that contained confidential information that she had access to in her capacity as a spokesperson for Carla Del Ponti, the former prosecutor of the International Criminal Tribunal for Former Yugoslavia. There seems to be no one suggesting that this was not against the rules.

(In 2009, I made the point by referring to art. 287 EC: “The members of the institutions of the Community, the members of committees, and the officials and other servants of the Community shall be required, even after their duties have ceased, not to disclose information o fthe kind covered by the obligation of professional secrecy", as well as to the confidentiality agreement I had to sign when I did my stage at the Council.)

The only shadow of a defence seems to be that the information in question "was the subject of many press reports and public debates after the International Court of Justice delivered its judgment in February 2007 in the case of Bosnia and Herzegovina versus Serbia on charges of genocide", which according to the Humanitarian Law Centre raised the question why Ms. Hartmann was singled out. The answer, of course, is that she was the only person writing about this story who actually worked for the Tribunal, and was therefore subject to its confidentiality rules. Whether the information was already in the public domain or not is irrelevant. As long as it remains sealed by the Tribunal, the Tribunal's staff and former staff cannot reveal it.

The only real question is why the ICTY thinks it has the power to impose a criminal penalty for contempt. I think it is plausible that the power to punish contempt is part of the Tribunal's "inherent powers", just like its competence to examine its own jurisdiction in Tadic. However, as John Dehn commented last November, that does not necessarily mean that such contempt has to be criminal.

The French, in the meantime, have told the ICTY where to shove it. Presumably, their claim that their agreement with the Tribunal does not cover non-serious crimes reflects a policy preference not to cooperate. If they had wanted to help, they would have.

My take is that the Tribunal were right to go after her. She knew her obligations, and some kind of punishment was certainly in order. International tribunals need to keep their own house in order, just like other international organisations. Given that the information in question was mostly already in the public domain, the appropriate punishment was always going to be a modest one, and the € 7.000/7 days in jail she got sound right.

It would have behoved the French to appreciate this, and to assess the fine against her the same way they would for any other foreign fine that comes from a country that they have a mutual enforcement agreement with. I'm sure they could have done so if they had wished, given the cooperation agreement aforementioned. Now poor Florence is stuck in France, worried that if she travels abroad she will be arrested and sent to The Hague, which seems like a much more unfortunate outcome for all involved. Ms. Hartmann can't very well back down and pay the fine, given all her hooplah about free press, etc., but if the French government had simply enforced the fine against her, the whole thing would have been over with years ago. As it is, the ICTY will have to keep trying to get her, and Ms. Hartmann will be stuck in France until the Tribunal closes for business on 31 December 2014.