Monday, May 28, 2012

Vatican Courts

The Worden Report asks an excellent question about the Vati-leaks case: What exactly are we meant to think about a criminal trial in Vatican courts concerning a crime where the Pope himself is both the victim and the sole ruler of the country?

While I have very little to add to dr. Worden's general analysis, it did lead me to discover an interesting point of ECtHR law: It turns out that there is at least one precedent for the fairness of Vatican court proceedings being tested in Strasbourg. In the 2001 case of Pellegrini v. Italy, the Court held that Italy had violated art. 6 by enforcing a Vatican ruling without properly examining the fairness of the Vatican proceedings. The case concerned the annulment of a marriage for reasons of consanguinity, where the applicant (and respondent in the original Ecclesiastical Court case) had not been given adequate opportunity to speak and had not been given sufficient opportunity to seek legal advice and to be represented by counsel.

It will be interesting to see how this works out for Mr. Gabriele. Presumably he will be represented by counsel, etc., so the Pellegrini case won't be directly on point, but if he is found guilty and sentenced to a prison term, that term will have to be served in an Italian prison, which again puts Italy in the position of being asked to enforce a Vatican court ruling. We may predict that this criminal trial will not have any glaring omissions like in the Pellegrini case. Instead, the Italian courts and, perhaps, the ECtHR will have to confront the general questions raised in the Worden blog post:
This raises the question of whether Gabriele could even in principle get a fair hearing, given the conflict of interest in an official under the Pope judging a case in which his butler betrayed him by leaking even some of the Pope’s internal letters. The religious and political stature of the Pope in the Vatican suggests that it would be difficult to find any Vatican official able to judge such a case of betrayal in a neutral fashion. Furthermore, that the leaked documents point to cronyism and corruption in Vatican contracts raises the possibility that corruption had also reached the Vatican’s court system.
(He then mentions something about the EU and the ECJ, which is an unfortunate lapse in an otherwise excellent post.)

Can a Vatican trial ever meet the standards of art. 6 ECHR? And does it matter? After all, neither Vatican City nor the Holy See is a party to the Convention, and as such they are not required to obey its dictates. In normal cases of extraterritoriality, including the art. 6 case of Othman last January, the bar tends to be set much lower, and the European court is only asked to examine whether certain fundamental principles haven't been violated. (In Othman, the British were asked to make sure that the applicant would not be prosecuted in Jordan using evidence obtained through torture.) However, in those cases the ECHR comes in because of a possible extradition. Here, the prisoner would travel in the opposite direction.

Pellegrini seems to set the hurdle at the ordinary intra-European hight:
40. The Court notes at the outset that the applicant’s marriage was annulled by a decision of the Vatican courts which was declared enforceable by the Italian courts. The Vatican has not ratified the Convention and, furthermore, the application was lodged against Italy. The Court’s task therefore consists not in examining whether the proceedings before the ecclesiastical courts complied with Article 6 of the Convention, but whether the Italian courts, before authorising enforcement of the decision annulling the marriage, duly satisfied themselves that the relevant proceedings fulfilled the guarantees of Article 6. A review of that kind is required where a decision in respect of which enforcement is requested emanates from the courts of a country which does not apply the Convention. Such a review is especially necessary where the implications of a declaration of enforceability are of capital importance for the parties.
Regardless of how unequivocal this sounds, I doubt that this rule would be applied in full force in a possible criminal case against Mr. Gabriele. After all, on its face this would mean that Italy could never enforce any criminal sentence imposed by a Vatican court, and certainly not one that involved a crime against the Vatican authorities themselves. And I doubt that either the Italian courts or the ECtHR would want to go that far. Instead, I suspect that - regardless of any rhetorical flourishes - the ultimate standard will be much more pragmatic: Are the flaws of the Vatican proceedings such as to cast doubt on the fundamental fairness of the case or the guilt of the defendant? Applying that standard, I think the Italians would end up enforcing Mr. Gabriele's sentence. That is, assuming he is given one.

Lagarde on Greece

There’s nothing like a bit of unexpected truth to get people upset. Christine Lagarde said this:
[W]hile this might come as a surprise to Greeks suffering under extreme austerity, some say Lagarde’s approach to the eurozone is less draconian than the IMF’s traditional policy towards developing world economies. Is it easier to impose harsh demands upon small economies, but much harder to tell difficult truths to the big ones – particularly fellow Europeans? “No,” she says firmly. “No, it’s not harder. No. Because it’s the mission of the fund, and it’s my job to say the truth, whoever it is across the table. And I tell you something: it’s sometimes harder to tell the government of low-income countries, where people live on $3,000, $4,000 or $5,000 per capita per year, to actually strengthen the budget and reduce the deficit. Because I know what it means in terms of welfare programmes and support for the poor. It has much bigger ramifications.”
So when she studies the Greek balance sheet and demands measures she knows may mean women won’t have access to a midwife when they give birth, and patients won’t get life-saving drugs, and the elderly will die alone for lack of care – does she block all of that out and just look at the sums?
“No, I think more of the little kids from a school in a little village in Niger who get teaching two hours a day, sharing one chair for three of them, and who are very keen to get an education. I have them in my mind all the time. Because I think they need even more help than the people in Athens.” She breaks off for a pointedly meaningful pause, before leaning forward.
“Do you know what? As far as Athens is concerned, I also think about all those people who are trying to escape tax all the time. All these people in Greece who are trying to escape tax.”
Even more than she thinks about all those now struggling to survive without jobs or public services? “I think of them equally. And I think they should also help themselves collectively.” How? “By all paying their tax. Yeah.”
It sounds as if she’s essentially saying to the Greeks and others in Europe, you’ve had a nice time and now it’s payback time.
“That’s right.” She nods calmly. “Yeah.”
And what about their children, who can’t conceivably be held responsible? “Well, hey, parents are responsible, right? So parents have to pay their tax.”
…and got in trouble.
But for the life of me I can’t tell why. What exactly did she say that is so wrong? Is she supposed to pity Greeks with a GDP per capita of € 17.500 (give or take, no one really knows) more than, say, the people of Niger (GDP per capita of $ 800 on PPP basis)? As far as I’m concerned, the only reason why any IMF money at all should go to Greece is because it has important knock-on effects on the world economy, and therefore gives them more bang for their buck than money sent to Niger.
As for taxes, the Greeks wouldn’t even pay their property taxes when they were bundled in with the energy bill:
The cunning scheme to get Greeks to pay property taxes by bundling them with electricity bills didn’t last long. You guessed it, people stopped paying their electricity bills and now it looks like the power company – which had to be bailed out last month – has stopped even trying to collect the levy.
Likewise, they can’t be bothered to actually privatise anything. Courtesy of Tony Barber on Gideon Rachman’s FT blog:
Costas Mitropoulos, chief executive of the Hellenic Republic Asset Development Fund, otherwise known as Greece’s privatisation agency, is the most eloquent advocate of selling off state property I have ever met. Once he actually starts doing it, he will be an unchallenged master of his craft.
The long and the short of it is that Lagarde was right, just like Boutros-Ghali was right to point out that the Bosnian war was much less devastating than any of a dozen other crises that were going on in the world at the time. This is exactly what I was talking about in my Grexit post: Much as this crisis was not caused by Greek laziness in any real way, that doesn’t change the fact that there’s something rotten in the state of Greece. Plague on all their houses until they realise that.

Saturday, May 26, 2012

This Week in Luxembourg

This week’s Grand Chamber case is about “imperative grounds of public security” as a justification for kicking out a long term resident under art. 28(3) of the Free Movement Directive. Compared to AG Bot’s opinion, the Court’s opinion (Judge Cunha Rodrigues) leaves the Member States a lot more freedom to define the concept. The Grand Chamber does remind the Germans, though, that expulsion has to be based on concerns for the future. It is not a punishment for past offences. P.I. v. Oberbürgermeisterin der Stadt Remscheid Cf. European Law Blog

The appeal in Commission v. Verhuizingen Coppens looks like it is all sorts of fun. Not only did the original Commission decision (FR) involve a theory of a single continuous infringement of art. 81 EC based on three distinct agreements, two of which the applicant did not even know about, but on appeal the Court is asked to decide whether the General Court was right to annul the decision in its entirety, instead of partially. AG Kokott suggests overruling the General Court and annulling only partially, setting the fine at € 35.900 instead of € 104.000. So technically this is a win for the Commission…

In public tendering law, an Italian university hospital was granted a contract to examine the earthquake-proofness of various hospitals. Question: should this have been tendered competitively under Directive 2004/18? According to AG Trstenjak, it should have been, given taht the hospital was capable of acting as an economic operator in this instance. Azienda Sanitaria Locale di Lecce v. Ordine degli Ingegneri della Provincia di Lecce et al. (NL, DE, FR)

An Austrian court was confused by Pammer and Alpenhof about the meaning of art. 15(c) of Regulation 44/2001. However, AG Cruz Villalon had no difficulty concluding that that article applied to normal, non-distance consumer contracts as well. Mühlleitner v. Yusufi & Yusufi (NL, DE, FR) In other International Private Law news, AG Jääskinen has an opinion on the international taking of evidence in Lippens et al. v. Kortekaas et al., while AG Mengozzi applies Regulation 44/2001 to an (ex-)employee of a 3rd country embassy in Mahamdia v. Algeria

In a case concerning the Privileges and Immunities of the EU Institutions, AG Jääskinen concludes that Germany may extend certain social welfare benefits to employees of the ECB, unless the Conditions of employment of the staff of the European Central Bank already cover the benefit in question. Hessen v. Feyerbacher

In the General Court, the Commission lost two access to documents cases, both of them brought by (potential) litigants. Internationaler Hilfsfonds v. Commission and EnBW Energie Baden-Württemberg v. Commission

The General Court (Judge Prek) upheld the Commission’s art. 81 decision against Mastercard. Unusually, there was no fine, just a penalty payment in case of non-compliance.  Mastercard v. Commission

Tuesday, May 15, 2012

This Week in Luxembourg

I’m not entirely sure why people seem so surprised that AG Bot proposed that the CJEU should follow its Sturgeon precedent when it comes to damages for delays in air travel, but he did. Nelson et al. v. Lufthansa and Q. (on the application of TUI Travel et al.) v. CAA Cf. the Recent Developments in EU Consumer Law blog, and the Financial Times.

AG Bot also recommended that the Court should hold against the Netherlands in another immigration case. In his view, the Dutch were a little too enthusiastic in trying to avoid giving a man who was already a lawful resident for 5 years and 8 moths a long-term resident’s residence permit. (They claimed that the applicant, whose residence permit was based on his job as a spiritual advisor, was “formally limited” in the sense of art. 3(2)(e) of Directive 2003/109, which doesn’t strike me as the most realistic argument ever made in Luxembourg.) Staatssecretaris van Justitie v. Singh

AG Mazák has an opinion on IMS Health (=patents vs. competition law) to the nth degree: Abuse of dominance combined with marketing authorisations for medicinal products. He recommends that the GC judgement should be upheld, meaning that the bulk of the Commission’s decision will probably survive review. AstraZeneca v. Commission

AG Mengozzi also has a fun one: Does a device need a CE Mark of conformity under Directive 93/42 if it is capable of being used for medical purposes but not intended by its manufacturer for such purposes? The AG proposes that the Court should rely on the manufacturer’s intentions. Like AG Jääskinen in Folien Fischer last month, the AG summons a whole list of different methods of interpretation in support of his position. Brain Products GmbH v. BioSemi VOF

AG Sharpston suggests that Italy is not allowed to exempt legal persons from the rules on the entitlement of victims of crime to compensation under art. 9(1) of Framework Decision 2001/220. Procura della Repubblica v. Giovanardi et al. (NB. The underlying case concerns a railway accident in Florence in 2008.)

Just when I was starting to wonder what was going to happen to the Ruiz Zambrano case law (cf. my recent post here), AG Trstenjak has another go. Fortunately for her, the case is an easy one: the father is Japanese, the mother and the daughter are German. The mother and daughter moved to Austria, and the father wants to stay in Germany. I think the AG is correct in concluding that that one won’t work. Iida v. Stadt Ulm

Last week, the Dutch won and lost an interesting public procurement case on sustainability. Requiring a specific label (EKO or “Max Havelaar”) was – understandably – too narrow to avoid being discriminatory, but sustainability as such does have a place in public procurement under Directive 2004/18. Commission v. Netherlands Cf. Laurens Ankersmit on Europeanlawblog, who also has a point about the difference between technical specifications and performance conditions that I don’t think I agree with. 


Being an econo-lawyer super-monster creature thing, I feel a sustained moral obligation to have an opinion about Greece's potential exit from the Euro. The only problem is, I don't really have one. Part of the reason for that is that I am actually a pretty decent economist. (Even if I do say so myself.) In that capacity, I once added the following proposition to my Ph.D. thesis:
 6. An economic truth consists of a proposition that is deducted by sound logic “from simple assumptions reflecting very elementary facts of general experience.” Cf. Robbins (1932), p. 104. Whether such a proposition is useful is an entirely different matter.
or, in the main text:
 Because of the complexity of human society, the social sciences always provide many different explanations for the relationship between any two variables. While many of these hypotheses might be true [meaning, here, that they are correctly deducted from Robbins' "simple assumptions"], even when they contradict each other, inevitably some will have greater explanatory power than others.
Thinking about economics as a vast web of competing theories, each true but with varying explanatory power, is obviously not the best way to end up with clear, decisive conclusions. That is not always a problem; sometimes eliminating the faulty and the weak propositions is enough to arrive a at a clear conclusion (see: my posts on austerity here, here, here, here and here). But in the case of Greece & the Euro, there are just too many unknowns and too many variables. To begin with, the arguments I've made about austerity in general - and in the Netherlands in particular - absolutely positively with bells on do not apply to Greece. They simply have no alternative to DEFCON 1 levels of austerity. That is true not because the EU says so, but because the capital markets say so. (And, within the capital markets, it's not the evil ratings agencies, but the actual bond traders. There is actually very little evidence that sovereign bond downgrades - as opposed to corporate bond downgrades - have had a significant effect on interest rates during this crisis.) The next concentric circle of reasoning encompasses not just Greece, but also the other PIGS (one I, because Ireland is not included). Sustained competitiveness differential between the core and the southern periphery = sustained current account deficit for the latter = sustained borrowing by the latter (or, theoretically, other forms of FDI, but that is hardly going to cover the entire CA deficit). Combine that with: single currency ≠ rebalancing through devaluation, and you arrive at a serious problem. This is the wider Eurozone crisis, and it needs to be fixed somehow, not just for the benefit of Greece, but for the sake of the entire Eurozone. Analytically, there are two solutions:
  1. The Eurozone can be broken up, with the periphery countries leaving (or having their own common currency). This SEURO can then be periodically devalued relative to the NEURO, thus preventing a scenario where Germany owns every piece of Portugal, Spain, Italy and Greece, up to and including the Azores and some chunks of Cyprus.
  2. Instead of lending or investing their current account surplus, the core countries can simply give that money away. The problem is, of course, that we're talking serious money here. Greece alone had a 2011 Current Account deficit of € 21 bn, and adding Spain (€ 37,7 bn), Portugal (€ 11 bn) and Italy (€ 50,3 bn) to that adds up to a total hypothetical bill of € 120 bn which needs to be covered somehow. In an intact and healthy Eurozone, part of the solution would be a realistic interest rate for all things PIGS, which would have the effect of making it harder for these countries to import (or to spend full stop), because of increased financing costs. But at the end of the day, a large portion of that sum would have to be covered through pure transfers, and there aren't enough Greeks working abroad to do that through private sector remittances alone. Either through the tax bill or through the inflation tax (i.e. central bank printing press), the public sector will have to make up the difference. In the long term, the only way out of this is an inflation target that is higher than 2% and (politically) sustainable for all EU countries. Having an average inflation rate of 2% is not very interesting if the spread around that mean is too high. It is better for Europe to have a slightly higher rate if that is what it takes to reduce the inflation differential within the Eurozone.
However, as noted, all of this is about the Eurocrisis in general, not about Greece in particular. Rephrasing these points to concern Greece alone:
  1. A Greece-only SEURO is not a SEURO but a Drachme. And such a currency would not be devalued, because it would be quite capable of plummeting without central bank help. Which brings us to major uncertainty no. 1: Plummet by how much?
  2. Greece has zero bargaining power vis-à-vis Germany and the other core countries to push for a permanent annual gift or for a higher inflation target. Both are absolute no-go's for Germany. The best they can hope for is to hang on by their fingernails until the crisis subsides through economic growth elsewhere. More German tourists on Greek beaches = Greek economic recovery. Major uncertainty no. 2: How much longer until the EU average GDP growth is back at pre-crisis levels? And major uncertainty no. 3: What will be left of Greece when it is?
Technically, Greece does have one bargaining chip: When they go down, so do any number of core country banks. The problem is that no one really seems to know how many, or how badly. Which is major uncertainty no. 4: How heavily are German and other core country banks invested in Greek debt? We know, by the magic of arethmetic, that that debt has to be held somewhere outside Greece, but by whom? And how well is it hedged, when viewed in the aggregate? (Bank A holding € 100 bn in Greek debt and € 100 bn in Greek CDS doesn't do the country as a whole much good if those CDS contracts are simply held by a few other big banks.) And so the only thing that is certain is the law of the thing. As a lawyer, I can assure everyone without doubt or reservation that it is impossible to throw Greece out of the Euro without its consent. It cannot be done. No way José. Only a Treaty amendment duly ratified in Athens and in the 26 other EU capitals will do the trick. However, given recent precedent, getting 27 ratifications shouldn't be too difficult as long as everyone is properly motivated. The economic conclusion is that Greece is damned if they do and damned if they don't, but the exact extent to which they will be damned in each case is impossible to predict with any great amount of confidence. (Which hasn't stopped some people, but OK.) My preference - if I were a Greek politician or citizen - would be to stay, but only because this is a once in a lifetime opportunity for Greece to get rid of all the rotten apples at once. Even here in Italy the crisis has given us Sunday shopping, and in Greece it might even go so far as to allow people to start an on-line olive business without giving a stool sample. Greece urgently needs to fire half its civil service, get people to actually pay their taxes, repeal 2/3rds of their pointless regulations, etc. Staying will give the politicians the political cover to do all that, the only problem is that they're having a little difficulty getting re-elected at the moment. (As an aside, unlike many talking heads, I'm not saying that these reforms will help Greece survive the current crisis. On the contrary, in the short term they will only make things worse. Instead, I'm saying that Greece needs them on ethical grounds and - more pragmatically - because they will bear fruit in 10-20 years.) Were I a German politician, I would be inclined to rip off the band-aid, to get it over with. Putting it off only makes it worse. Throw them out as soon as you are confident you can get those 27 ratifications, cauterise the wound, and move on. There is no dispute that Greece should never have been let into the Euro, so good riddance to them. Just get it over with. (Here, the objective argument for what is essentially a character preference is that the uncertainty is deadly for economic growth everywhere. Kicking Greece out will reduce uncertainty, once the waves have settled.) So there you have it. Should Greece leave the Euro? That depends on who you ask. Where you stand depends on where you sit. (And if you happen to be François Hollande, you will kick the Greeks out too, because a) you can't afford to displease the Germans over something that doesn't matter to France directly - France's exposure to Greek debt is by all accounts extremely low - and b) France doesn't have the kind of money it would take to put up their share of any further major bailout, that is to say: it has the money but a Socialist President would rather spend that money on French croissance rather than Greek bailouts.)

Thursday, May 10, 2012

Karremans & Srebrenica

While the purpetrators of the 1947 war crimes in Rawagadeh are still not going to be prosecuted, the commander of the Dutch peacekeepers in Srebrenica may not be so lucky. The public prosecutor's office announced yesterday that its "reflection chamber", which apparently exists to give advice about politically and morally tricky cases, had recommended that col. (ret) Thom Karremans should be prosecuted for his role in the genocide.

The reason why this is interesting is exactly the opposite of the reason why we care about the civil litigation about Srebrenica. (See most recently my posts Srebrenica v. UN part 1, part 2 and part 3, and last year Mustafic part 1 and part 2.) Those civil cases are trivially easy once you get past the legal technicalities: Assuming a Dutch court has jurisdiction over the case and over the defendant, and assuming the acts in question can be attributed to the defendant, the rest is easy-peasy. In tort law, the threshold for guilt is much lower, and there is little question that the UN and the Dutch government fell short in Srebrenica. (If evidence is what it takes, I think the Dutch government has a report or two lying around somewhere.)

The criminal case, on the other hand, is trivially easy when it comes to legal technicalities. Of course the Dutch prosecutor can prosecute Dutch military officers if he considers it opportune to do so. The fact that the officer in question was serving as part of a UN peacekeeping mission is irrelevant. The problem is, however, what to charge him with. The complaint, in 2010, referred to the charges of genocide and war crimes, but, come on, please... Mens rea, anyone? It is patently absurd to say that Karremans and the other officers had the necessary intent to conspire - or to aid and abet - in the commission of genocide or war crimes. In the civil case, the defendants are charged with various versions of negligently causing death. However, as noted, that is one heck of an easier sell than the criminal offence of negligent homicide. I am not familiar with the details of the evidence, but it is my distinct recollection that Karremans personally was not blamed to any great extent for the outcome in Srebrenica. It is certainly not his fault that he was asked to stop the entire Bosnian-Serb army with two guys and six bullets.

So let's be generous, find him guilty of negligent homicide (maximum sentence: 2 years), and send him home with 6 months suspended. Personally, I don't think it is very classy to kick a guy when he's down, but as I am wont to say: lex dura, sed lex.

Wednesday, May 09, 2012

European Oratory

It is my habit, each Europe Day, to go back to what Robert Schuman actually said 62 years ago. I find it is one of the few pieces of true oratory in recent European history, as well as oddly prescient about the subsequent development of the Union:

World peace cannot be safeguarded without the making of creative efforts proportionate to the dangers which threaten it. The contribution which an organized and living Europe can bring to civilization is indispensable to the maintenance of peaceful relations. In taking upon herself for more than 20 years the role of champion of a united Europe, France has always had as her essential aim the service of peace. A united Europe was not achieved and we had war.

Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity. The coming together of the nations of Europe requires the elimination of the age-old opposition of France and Germany. Any action taken must in the first place concern these two countries. With this aim in view, the French Government proposes that action be taken immediately on one limited but decisive point.

It proposes that Franco-German production of coal and steel as a whole be placed under a common High Authority, within the framework of an organization open to the participation of the other countries of Europe.  The pooling of coal and steel production should immediately provide for the setting up of common foundations for economic development as a first step in the federation of Europe, and will change the destinies of those regions which have long been devoted to the manufacture of munitions of war, of which they have been the most constant victims.

The solidarity in production thus established will make it plain that any war between France and Germany becomes not merely unthinkable, but materially impossible. The setting up of this powerful productive unit, open to all countries willing to take part and bound ultimately to provide all the member countries with the basic elements of industrial production on the same terms, will lay a true foundation for their economic unification. (...)

(I apologise for quoting the English translation. Since this blog is in English, it seemed like a good idea. The French original is here.)

Both the shadow of the war and protestant puritanism make such oratory a rarity in many parts of Europe. Most politicians I am familiar with couldn't find a passionate plea like this with two hands and a flash light. (Cf. my post on 10 Words from March.) Like flag waiving and hands to hearts, such speeching is something we leave to our American cousins, and even they are not as good at it as they think they are. (Am I seriously the only one who thinks that listening to Obama speak is like some kind of Buddhist meditation exercise - excruciatingly dull? The man pauses for a minute between every two sentences, and sometimes even after commas.)

That said, maybe someone, somewhere should give a speech on the occasion of Europe Day. It seems like a pretty fitting occasion. After all, it is the task of politicians to help voters make sense of the reality that surrounds them, rather than simply frightening the beejeezus out of them. Through any and all methods of communication, regardless of whether there is an election campaign going on, politicians should explain to voters what they are doing, defend their choices, offer a framework for understanding, etc. On Europe Day, the topic for such argument should be Europe. What do we have instead, in Europe-related news? The PVV in the Dutch province that receives more EU money than any other objects to having the EU flag flown outside the provincial parliamentthe British are having second thoughts about bailing out the Eurozone, and a whole laundry list of ordinary EU news.

Tuesday, May 08, 2012

GroenLinks comes out against Democracy

This is the first post that is cross-posted from my new IdeasOnEurope blog. For the time being, everything I write there will be cross-posted here, but not necessarily vice versa. Probably I'll end up taking the title literally and using the new blog only for EU-related blogging.

Yesterday I tweeted this story to Sophie in ‘t Veld MEP, who belongs to GL’s centre-left rivals D66, but she didn’t seem interested in exploiting it for electoral gain, so I guess I’m going to have to do it myself.
As it turns out, GroenLinks, the Dutch Green Party, thinks it is a good thing that the EU is not very democratic, because that makes it easier for them to resist populist pressure. Lot van Hooijdonk, the chairwoman of the GroenLinks in Europe foundation, lists all of the great things GroenLinks would like to do for people that they never seem to get around to in The Hague because they’re too busy responding to populist pressure. Hail the European Parliament! There, at least, such benevolence is possible because there is no need to “polarise and popularise in front of the cameras”. With friends like that, who needs enemies.
Traditionally, there are three ways for Europhiles to tackle the problem of the democratic deficit. There is my way, which argues that the problem is not as severe as commonly claimed, because the Council provides a strong channel of democratic accountability even if the Parliament does not. Then there is the Andrew Moravcsik way, which argues that the EU isn’t all that powerful, and that its democracy is strong enough for the level of authority it has. And finally, there is the Simon Hix answer, which grants the premise and suggests various solutions.
But this is new. This author grants the premise and quite deliberately does not offer any solutions. Of course, there is a long history of people arguing that democracy is great only in moderation. I myself have had fun in the past repeating some arguments from John Stuart Mill’s Considerations on Representative Government. (I had quite a bit of trouble getting my American interlocutors to agree that the act of voting is not an act of self-determination, but rather an exercise of power over one’s fellow citizens as well as over oneself. I would have thought that that much at least would be obvious.) However, at least in the post-War era all authors that I am aware of have been careful to keep such speculation away from any actual practical application.
There is only one exception that I can think of: Both GroenLinks and Ms. In ‘t Veld’s D66 are in favour of referendums. I am very much against. I argue for that position using the familiar “let’s not have too much democracy” arguments. Specifically: “Never underestimate the stupidity of people in large masses.” (If more nuance is called for, I bring in rational ignorance.) However, that is a far cry from “parliaments should be less transparent so that they can be more benevolent without those annoying voters getting in the way”. That one truly left me puzzled.

Saturday, May 05, 2012

WW II Memorial Day

Sometimes it becomes blatantly apparent that having a civil law style "one size fits all" system of tort law has its down sides. While in common law countries there are as many torts as there are crimes, meaning that the plaintiff has to explain why his case has all the elements required by at least one of them, in continental Europe we have statutes like this:
Tout fait quelconque de l'homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé à le réparer. ("Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it.")
That is art. 1382 Code Civil, but similar rules exist in most other European countries. In the Netherlands, this rule is in art. 6:162 BW. The advantage of such a catch-all rule is that it makes the law more flexible. The disadvantage of such a rule is, however, also that it makes the law more flexible.

A particularly dramatic example of the latter comes from mr. G. Vrieze, Judge of the District Court in Zutphen, yesterday. Now, before I continue, I should point out that this ruling was in an expedited procedure, which means that the Judge only had a day or two to think about this. Still, I think we can all agree (well almost all), that there is no excuse for this SNAFU:

In a spectacular act of bleeding-heart liberalism, the organising committee of this years World War II memorial day in Vorden had decided that this year the German soldiers should be remembered as well. They proposed, therefore, that the annual procession should pass by their graves as well as by the graves of the Dutch and allied soldiers. While I sympathise with the sentiment, this was probably a misguided idea. Enter FJN, Federatief Joods Nederland, a Jewish advocacy group, who sued the city. The legal basis of their suit was never entirely made clear, beyond the fact that they were relying on art. 6:162 BW.

Which brings us back to mr. Vrieze. Yesterday, he ruled that the city was not allowed to send representatives to the memorial procession, that the city (not the organising committee!) had to explicitly inform those present that they had the option of leaving before the procession would reach the German graves, and that they had to warn the participants when they were about to reach the German graves. And apparently we should thank everything that is holy that the Judge did not see fit (to order the city) to ban the memorial outright (cf. par. 4.3).  Apparently that would be a disproportionate infringement in the participants' freedom of speech and assembly. (The Judge does not seem to have noticed that neither the participants nor the organising committee was an actual party in the dispute before him.)

As for the things the Judge did order, his explanation (par. 4.5-4.8) ran a staggering 438 words, none of which referred to any actual case law or any kind of articulated standard by which the Judge purported to judge the plaintiff's petition. Instead, there was some hand waiving about hurt feelings, and that was that.

So yes, we're all doomed, although it helps to hear the praise for the speech given today by the President of Germany in Breda on the occasion of World War II Victory Day, the first time ever that they let a representative of the German government do that:

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Goede Bedoelingen

Hoewel het erop lijkt dat Europese Hof voor de rechten van de mens het Britse voorzitterschap van de Raad van Europa wel zal overleven, hebben de Britten wel een punt, qua kwaliteit van de Europese rechtspraak. Zowel in Straatsburg als in Luxemburg houd je soms je hart vast. Je ziet de rechtsvraag en meteen staat je voor ogen hoe een welwillende rechter die vraag zou kunnen gebruiken om de wereld naar eigen inzicht te herscheppen.

In Janowiec t. Rusland, de zaak over het gebrekkige Russische onderzoek naar de massamoord in Katyn in 1940, omzeilde het EHRM het probleem van jurisdictie ratione temporis onder art. 2 door er een inbreuk op art. 3 van te maken. Het Hof van Justitie van de EU vond in Ruiz Zambrano (2011) een manier om niet-EU burgers op het paspoort van hun familieleden te laten meeliften, maar leek zich in latere zaken met dat precedent niet goed raad te weten. (Vgl. Dereci.)

Maar zorgen over kwaliteit in de zin van “geen verassingen” blijken niet altijd gegrond. Hoe de Napolitaanse afval-puinhoop in januari opeens een schending van art. 8 opleverde zou ik met de beste wil van de wereld niet na kunnen vertellen, maar tegelijkertijd paste het Hof ervoor om vanaf de stoel van de rechter een Common-Law Marriage in te voeren in Van der Heijden t. Nederland. Een recht op incest haalde het eveneens niet (Stübing t. Duitsland). En vorige maand mochten mededingingsprocedures nog even zo blijven zoals ze zijn (Bouygues Telecom t. Frankrijk). Het Hof in Luxemburg doet het voorlopig nog rustig aan met zijn nieuwe Handvest van Grondrechten. Verzoekers die hun toevlucht namen in deze nieuwe manier om anderszins hopeloze zaken te redden kregen tot nu toe meestal nul op rekest. (Vgl. G. t. De Visser, 15 maart.)

Tegelijkertijd bouwen beide Hoven gestaag verder aan hun jurisprudentie. Het HvJEU plaatste weer een steentje op zijn AdWords bouwwerk (Wintersteiger), terwijl de extraterritoriale werking van het EVRM nog steeds verder groeit; ze omvat nu niet alleen art. 2 en 3, maar ook art. 6 EVRM. (Vgl. Othman t. VK, 17 januari.) De merites van individuele zaken daargelaten is zo’n lijn van jurisprudentie heel iets anders dan de eerdergenoemde “verassingen”. Je kunt zulk judge-made law activisme noemen, maar gebrekkige kwaliteit is het niet. Zelfs onder het EVRM kan de rechter immers door de lidstaten worden teruggefloten, als ze tenminste unaniem zijn. Een realistischere manier om een al te enthousiaste ontwikkeling van de rechtspraak terug te snoeien is via het Hof zelf. Zo zie je zo nu en dan dat een Kamer die te goeder trouw de precedenten toepaste toch door de Grote Kamer wordt verrast. (Vgl. Boulois t. Luxemburg, over het recht op toegang tot de rechter en het verschil tussen een “privilege” en een “recht”.)

De vraag is dus hoe we een zo goed mogelijke voedingsbodem kunnen creëren voor een kwalitatief hoogstaande jurisprudentie op EU- en EHRM-niveau zonder dat we voor al te veel verassingen komen te staan. Het voor de hand liggende antwoord is natuurlijk het aanmoedigen van de regels van de common law, en dan met name stare decisis. Maar dat is geen oplossing, want stare decisis is vooral een kwestie van onafdwingbare cultuur, tenminste als het gaat om rechters zonder beroepsmogelijkheid.

Een andere oplossing is specialisatie. Het is interessant om te zien dat het HvJEU de neiging heeft om voor bepaalde soorten zaken steeds dezelfde rechter als rapporteur te benoemen. Voor de Tsjechische rechter Malenovský was Bonnier Audio de achtste zaak over internetpiraterij, en voor zijn pensioen in 2008 was de Luxemburger Schintgen maar liefst 24 keer verantwoordelijk voor een zaak over de rechten van Turkse werknemers. Helaas maakt het EHRM niet bekend wie de rapporteur was voor elke zaak, dus kunnen we op dit punt geen vergelijking maken.

Dan is er nog de kwestie van motivering, dat is ook kwaliteit. Ipse dixit is uit den boze. Als de Hoge Raad vindt dat de uitspraak van het IGH in Duitsland t. Italië (3 februari) onverminderd van toepassing is op de VN, dan zou het mooi zijn als ze zouden vertellen waarom ze dat vinden. (Vgl. Moeders van Srebrenica t. VN, 13 april.) Dan weten de lagere rechters ook wat er moet gebeuren als bij voorbeeld de NAVO of de EU in het beklaagdenbankje zit wegens een schending van ius cogens. Een veel gemaakt bezwaar tegen de eerdergenoemde Stübing uitspraak is dat het EHRM de toverstaf van de “margin of appreciation” gebruikte als alternatief voor juridische analyse, in plaats van als onderwerp van analyse. Omdat het HvJEU geen dissenting opinions toelaat, zien haar uitspraken er nog wel eens uit als een kameel: een paard dat door een commissie is ontworpen. In zo’n geval is het moeilijk voor een toekomstige andere rechter om op dat precedent voort te bouwen. Daar staat tegenover dat uitspraken van het HvJEU van tevoren worden “toegelicht” door een Advocaat-Generaal, die het geheel weer tot een dromedaris terugbrengt.

Een probleem dat vaak over het hoofd wordt gezien is de vraag hoe het daarna met die dromedaris verder gaat. Toen het beroep van de Britse Jordaniër Othman op de extraterritoriale werking van art. 6 EVRM in januari werd toegewezen zal hij niet hebben vermoed dat hij drie maanden later zelf in hoger beroep zou gaan. Toch bleek dat in april de enige realistische manier te zijn om tegen een hernieuwde uitleveringspoging in het geweer te komen. In de bovengenoemde Dereci- zaak kreeg de Oostenrijkse rechter zijn prejudiciële vraag per kerende post weer terug: de Grote Kamer kwam in 18 pagina’s niet verder dan dat de verwijzende rechter het maar moest uitzoeken. Grofweg zijn dit de twee manieren waarop de Europese rechter machteloos is: Soms krijgt hij niet wat hij wil omdat de nationale oppositie gewoon te sterk is, en soms krijgt hij niet wat hij wil omdat het precedent zo onduidelijk is dat hij zelf niet eens weet wat het betekent.

Voor dat laatste hadden de Britten in Brighton trouwens een oplossing: Als de nationale hoogste rechter niet weet wat het EHRM van hem wil, laat hem dan direct de hulp van het Hof inroepen. Ze hadden weliswaar een niet-bindend advies voorgesteld, maar goed, als de rechter dat advies niet navolgt weet de verliezer de weg naar Straatsburg heus wel te vinden. (Het voorstel was om een gewone procedure na een advies niet toe te staan, behalve als de nationale rechter een duidelijke fout had gemaakt.) In de uiteindelijke slotverklaring is het idee nog wel terug te vinden (par. 12(d)), maar zijn de concrete voorstellen van het Britse voorzitterschap verdwenen.

De rode draad in al deze kwaliteitsproblemen is overmatig enthousiasme. In het Engels: the road to hell is paved with good intentions. (Of ook wel: Hard cases make bad law.) Als je te hard probeert het in deze ene zaak goed te doen, creëer je “verassingen”. Als je te enthousiast probeert het grote project EU of EVRM te dienen, ren je te ver voor de troepen uit. En als je probeert dergelijk enthousiasme recht te breien, krijg je onbegrijpelijke uitspraken vol non sequiturs en ipse dixits. Met andere woorden, kwaliteit vergt desinteresse.

This article originally appeared in the April 2012 issue of the monthly newsletter published by the Gerechtscoördinator Europees Recht en Mensenrechten ("Court coordinator on European law and human rights law") of the Court of Appeals in Amsterdam. It is republished here with permission.

Friday, May 04, 2012

This Week in Luxembourg

This week’s Grand Chamber case concerns software copyrights. The Court (per Judge Arestis) holds that it is not an infringement of copyright to duplicate the functionality of a programme. Moreover, once you’ve legally obtained a licensed copy of a programme you’re entitled to study how it works in order to help you write a competing programme. SAS Institute v. World Programming Cf.

In Migrationsverket v. Kastrati the 4th Chamber (per Judge Bay Larsen) does some asylum procedure: What happens with the Dublin II Regulation 343/2003 when an asylum application is withdrawn? The Court holds that in that case the Regulation is no longer applicable, meaning that in this case the Swedes are stuck with these Kosovars, without having the option of shipping them to France.

Comap (FR) and Legris (FR) lost their cartel appeals in the 3rd chamber (Judge Juhász). It didn’t help that big parts of their cases were declared inadmissible.

Under art. 4(2)(b) of Regulation 733/2002, only undertakings established in the EU can register a .eu top-level domain. The American company Walsh Optical tried to get around that by granting what we might describe as a “straw-license”, i.e. a license for the express and sole purpose of allowing the licensee to register a .eu TLD for AG Trstenjak now argues that such a license does not suffice to establish a “prior right” in the sense of art. 12(2) of Commission Regulation 874/2004. Pie Optiek v. Bureau Gevers (NL, DE, FR) Cf. IPKat

In access to documents law, there is a (partial) win for one of my favourite MEPs, Sophie in ‘t Veld. She wanted to see the opinion of the Council Legal Service on SWIFT, which the Council refused claiming that it would hurt ongoing negotiations (i.e. international relations) and legal advice. The General Court (Judge Vadapalas) had little patience for the legal advice argument, but allowed the Council to reconsider on the international relations argument, instructing them to be quite narrow in their interpretation. So parts of the opinion will stay confidential. In ‘t Veld v. Council

Tuesday, May 01, 2012

Subsidiarity: Letter of Rights

To celebrate my 300th post, I've decided to add a new category to my blog, one devoted entirely to particularly egregious cases of subsidiarity violations by the European legislator. While I am a passionate Europhile, that doesn't go to the point that I think the EU should be in charge of everything. On the contrary, I think a religious observance of the principle of subsidiarity is essential to the Union's long-run legitimacy and, more generally, an excellent idea from a political economy point of view: healthy democracy requires both vertical and horizontal balance of powers.

My inaugural target is the European Letter of Rights that has just been adopted by Parliament & Council. The idea is to create a pan-European Miranda warning, in writing. Pursuant to the principle of audi et alteram partem, let's start with the Commission's explanation:
The objective of the proposal cannot be sufficiently achieved by Member States alone, since there is still significant variance in the precise way and timing of the provision of information which leads to divergence of standards across the EU. As the aim of the proposal is to promote mutual trust[;] only action taken by the EU will allow setting consistent common minimum standards that apply throughout the whole of the European Union. The proposal will approximate Member States' substantive procedural rules in respect of the transmission of information about rights and about the charge to persons suspected or accused of having committed a criminal offence in order to build mutual trust. The proposal therefore complies with the subsidiarity principle. (Emphasis mine.)
I think we can all agree that this is complete nonsense. After all, "setting consistent minimum standards", isn't that what we have the European Convention on Human Rights for? Last time I checked, all EU Member States have to be a party to it, and soon the EU itself will be, too. If the ECtHR says that art. 6 ECHR requires a right of access to an attorney, that's what EU citizens get. And if and when the Court in Strasbourg recognises a right to a written Miranda warning, that's what EU citizens will get as well. Should the Member States of the EU feel that the ECtHR is being to lax in this area, they are free to propose an amendment to the Convention. I fail to see how any of this requires action on the part of the EU.

That said, is there any evidence of a lack of trust? Specifically, do we know of any widespread reluctance in Member State A to honour European Arrest Warrants coming from Member State B for reasons of concerns about the latter's protection of art. 6 rights? After all, even though it is not mentioned in the section quoted above, that is the background of the proposal. I'm not aware of any such concern, but I'm open to being proved wrong. Absent such evidence, I think there's no question that this proposal should never have been adopted.