Tag Archives: EU law

European Union (Withdrawal) Bill: Paving the way towards a very uncertain future

By Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School).

The stated aim of the, then Great, Repeal Bill was to provide clarity and certainty for citizens and businesses, and to ensure a functioning statute book on exit from the EU. The key statement of principle in the White Paper was as follows: ‘In order to achieve a stable and smooth transition, the Government’s overall approach is to convert the body of existing EU law into domestic law, after which Parliament (and, where appropriate, the devolved legislatures) will be able to decide which elements of that law to keep, amend or repeal once we have left the EU. This ensures that, as a general rule, the same rules and laws will apply after we leave the EU as they did before’ (for analysis, see here).

However, the continuity provided by what is now the European Union (Withdrawal) Bill, published last week, must be seen in the context of the reality that leaving the EU will also require major constitutional and policy changes in a relatively short, and currently uncertain, time frame (see here). After all, the Government’s aim is that, as a result of Brexit, the UK will be able to decide which parts of EU-derived law to keep, and which to amend or repeal. A number of Brexit Bills, which will change the law in relation to, among others, immigration, trade, customs, agriculture and fisheries, were promised in the Queen’s speech. The clarity and certainty promised in the White Paper, which at first glance appear to provide comfort to citizens and businesses concerned over the effects of Brexit, are more elusive than ever. Continue reading

New Challenges for European Comparative Law

By Dr Jule Mulder, Lecturer in Law (University of Bristol Law School).

Dr Jule Mulder has published an article on European comparative law methodology entitled New Challenges for European Comparative Law: The Judicial Reception of EU Non-Discrimination Law and a turn to a Multilayered Culturally-informed Comparative Law Method for a better Understanding of the EU Harmonization.[1] This article argues that comparative law needs to explore its critical potential when engaging with the European harmonization process and its effects on the law of the Member States. Continue reading

Age discrimination is not in fashion: AG Bobek’s Opinion in Abercrombie & Fitch v Bordonaro

By Dr Jule Mulder, Lecturer in Law (University of Bristol Law School).*

This blog post provides a case comment of AG Bobek’s Opinion C-143/16 in Abercrombie & Fitch Italia Srl v Antonino Bordonaro delivered 23 March 2017. This comment was first published on EUtopia law on April 7, 2017 and is reproduced here with thanks.

The Facts

The case is concerned with the conformity of Italian law on on-call contracts with the EU principle of non-discrimination on grounds of age. Antonino Bordonaro was employed under an on-call contract (similar to a zero-hour contract) by Abercrombie & Fitch Italia Srl on a permanent basis. Upon his 25th birthday Mr Bordonaro was dismissed due to the fact that he no longer complied with the conditions for the intermittent contract, as laid down by Article 34(2) Legislative Decree No 276/2003 applicable at the time he was hired.

The (now repealed) Italian law in question provided special arrangements regarding access to and dismissal from on-call contracts for some workers. While on-call contracts under Italian law are usually subject to objective reasons and certain conditions, the provision allowed for such contract to be offered ‘in any event’ to workers under the age of 25 or above the age of 45. At the time of Mr Bordonaro’s dismissal, Article 34(2) had been modified. The older age bracket was lifted from 45 to 55 years of age. Moreover it was specified that an on-call contract can ‘in any event’ be concluded ‘with a person under 24 years of age, on the understanding […] that the contractual service must be performed before the age of 25 is reached’. The modified provision thus allowed automatic termination of permanent on-call contracts with younger workers once they reached the age of 25, in addition to allowing more flexibility regarding younger and older workers’ exposure to on-call contracts.

Unsurprisingly, the Supreme Court of Cassation (Corte Suprema di Cassazione) identified the direct and clear reference to age in Article 34 as potentially problematic and asked the Court of Justice of the European Union (CJEU) to rule on its compatibility with the principle of non-discrimination on grounds of age in Directive 2000/78 and Article 21 of the EU Charter. Continue reading

The phoney war is over. Theresa May has triggered Article 50. The clock is ticking. But clarity and legal certainty remain elusive

By Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School)

In her letter to Donald Tusk the Prime Minister outlined the UK’s starting position in negotiations with the EU. The EU Council of Ministers responded by producing draft negotiating guidelines (to be confirmed by the European Council at the end of April). These guidelines create the framework within which negotiations on withdrawal, and those on the future relationship between the UK and the EU, will occur. Meanwhile, a White Paper on the Great Repeal Bill was presented to Parliament, promising on the one hand to repeal the European Communities Act (ECA) and end the supremacy of EU law in the UK, and on the other to convert the acquis communautaire into UK law, so that ‘EU-derived rights’ (as we will need to get used to calling them) will, as far as possible, be unaffected.

The opening exchanges between the UK and EU have generated a lot of comment. Much of it has focused on the unlikely subject of Gibraltar (Michael Howard’s crass evocation of the Falklands conflict will have done nothing to lower simmering tensions). In relation to the White Paper, most attention has been devoted to the role of Parliament and the devolved assemblies. Rather less attention has been paid to many of the EU law aspects. In this short note, I focus on those. I first consider what new light has been shed on the way in which the Article 50 negotiations will proceed, drawing attention to the host of issues which remain unanswered. I then consider the EU law questions raised by the repeal of the ECA, and the conversion of the acquis into UK law. Michael Ford has already commented on this blog on the applicability of judgments of the European Court of Justice in the post-Brexit era; so there is no more on that subject here.

My overarching concern is that the Government, in particular in the White Paper, has failed to provide a clear sense of the size of the task which lies ahead. It is impossible to know whether this is because the Government itself does not appreciate the magnitude of the challenge, or because it is trying to conceal the difficulties. The Government has, for months, struggled to articulate just what Brexit might mean, and has made a series of disparate promises which a range of different constituencies have, if so minded, been able to rely on, or cling to. It will now start making hard choices. It has not prepared the ground well. Continue reading

Reflections on the ‘Three Knights Opinion’ and Article 50 TEU

By Miss Rosie Slowe LLM, Research Collaborator (University of Bristol Law School).

On 17 February 2017, Bindmans LLP published an Opinion that it had solicited from several leading authorities on EU law concerning Article 50 TEU. The so-dubbed ‘Three Knights Opinion’ put forward compelling legal arguments in support of why an Act of Parliament at the end of the Article 50 negotiation process is necessary in order to ensure that Brexit occurs in accordance with domestic and, by extension, EU law. These contentions, and Professor Elliot’s rebuttal, warrant careful consideration, not least because of the constitutional significance they pose.

The Opinion was asked to address three questions: whether it was a ‘constitutional requirement’, within the meaning of Article 50(1), that Parliament authorise the final terms of any deal reached with the EU; whether the UK is able to validly notify its intention to withdraw from the EU, pursuant to Article 50(2), subject to such a requirement; and the legal consequences if that requirement is not satisfied. It is submitted, for reasons that will become apparent, that the latter question of consequence is effectively answered by examining the possibility of conditionality being attached to notice under Article 50, and this post accordingly considers the two issues together. Continue reading

Law and Politics in the Supreme Court

By Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School).

By a majority of 8 to 3, the Supreme Court held that in light of the terms and effect of the European Communities Act 1972, ‘the prerogative could not be invoked by ministers to justify giving Notice under Article 50… Ministers require the authority of primary legislation before they can take that course’ (para. 101). Within hours, the European Union (Notification of Withdrawal) Bill,[1]  authorising the Prime Minister to trigger Article 50, was published. It passed through the House of Commons unscathed yesterday. A White Paper, setting out the Government’s plan for Brexit, such as it is, has also been published.[2]

The purpose of this post is very specific. My aim is not to analyse the judgment, the Bill or the White Paper. That has been done elsewhere. Instead, my aim is to begin to explore the relationship between law and politics, and between Parliament, the executive and the judiciary, taking as a starting point the judgments in the Supreme Court. The judges are, at times, careful not to trespass into the political realm. Nevertheless, their findings are informed and influenced, in a number of ways, by the political context. There are, moreover, important differences between the approaches adopted by the majority and the minority, including differences relating to the judges’ understanding of the legal process of Brexit.

It is hoped that inconsistencies between and within the judgments will provoke further academic consideration of the extent to which Courts should intrude into, or take cognisance of, the political realm; and of the extent to which constitutional safeguards are matters of substance or form. But, at this febrile political time, the clearest conclusion is that by failing to answer key questions of law, the Court has done a disservice to Parliament, thereby contributing, not towards the provision of a clear framework within which politicians are able to address the realities of Brexit, but to the pervasive sense of confusion. Continue reading

Article 50, the Supreme Court judgment in Miller ~ and why the question of revocability matters more than ever

By Miss Rosie Slowe LLM, Research Collaborator (University of Bristol Law School).

With the Supreme Court having ruled on 24 January 2017 that Parliament must have a say in the triggering of Article 50 TEU, the ensuing debate regarding the process for exiting the EU has revolved around what is politically considered the most desirable ‘type’ of Brexit, and whether MPs can restrict the Government’s negotiation position. This post puts forward the hypothesis that such debates may be irrelevant because, in the event that negotiations fail, the UK has no guaranteed input on the terms of its withdrawal from the EU. At the heart of this problem is the still unanswered question whether an Article 50 notification is revocable (Prof Syrpis).

In R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, the Supreme Court rejected the Government’s appeal and upheld the High Court’s ruling that the royal prerogative cannot be relied on to trigger Article 50.  Rather than reliance on executive power, an Act of Parliament is required to authorise ministers to give notice of the UK’s intention to withdraw from the EU. This is based on the premise that such notification under Article 50(2) would inevitably, and unavoidably, have a direct effect on UK citizens’ rights by ultimately withdrawing the UK from the EU. However, this assumption warrants exploration. Continue reading

December’s European Council meeting: No country for Social Europe

By Mr Konstantinos Alexandris Polomarkakis, PhD Candidate and Teaching Assistant (University of Bristol Law School).

customtileThe European Council is among, if not the most important of, the pivotal institutions of the EU, mapping out its direction for the near term. Its meetings act as the wayfinding system for the EU policies that are to be drafted and discussed in the coming months, affecting crucial issues that have been considered by the Member States’ leaders as pertaining to the Union’s top priorities. It sets the tone that the Member States as well as the rest of the EU institutions should follow.

In that regard, the latest European Council meeting in Brussels on December 15 touched upon the most pressing issues Europe is faced with at the moment. Managing migration flows and the Union’s asylum policy, ensuring an effective application of the EU-Turkey statement, deepening the common European security and defence policy while at the same time complementing the pertinent NATO mechanisms, the negotiation process on a settlement for Cyprus, as well as the future of the EU-Ukraine Association Agreement in the aftermath of the Dutch referendum in April, and the situation in Syria, all were at the spotlight of the summit. Even Brexit was dealt with by the means of a declaration following an informal meeting of the EU27.

On top of these issues, a whole section of the meeting’s conclusions was dedicated to what was designated as ‘economic and social development, youth’. This is, at first glance, a welcome addition, considering the uncomfortable position the EU is currently sitting at, with high levels of discontent, and, consequently detachment from the European project by its citizens, manifested in the recent public opinion polls and the rise of –primarily far-right- populism in its territory.  Social Europe could be a vehicle, which if employed effectively, has the potential to revive the long-lost interest towards and engagement with the EU. Continue reading

EU Non-Discrimination Law in the Courts. Approaches to Sex and Sexualities Discrimination in EU Law

By Dr Jule Mulder, Lecturer in Law (University of Bristol Law School).

img_6534In January 2017, my first monograph entitled EU Non-Discrimination Law in the Courts will be published with Hart Publishing/Bloomsbury. The monograph compares the Dutch and German application of EU non-discrimination law focusing on discrimination on grounds of sex and sexual orientation. It includes an analysis of the case law on direct as well as indirect discrimination and covers the cases which are linked to Article 157 TFEU, the Framework and Recast Directives (excluding equal pay for equal value and social security law).

Since the year 2000, the material and personal scope of EU non-discrimination law has been significantly broadened and has challenged national courts to introduce a comprehensive equality framework into their national law to correspond with the European standard.

The book provides a multi-layered culturally informed comparison of juridical approaches to EU (in)direct sex and sexualities discrimination and its implementation and application in Germany and the Netherlands. It examines how and why national courts apply national non-discrimination law with a European origin differently, although the legislation derives from the same set of EU law and the national courts have to respect the interpretive competence of the Court of Justice of the European Union. As such, it provides an in-depth analysis of the national legal and non-legal context which influences and shapes the implementation and application of non-discrimination law and reveals how some of these factors affect the interpretation and application of national non-discrimination law with a European origin. Continue reading

Same old, same old: The European Court of Justice’s fixation with the Plaumann test for individual concern

By Mr Konstantinos Alexandris Polomarkakis, Graduate Teaching Assistant and PhD Candidate (University of Bristol Law School).

© Trevor Parker

© Trevor Parker

In its Judgment in Ackermann Saatzucht and Others v Parliament and Council, joined Cases C-408/15 P and C-409/15 P, EU:C:2016:893, the European Court of Justice was given yet another chance to set out its position on the admissibility criteria, and more specifically on that of individual concern, for individuals to bring an action for annulment under the fourth paragraph of Article 263 TFEU.

This Judgment follows its recent rulings in T&L Sugars (C-456/13 P), Stichting Woonpunt (C-132/12 P), Stichting Woonlinie (C-133/12 P), Telefónica (C-274/12 P) and Inuit (C-583/11 P). The cases at hand were decided by the ECJ on appeal, lodged by two groups of German and Dutch operators active in the field of plant breeding, following the rejection by two orders of the General Court (in cases T-559/14 and T-560/14) of their  annulment actions against Commission Implementing Regulation (EU) No 511/2013 establishing the standard import values for determining the entry price of certain fruit and vegetables into the EU’s internal market.

The annulment of the said regulation was sought on the basis of it being incompatible with the content of Regulation (EC) No 2100/94 and the International Convention for the Protection of New Varieties of Plants. These laid down the breeders’ exemption granting plant breeders unrestricted access to protected varieties without a duty to disclose any information, something that was allegedly hampered by the entry into force of Article 4(3) of Regulation 511/13, which bestowed upon them an obligation of disclosure. Nonetheless, the said operators’ actions for annulment were dismissed by the General Court as inadmissible due to the lack of individual concern. In their appeal to the ECJ, they contested this finding, pleaded that the Regulation runs counter to higher ranking rules, and, also, claimed that because of the inadmissibility of their action, their right to effective judicial protection has been impinged. Continue reading