European Law Review ISSN: February EL Rev

Transcription

1 Editorial Brexit and International Treaty-making Obituary Pierre Mathijsen ( ) Laurence Gormley European Law Review ISSN: February 2016 EL Rev Article s Gauweiler and the Legality of Outright Monetary Transactions Paul Craig and Menelaos Markakis Creating European Markets through Regulation: The Case of the Regulation on Advanced Therapy Medicinal Products Marton Varju and Judit Sándor The Economic Effects of EU Tax Jurisprudence Rita de la Feria and Clemens Fuest Security Rights, the European Insolvency Regulation and Concerns about the Non-application of Avoidance Rules Andrew Keay Analysis and Reflections The Léger Ruling as Another Example of the ECJ s Disappointingly Reticent Approach to the Protection of the Rights of LGB Persons under EU Law Alina Tryfonidou Joining the Dots: External Norms, AFSJ Directives and the EU s Role in Global Legal Order Elaine Fahey The ECB s Location Policy for Central Counterparties: Is the General Court Drawing a Line, or Taking One Step Back to Take Two Steps Forward? Evangelos Ananiadis-Bassias Book Reviews EL Rev February 2016 Page 1 of 5

2 Editorial Brexit and International Treaty-making EU law; European Union; Referendums; Treaties Since the election victory of the Conservative party in May 2015, the Government of the United Kingdom has engaged in negotiations with its European Union partners. The subject - matter of these negotiations were set out in a letter which Prime Minister David Cameron sent to the President of the European Council on 10 November This letter outlines four areas where the British Government is seeking change. These include the following: economic governance (that is preventing the members of the Eurozone from decision-making which would affect the internal market in general and the Member States which are not members of the Eurozone in particular); competitiveness; sovereignty (in particular the removal of the reference to ever closer union in primary law and the strengthening of national parliaments); and immigration (including the benefits granted to EU citizens). At the time of writing, there is no agreement between the United Kingdom and the other EU Member States. There is, however, a strong suggestion that such an agreement would be reached at the European Council summit of February 2016 and that a referendum would be scheduled for the summer of The issues raised by the British Prime Minister have attracted considerable legal and political attention. The demands on immigration, in particular, have given rise to a debate about free movement in the European Union and the integrity of the internal market. This debate has been deeply politicized and often carried out at an abstract level. Less attention has been paid to the external relations implications for the United Kingdom of a possible exit from the EU. In particular, how would such a development affect the international obligations which the UK has assumed pursuant to EU law? After all, the Union has been an active international player and has concluded international agreements in a wide range of policy areas. These agreements are binding upon both the institutions of the Union and the Member States (art.216(2) TFEU). As the Court of Justice puts it, such agreements form an integral part of EU law. 1 The UK is not a party to all these agreements, even though it is bound by all of them. Some cover areas which fall within the Union s exclusive competence and have been concluded by the Union alone. 2 Following an exit from the EU, such agreements would not be applicable to the UK which would, then, need to renegotiate its legal relationships with the third parties concerned. The legal implications under mixed agreements, that is agreements concluded by both the EU and its Member States, are no less complex. Mixed agreements cover a considerable part of the Union s treaty-making activity. 3 Whilst the UK is a party to such agreements, the rights which it has enjoyed under their provisions, as well as the obligations it has assumed, would not continue to apply automatically. For instance, mixed agreements may be of an essentially bilateral nature. This is suggested by both their context and wording. 4 It has also been affirmed by the Court which, in European Development Fund, held that the Lomé Convention between the EU and its Member States and African, Caribbean and Pacific states established an essentially bilateral ACP-EEC cooperation. 5 1 R&V Haegeman Sprl v Belgium (181/73) [1974] E.C.R. 449; [1975] 1 C.M.L.R See, for instance, the Agreement between the EC and Australia on trade in wine [2009] OJ L28/3. 3 See C. Hillion and P. Koutrakos (eds), Mixed Agreements Revisited (Oxford: Hart Publishing, 2010). 4 They refer to the contracting parties as the European Union and its Member States, of the one part and the other contracting party of the other part : see, for instance, the Free Trade Agreement with South Korea [2011] OJ L127/1. 5 Re European Development Fund (C-316/91) [1994] E.C.R. I-625; [1994] 3 C.M.L.R EL Rev February 2016 Page 2 of 5

3 In other words, following an exit from the EU, the UK would have to re-examine the international treaties under which it is currently bound in the context of EU law, and negotiate many treaties which would straddle a wide range of policy areas. This would be bound to be a long, difficult and expensive process which would raise a host of legal, policy, and practical problems. For instance, in the areas where the Union enjoys exclusive competence, such as the Common Commercial Policy, the UK has long given up its power to negotiate international agreements, as such power has been conferred on the Commission (art.218(3) TFEU). There is also another practical issue which would have an impact on the negotiating position of the UK following a possible exit from the EU. There is an increasing tendency in international treaty-making for big package deals. In the case of the EU, the Commission has been advocating deep and comprehensive free trade agreements since the mid 2000s. 6 Such agreements include the Free Trade Agreement with South Korea, the Comprehensive Economic and Trade Agreement with Canada, let alone the much maligned Transatlantic Trade and Investment Partnership which is currently negotiated with the United States of America. Such big deals require big markets to support them. The political sensitivity of the upcoming referendum may give prominence to an emotional response and may dominate the deeply politicized debate surrounding the current negotiations between the UK and the EU. Such response, however, should not marginalize the need for a careful consideration of the legal and practical implications of a possible exit for all the policy areas which would be affected. Whilst less eye-catching, this exercise should be an essential part of the conversation about whether the UK should leave the EU. [PK] 6 See Global Europe: Competing in the World COM(2006) 567 final. EL Rev February 2016 Page 3 of 5

4 Obituary Pierre Mathijsen ( ) Laurence Gormley Article s Gauweiler and the Legality of Outright Monetary Transactions Paul Craig and Menelaos Markakis The Gauweiler case has already made history, since it was the first reference from the Bundesverfassungsgericht to the Court of Justice of the European Union (CJEU). Whether it makes history in other respects remains to be seen. The Bundesverfassungsgericht s reference was framed by its jurisprudence on ultra vires and identity locks, and the Bundesverfassungsgericht left the CJEU in no doubt that it felt that the European Central Banks (ECB) s intervention via Outright Monetary Transactions was unlawful, and could only be saved if interpreted in the manner set out by the referring court. The CJEU nonetheless upheld the legality of the Outright Monetary Transactions (OMT) schema, and its reasoning, together with that of the Bundesverfassungsgericht, is analysed in this article. It will be argued that the CJEU s decision was correct and legitimate in the light of the relevant Treaty provisions. The ball is now firmly back with the Bundesverfassungsgericht, and it remains to be seen whether it accepts the CJEU s ruling or makes history by refusing to follow it. Creating European Markets through Regulation: The Case of the Regulation on Advanced Therapy Medicinal Products Marton Varju and Judit Sándor This article analyses the EU regulatory efforts to create a European market for advanced therapy medicinal products. It focuses on the pitfalls of European regulatory intervention in a difficult market which is characterised by multiple, often contradictory stakeholder expectations, rapid scientific and technological change, and ethical diversity. It contends that while the Regulation on Advanced Therapy Medicinal Products was, in principle, equipped to address these challenges, its fundamental paradigms and choices, and its treatment of some of the dilemmas of the emerging technology market, undermined its ability to establish the balanced and sustainable market desired by the EU legislator. The Economic Effects of EU Tax Jurisprudence Rita de la Feria and Clemens Fuest The aim of this article is to propose a new framework to assess the impact of Court of Justice of the EU (CJEU) jurisprudence on the construction of a European internal market, by considering whether the jurisprudence of the Court on corporate taxation fulfils the mandate set out in the European Treaties for establishing such a market. It is shown that the Court s focus upon removing discriminatory obstacles to the fundamental freedoms does not necessarily lead to a more level playing-field and increased tax neutrality, an instrumental objective towards attaining a European internal market. In order to assess the impact of the jurisprudence of the Court upon neutralit y and a level playing-field, the decision in Lank horst- Hohorst, regarding the compatibility of thin capitalisation rules with free movement provisions, will be used as case study. An economic analysis demo nstrates that, depending on the reaction of Member States to the ruling, tax induced differences in capital costs faced by firms operating within the European internal market may increase, while GDP and welfare may decrease. Consideration of actual legislative amendments introduced to thin capitalisation rules by Member States following Lankhorst-Hohorst appear to indicate that it is this negative scenario which has prevailed. Results demonstrate that it is not always or necessarily the case that decisions of the CJEU will lead to a more level playing-field and tax neutrality, thus contributing to the establishing of a genuine EU internal market. The article considers the constitutional implications of this conclusion, and the consequent breaking of the constitutional instrumental chain. Security Rights, the European Insolvency Regulation and Concerns about the Nonapplication of Avoidance Rules Andrew Keay This article addresses debtors who have entered insolvency proceedings in a Member State of the EU so that the European Regulation on Insolvency Proceedings applies, and before the opening of insolvency proceedings they granted some form of security to another party. The EL Rev February 2016 Page 4 of 5

5 article analyses the issues that are relevant to determining whether the granting of security prior to the advent of insolvency proceedings under the Regulation can be avoided, and it examines the extent to which pre-insolvency trans actions involving security would be protected by arts 5 and 13 of the Regulation. It then analyses the concerns that might be articulated in relation to the application of art.13 and what options are available to the EC to address these concerns. Analysis and Reflections The Léger Ruling as Another Example of the ECJ s Disappointingly Reticent Approach to the Protection of the Rights of LGB Persons under EU Law Alina Tryfonidou In the 1980s, in the midst of the AIDS epidemic, many countries introduced lifetime bans on blood donations by men who had sexual relations with men (MSM). These blanket b ans have, recently, begun to be challenged and, as a result, many countries have either relaxed them or completely abolished them. The case under examination (Léger) is another instance of questioning the legality of such a ban. In particular, in this case, the European Court of Justice was called on to rule on whether a measure such as the French lifetime exclusion from blood donation of the MSM population that was at issue before the referring court is contrary to EU law. The Court ruled that although discriminatory on th e ground of sexual orientation, such a ban may be justified in certain circumstances, and left it to the national court to make the final decision. This article seeks to analyse the case and to explain why, in the author s view, the Court can be accused of once more not going far enough in the protection of lesbian, gay and bisexual (LGB) rights. Joining the Dots: External Norms, AFSJ Directive s and the EU s Role in Global Legal Order Elaine Fahey This article considers how external norms, i.e. instruments of public international law, including but not limited to conventions, agreements and treaties qua norms internalise into 17 proposed and adopted Area of Freedom, Security and Justice (AFSJ) Directives of the last legislative cycle of the EU, from 2009 to The article considers select Directives, namely (1) the first EU criminal law Directive; (2) the first AFSJ Directive struck down by the Court; (3) a Directive employing a norm common to internal and external rule-making; (4) UN Conventions in AFSJ Directives; and (5) Directives omitting the promotion of any external norms. The study of the promotion of external norms is argued to reveal much about the relationship between the external and internal of EU law and policy, and the evolution of its AFSJ. The EU s participation in these external norms is also relevant for the study of the EU s role in the world. The ECB s Location Policy for Central Counterparties: Is the General Court Drawing a Line, or Taking One Step Back to Take Two Steps Forward? Evangelos Ananiadis-Bassias In a much-awaited ruling on 4 March 2015 in Case T-496/11 the General Court of the EU annulled the Eurosystem s Oversight Policy framework (OPF) euro area location requirement for central counterparties (CCPs) clearing transactions over securities denominated in euro. In so doing, the Court held that the OPF was a legally challengeable act, thereby declaring admissible the action brought by the UK. The Court steered clear of the question of the OPF location requirement s compatibility with freedom of movement, as enshrined in the Treaty, limiting the scope of its review to the regulatory competence of the European Central Bank (ECB) over securities clearing systems. The ECB was found to have no regulatory power over CCPs but may continue providing recommendations to public authorities on CCP -related oversight standards and practices. This article offers an overview of the major points of the Court s ruling, and an assessment of its likely implications. Book Reviews Tables Index EL Rev February 2016 Page 5 of 5