Prof. Dr. Ellen Hey has just published an interesting Reflection on ‘the challenges faced by international law due to the advent of the Anthropocene.’ This new term, coined in the eighties and popularized in 2000 by Nobel laureate for chemistry Paul Crutzen, refers to a new era characterized by the human intervention on the Earth’s (eco)system. Prof. Hey provokingly argues that ‘the underlying reasons for the advent of the Anthropocene are deeply engrained in international law, in particular in international economic law and some of the trade-based mechanisms that are part of multilateral environmental agreements (MEAs)’. She also argues “that these same underlying reasons are closely linked to the colonial legacy of international law.”

As noted by one commentator in the New York Times, ‘[t]he greatest challenge the Anthropocene poses may be to our sense of what it means to be human.’ From this vantage point, by reflecting on how international law is implicated in the reconfiguration of geological eras and in Anthropocene, Prof. Hey helps us seeing the very ‘human’ core of international law.

Enjoy the reading!

The Editorial Team of the IEUL Blog

Yesterday, the UK High Court has ruled that Parliament is to have a say both on Brexit terms as well as on the moment that Article 50 TFEU, the provision allowing Member States to withdraw from the European Union, is triggered. This is a major defeat for the government which intended to use its royal prerogative to trigger exit from the EU on its own.

As a result, the UK government has already announced that it is going to appeal the case in front of the Supreme Court, preparing for a ‘constitutional standoff’ between Parliament and government.

While the judgment of the Supreme Court will ultimately be the judgment that counts, this High Court judgment is to be welcomed from a constitutional point of view, that is as per the constitution as it stands today.

Parliamentary Sovereignty is at the very heart of the UK constitution. As Paul Craig has stated in a recent blog post on this issue preceding the ruling, it “is parliamentary sovereignty, it is manifestly not sovereignty of the executive or the government.“

It is, therefore, not the question as ‘to Brexit or not to Brexit’ that is legally contested. Instead, what is contested is essentially the interpretation of the principle of Parliamentary Sovereignty and its scope. Whatever the Supreme Court’s ruling may be, it will have profound influence on the constitutional landscape in the UK.

The principle of Parliamentary Sovereignty in the UK has a long history. Parliamentarism has its roots in the UK and has shaped our understanding of representative democracy like no other, albeit that different forms of representative democracy exist today. Deeply enshrined in constitutional tradition, Parliamentary Sovereignty has now served as the claimants’ principal argument against triggering Brexit without parliamentary approval, a challenge that the High Court accepted today.

The main argument put forward by the UK government, as represented by the Secretary of State for Exciting the European Union in this case, is that the decision to exit the EU falls under royal prerogative (a term to describe government’s residue of legal authority in cases where there is no statute or Common Law available, and which do not alter domestic law and individual rights- see judgment section 24 ff.). The government has argued that Brexit falls under royal prerogative since no provision has been made that exiting the EU needs parliamentary approval.

This interpretation was struck down by the Court mainly on the grounds that (1) Royal prerogative does not apply to the making and (unmaking) of international treaties and (2) Exiting the EU would lead to changes in individual rights, which do need parliamentary approval.

At the same time, the government has also implicitly (during the Court proceedings- see section 105 of the judgment) and explicitly (outside of the Court room) stated that the referendum of June 23rd was a strong enough mandate to trigger art. 50 TFEU:

“The country voted to leave the European Union in a referendum approved by Act of Parliament. And the government is determined to respect the result of the referendum. We will appeal this judgment.“- Government spokesman on November 3rd, 2016 (emphasis added)

This quote raises an interesting constitutional question. The current constitutional interpretation of Parliamentary Sovereignty states that, by default, referendums can only be advisory in nature. This was affirmed by the High Court in section 106 ff of today’s judgment:

“A referendum on any topic can only be advisory for the lawmakers in Parliament unless very clear language to the contrary is used in the referendum legislation in question. No such language is used in the 2015 Referendum Act.”

What the government (including the Prime Minister), however, seems to suggest (see for example here and here) when reiterating that “Brexit means Brexit”, is that, in case of the implementation of referendum results, the principle of Parliamentary Sovereignty is already adhered to, since an Act of Parliament approves the holding of the referendum itself.

It remains to be seen whether the government will actually use this argument during Appeal proceedings. If, however, the Supreme Court accepts this argument, even only in part, the consequences for the constitutional principle of Parliamentary Sovereignty cannot be understated: referendum results would be elevated to be binding in nature, reversing the traditional relationship between direct democracy and parliamentary democracy in the UK.

Having said that, the more likely result of the Appeal proceedings is probably yet another victory for the claimants. Arguing its way out of the principle of Parliamentary Sovereignty would also result in huge loss of constitutional credibility for the Supreme Court and raise fundamental questions on the nature of UK democracy. Nevertheless, constitutional traditions can be replaced by new constitutional traditions and legalise a loss of Parliamentary Sovereignty. That is the beauty and the danger of a Common Law constitution.

Proponents of parliamentary democracy (and Parliament itself!) should, therefore, continue to be on guard as the battle is not over yet.

Anna Sting

How could Europe not sign an agreement ‘even with a country with European values such as Canada, even with a country as nice and as patient as Canada’? The words of Canada’s trade minister Chrystia Freeland have been widely reported by media, after the Walloon government, with its veto, brought the Comprehensive Economic and Trade Agreement with Canada (CETA) to an impasse. The image of a miniscule province in Europe, taking hostage the European Union and its progressive ally Canada, risks conveying the cliché image of the anti-globalist blocking progress because of irrational fears.

Are the critiques to CETA irrational and populist?

Scholars have argued that the ‘anti-CETA arguments’ are incorrect and the European Commission has vigorously denied that CETA will put at risk health, safety and environmental regulation. In this post I will focus on the one of the most controversial institutions, which will be established by CETA: the Investment Tribunal, a sophisticated form of Investor State Dispute Settlement (ISDS) mechanism by which investors can directly sue governments, sidestepping domestic courts. The fears that this system may threaten the adoption of legitimate public policies have been fuelled by all too real cases, such as the (in-)famous Philipp Morris cases against Australia and Uruguay (the case, targeting measures aimed at preventing tobacco smoking, has not gone unnoticed by John Oliver). The ISDS system is problematic because it grants foreign investors the privilege (vis-à-vis normal citizens) to resort to an international arbitral tribunal. And to be sure, the revised CETA text includes open-ended provisions, such as the Fair and Equitable Treatment in Article 8.10, which can be easily used by investors to initiate all kinds of disputes.

But, why should we have such a system in the first place? The website of the European Commission contents that the ISDS is needed to protect foreign investors from discrimination and unfair treatment. Yet there is no empirical evidence, which shows that foreign investors as such are treated unfairly or are being discriminated. Given that the ISDS system has repercussions for public policy, the case needs to be made first of why we need it!

Looking at the history of international investment law, we cannot ignore the work by Kate Miles who has brilliantly shown how investment treaty law has co-evolved with our colonial history (read here and here). History aside, it is highly problematic to treat Canadian and European judicial systems as incapable to deliver justice. This is what CETA does by establishing the ISDS system. The trite line that there are some countries in Europe (e.g. Southern European countries), where the judicial system is far from perfect is all but a rebuttal of the argument that ISDS grants a privileged position to foreign investors. Citizens equally suffer from not well functioning legal systems. If, as a citizen, you get hurt by the leakage of a chemical factory, you do not have super-rights to go to an international arbitration tribunal to get compensation. Why should foreign investors be treated differently?

Is CETA better than nothing?

One powerful argument against the critiques is that CETA may not be perfect when it comes to ISDS, but it is a great improvement vis-à-vis already existing Bilateral Investment Treaties (BITs). Granted, the Investment Chapter in the current CETA text has greatly improved (now there are rules on transparency and about the independence of the arbitration tribunal). CETA would clearly be an improvement for the few European countries (mainly eastern European) that have a BIT with Canada. But most European countries do not have BITs with Canada, which means that CETA would establish this new system. The CETA Investment Tribunal is still criticized by legal scholar Gus Van Harten for various reasons, including for not sufficiently guaranteeing judicial independence, for not providing a right to intervene to affected parties, and for its imbalance in the allocation of rights and obligations (with investors being mainly granted the rights and governments the obligations). Many legal scholars have recently signed a letter to voice similar concerns about the ‘fundamental flaws’ of CETA.

While writing my last line, proposals are being weighted on how to go ahead with CETA without Wallonia. Instead of framing the Wallonia incident as a diplomatic disaster, the transatlantic negotiators could take it as an opportunity to further revise CETA in ways more responsive to critiques.

Dr. Alessandra Arcuri

 

One could get the impression the last days that the refusal of the region of Wallonia to allow the Belgian government to sign CETA marks the end of a nightmare. In reality, we were far from a nightmare and the debate around CETA is not yet finished.

CETA is no nightmare. On the contrary, CETA is an international treaty, which intends to improve the trade relations between Canada and the EU. The benchmark for the quality of CETA is the international trade law as it stands today. Because if there won’t be CETA, we will still have the WTO law regulating trade between the EU Member States and Canada such as the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) specifying inter alia the famous ‘precautionary principle’, the WTO Agreement on Technical Barriers to Trade (TBT Agreement) or GATS. Furthermore, the seven currently existing bilateral investment treaties (BIT) between Canada and EU Member States (Croatia, Czech Republic, Hungary, Latvia, Poland, Romania, Slovakia) remain in force. At this point it is worth mentioning that these BITs contain the heavily criticised old-fashioned investment protection rules without transparency rules, truly independent arbitrators and an appeal mechanism.

The CETA chapter on investment protection (chapther eight) shows significant improvements and testifies that the EU listened and reacted to criticism put forward by Parliaments and the civil society. The revised chapter on investment protection provides now, for the first time in an investment treaty, for clearly defined grounds to initiate investment disputes. It establishes a tribunal, in which the judges are remunerated by the EU and Canada and not by the conflicting private parties. Proceedings are subject to transparency obligations such as public hearings and access to documents. Awards rendered by CETA tribunals can be reviewed by an appellate tribunal. CETA establishes an investment protection chapter that meets the high standards of European and Canadian rule of law.

Is the debate around CETA now finished after the Wallonian refusal? Certainly not, the Wallonian refusal is the consequence of a Common Commercial Policy that is implemented by mixed agreements, where the EU, on the one hand, and the Member States, on the other hand, form the contracting parties on the European side. This mixity is the result of the fact that even after the entry into force of the Lisbon Treaty it is difficult to determine, which policy areas in a comprehensive trade agreement are covered by Union competences and which would still fall under national competences. Mixity avoids petty debates defining the borders of Union competences. The Wallonian refusal will now intrigue the Union legislator to enter into this discussion once the Court of Justice of the European Union rendered its opinion on the draft EU-Singapore agreement (Opinion 2/15), in which the Court will state on the reach of EU’s competences in the field of the common commercial policy. The outcome of this discussion will be that only the Union legislator, the Council voting by qualified majority together with the European Parliament, will decide within the then clearly defined limits of its competences on the ratification of future trade agreements. Member States are then bound by means of EU law by the content of these agreements. The first trade agreement that will be adopted in this way will most likely be an agreement between the EU and Canada.

The Wallonian refusal would hence end up to be what the old Romans called a ‘Pyrrhic victory’.

Dr. René Repasi

Dear readers,

Welcome to the re-launched blog of the Department of International and European Union Law of the Erasmus University! Largely corresponding to the research interests of the members of the Department, this blog focuses on issues related to International and European Union law.  These include – but are not limited to – the framework and functioning of legal institutions of economic governance and their implications for democracy, environmental, health, safety and social regulation as well as human rights.

We are aiming to bring you frequent contributions from the members of our Department on all sorts of topics ranging from newly-decided cases, to legislative changes, and from commentary on current (legal) affairs to announcements of events that could be of interest. We are also welcoming  guest blog-posts on themes related to International and European Union law and particularly those that are closely linked with our Department’s research interests.

Using this blog as a platform, we hope to foster an intelligent conversation and public debate around current issues that are not only legally relevant, but have an immediate effect on society at large. On this note, we kick-off our blog with some thoughts on the headline of the week: CETA.

Start following us and we’re looking forward to receiving your blog-posts.

 

The Editorial team,

Alessandra Arcuri, Andria Naudé Fourie, Anastasia Karatzia, Federica Violi and Masuma Shahid

 

 

Libyan_girl_wearing_a_niqab_(Libya,_2011-06-07)

The debate surrounding the prohibition of the full-face veil in all public spaces is far from settled both in Spain and in Europe. The European Court of Human Rights (ECtHR) analyzed the case S.A.S v. France on 1 July 2014. For the first time (previously the Court has ruled on headscarf regulations pertaining to e.g. the more specific school context), the ECtHR analyzed the claim of a Muslim woman, who voluntarily wore the niqab, alleging that the blanket burqa-ban passed in France breached her right to manifest her Islamic faith according to article 9 European Convention of Human Rights (ECHR). The ECtHR concluded that the principle of “living together” is a legitimate aim to prohibit the burqa and niqab in France, provided that wearing the full-face veil hinders communication among individuals.

On 14 February 2013, on the contrary, the Spanish Supreme Court rejected that a municipality could ban the use of the full-face veil, ruling that such a ban interferes with article 16 of the Spanish Constitution, which guarantees the right to freedom of religion. While the Spanish Supreme Court has the jurisdiction to assess whether a municipality has overreached its powers in passing a local burqa-ban, it does not have the authority to rule if a general prohibition of the burqa and niqab in all public spaces is constitutional. The latter falls under the jurisdiction of the Spanish Constitutional Court, which has not yet ruled on the matter.

Due to the controversial nature of this issue, this post aims to question the pertinence of prohibiting the burqa and niqab in all public spaces in Spain. Specifically, the notion of whether a burqa-ban is suitable, necessary and proportional to achieve the principle of “living together”, introduced by the ECtHR, is analyzed.

 The ECtHR’s Introduction of “Living Together” as a Legitimate Aim

In S.A.S. v. France, the ECtHR held that “respect for the minimum requirements of life in society”, or “living together”, may limit the right to religious freedom (S.A.S. v. France, §121). While article 9(2) ECHR does not establish “living together” as a legitimate aim to limit the right to religious freedom, the Court linked it to the “protection of the rights and freedoms of others”, a legitimate aim actually found in article 9(2) ECHR (ibid., §121). In S.A.S. v. France, the Court introduced “living together” as a legitimate aim to ban the burqa and niqab, on the basis that wearing the full-face veil hinders communication among individuals. Specifically, the Court pointed out that the “principle of interaction between individuals … is essential for the expression not only of pluralism, but also of tolerance and broadmindedness without which there is no democratic society” (ibid., §153).

The Court recognized that the legitimate aim of “living together” could be interpreted in a flexible manner, which consequently may lead to the abuse of this provision (Ibid., §122.). Therefore, the Court conducted a detailed analysis to determine whether “living together” was a legitimate aim. Firstly, the Court established that since very few women actually wear the burqa and niqab in France, a general prohibition may be excessive (ibid., §145). Secondly, the Court recognized the negative effects of such a prohibition, such as social isolation and the restriction of autonomy for women who voluntarily wear the veil (ibid., §146.). Thirdly, the Court raised its concern about the islamophobic manifestations that took place before the enactment of the French law of 11 October 2010 (ibid., §149).

Despite the previous acknowledgements, the Court finally accepted “living together” as a legitimate aim, alleging that “the Law of 11 October 2010 does not affect the freedom to wear in public any garment or item of clothing … which does not have the effect of concealing the face.” Furthermore, the Court pointed out that the criminal consequences for not complying with the law were “among the lightest that could be envisaged” (ibid., §151).

 A Critical Analysis of the Introduction of “Living Together” as a Legitimate Aim

The following lines will analyze the inconsistencies in the argumentation regarding “living together” as a legitimate aim (some authors have also expressed their concerns regarding the S.A.S. v. France ruling. See, Brems, Eva (2014). “Face Veil Bans in the European Court of Human Rights: The Importance of Empirical Findings”, Journal of Law and Policy, 22, pp. 517-551. Ouald Chaib, Saïla (2014). “S.A.S. v. France: Missed Opportunity to Do Full Justice to Women Wearing a Face Veil”, Blog of Strasbourg Observers. Berry, Stephanie (2014). “S.A.S. v France: The French Burqa Ban and Religious Freedom”, Blog of the European Journal of International Law). Furthermore, the position held by the Spanish Supreme Court will be examined, for it denied the “disturbance of public tranquility and peace” as a legitimate aim to prohibit the full-face veil in all public spaces (SSC 14 February 2013, ground 10º.).

Firstly, the ECtHR referred to the exceptions listed in article 9(2) ECHR as “exhaustive and … restrictive” (S.A.S. v. France, §113). Nevertheless, the Court did not follow its own recommendation, for it introduced “living together” as a legitimate aim to limit one’s freedom of religion. Indeed, in their dissenting opinion, Judges Nussberger and Jäderblom considered the concept of “living together” to be “far fetched and vague” (S.A.S. v. France, dissenting opinion, §5).

Secondly, the ECtHR held that the criminal provisions for those who violated the law of 11 October 2010 “were among the lightest” (S.A.S. v. France, §151). However, Judges Nussberger and Jäderblom disagreed, pointing out “where the wearing of the full-face veil is a recurrent practice, the multiple effect of successive penalties has to be taken into account” (S.A.S. v. France, dissenting opinion, §22.). In this respect, the Spanish Supreme Court ruled that every criminal provision must be interpreted restrictively and follow the principle of proportionality (SSC 14 February 2013, ground 5º.). In the dissenting opinion regarding the case of S.A.S. v. France, the Judges indirectly referred to the principle of proportionality, stating that “the [French] Government have not explained why it would have been impossible to apply less restrictive measures, instead of criminalizing the concealment of the face in all public places” (S.A.S. v. France, dissenting opinion, §24). Particularly, these Judges criticized that the ECtHR did not adequately explore alternative measures such as raising awareness and education for Muslim women (ibid., §24).

Thirdly, the ECtHR stated in S.A.S. v. France that “pluralism, tolerance, and broadmindedness are hallmarks of a democratic society” (ibid., §24.). Nonetheless, the Court recognized “living together” as a legitimate aim for a general prohibition, which in fact justifies a prohibitive law that hinders pluralism and diminishes the freedom of choice of women who voluntarily decide to wear the burqa or niqab. Similar criticism was raised in the dissenting opinion, whereby introducing the principle of “living together” as a legitimate aim was “interpreted as a sign of selective pluralism and restricted tolerance …; it [the ECtHR] has not sought to ensure tolerance between the vast majority and the small minority, but had prohibited what is seen as a cause of tension” (S.A.S. v. France, dissenting opinion, §14.). On the contrary, the Spanish Supreme Court in its ruling did ensure such tolerance and the protection of minorities (SSC 14 February 2013, ground 10º). To do so, the Spanish Supreme Court cited the case of Leyla Sahin v. Turkey, where the ECtHR established that “democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of people from minorities and avoids any abuse of a dominant position” (Leyla Sahin v. Turkey, §108.). Therefore, the ruling of the Spanish Supreme Court clearly differs from the position adopted by the ECtHR in S.A.S. v. France. The ECtHR stated that “the question whether or not it should be permitted to wear the full-face veil in public places constitutes a choice of society” (S.A.S. v. France, §153.). While the ECtHR sided with the majority, the Spanish Supreme Court aimed to protect the interests of the minority (SSC 14 February 2013, ground 10º).

Lastly, the ECtHR implemented a burqa-ban on the basis that it hinders communication in society. However, as Judges Nussberger and Jäderblom expressed in their dissenting opinion of S.A.S. v. France, “while communication is admittedly essential for life in society, the right to respect for private life also comprises the right not to communicate … – the right to be an outsider” (S.A.S. v. France, dissenting opinion, §8). In this regard, the Spanish Supreme Court considered that the “disturbance of public tranquility and peace” is difficult to justify, for if it is assumed that everyone has the right to see the face of another, that would imply denying the right of each person not to show it (SSC 14 February 2013, ground 10º). The Spanish Supreme Court ruled that it was not sufficiently demonstrated that the full-face veil provoked a “disturbance of public tranquility and peace”.

—–

The recent legitimate aim of “living together” introduced by the ECtHR in S.A.S v. France, seems to justify a general prohibition of the Islamic full-face veil. However, I believe that these types of generalized prohibitions, apart from dangerously opening the door to prohibiting the full-face veil in other countries, will not eradicate a tradition with strong cultural and religious roots among Muslim women. Hidden under the disguise of a general prohibition is not only a fear of discrimination, but an apprehension to pluralism at its deepest core, which makes uncovering the veil a more comfortable option for westerners. This hesitation to what is foreign is that what must be altered, to learn to value and appreciate the beauty and uniqueness of that which is different. It is only when foreign ideas are viewed with acceptance and respect under a universal vision, that integration and mutual tolerance will thrive, steering far away from prejudice and inequality (See Dogru v. France, §62. See also S.A.S. v. France, §128). In fact, a general ban implies shunning that which opposes one’s views, with the idea that the foreigner should adopt the traditions of the host country. Therefore, instead of restricting such a manifestation of religion, efforts should shift toward a more inclusive approach to strengthen dialogue between Spain and the Muslim organizations. Such an approach would encourage communication and understanding of wearing the full-face veil throughout Spain, promoting values of respect, acceptance, and coexistence in a social, plural, and democratic state.

 David Fernandez Rojo

This blog post is based on the research the author conducted for his Master Thesis at Erasmus University Rotterdam, which led to the publication “Pertinence of a General Prohibition of the Burqa and Niqab in Spain: A Human Rights Perspective” in the Yearbook on Humanitarian Action and Human Rights. David Fernandez Rojo is currently a PhD Student at the University of Deusto.

On October 16, the second year Bachelor Erasmus Honours Law College students travelled to the Court of Justice of the European Union (“ECJ”) in Luxembourg to visit a preliminary ruling at the ECJ. Additionally, the students spoke to Ms Van Engelen, staff worker for Ms. Prechal (for the Dutch judge of the Court of Justice), and to Judge Van der Woude, who is the Dutch judge of the General Court. In this blogpost, I will focus on one of the topics Judge Van der Woude discussed.

Judge Van der Woude mentioned various types of most reoccurring cases he encounters at the General Court. One category of cases that reoccurs quite often concerns sanctions.

He started off with the policy of the European Commission on placing sanctions on individuals and countries. As he explained, the European Commission rather frequently sanctions individuals without enough evidence, as the European Commission often only finds out about suspicious behaviour via informants. This practice raises some legal questions.

Firstly, the main reason for the Commission to withhold evidence, is their informants’ safety. However, in case of annulment of such a decision by the Court, it would imply that the European Commission is left empty-handed, since the Court would have to rule that the individual should not have been sanctioned, due to unsufficient evidence. If this would continue to occur, the European Commission might have to consider whether or not the secrecy of the information from informants should be of such high value. On the other hand, if the Court was to allow sanctioning individuals without the European Commission presenting evidence, this would be a violation of the principle of legality. This would be a disgrace to justice, because the Commission would end up sanctioning individuals without any evidence and any grounds needed. This could lead to sanctioning arbitrarily, which could not be the intention of the European Commission either.

Secondly, Mr. Van der Woude indicated that he personally disagrees with the policy of the Commission on sanctioning states that have policies the EU disagrees with. On the long term, the EU could create much hostility, as increasingly more states feel offended by the sanctions. However, a judge is not the right person to examine the policy of the European Commission. As a judge, he can only carry out the judicial control on whether the Commission has sufficient grounds and evidence to sanction. So however outspokenly he personally disagrees with the policy, it is not his place as a judge to declare whether this policy is in place or not. It is at this point that the judge clearly made a distinction between his professional and his personal opinion.

According to Mr. Van der Woude, at this point the European Parliament should get involved, Mr. Van der Woude said. The European Parliament has the ability to influence the policy of the Commission and the legislation that is made. It could, for instance, clarify when the General Court should accept the withholding of evidence, and when the Court should rule that no sanctions can be held against the individual due to lack of evidence. But in the end the question remained how to activate the Parliament in doing so.

Merel van de Poel

The Court of Justice of the EU: reconsideration after visiting

On the 16th of October 2014, students of the Erasmus Honours Law College visited the Court of Justice of the European Union in Luxemburg. The visit was organised by the Department of International and European Union law, in order to deepen our knowledge of the legal order of the European Union.

The day at the Court commenced with the opportunity to attend a preliminary ruling hearing of case C-547/13 Oliver Medical. Within the EU, the legal framework of the internal market provides for the free movement of goods. Thus, imported goods from outside the EU will have to meet certain EU requirements. Since the European Union is also a customs union, there are common customs tariffs for those imported goods. The main issue in this case was whether or not the ultrasonic and laser equipment of Oliver Medical could be classified as medical goods. If so, a common customs tariff more beneficial to Oliver Medical would be applicable. Therefore, the question of law was to determine what ranking criteria would cause the equipment to be distinguished as medical goods, or what would label them as purely esthetical goods. It was very interesting to observe that the European judicial process itself does not differ so much from domestic judicial processes, but that the appearance of the court, the courtroom, and the large amount of interpreters amounted to the impression that the case was of much greater importance than simply determining the right customs tariff.

What perhaps was even more interesting was the meeting with prof. mr. Marc van der Woude, Judge at the General Court. Not only did he give us an overview of issues that are commonly addressed at the General Court, he also let us in on his personal thoughts on the role of the Court of Justice of the European Union and in which direction the European Union is possibly heading. In a personal  opinion, he raised the question of which institution is actually drafting the policies in present day Europe. Is that the European Commission, as it should be according to article 17 of the Treaty on the European Union, or is the Court increasingly more stepping in as a policy maker? Judge Van der Woude appears to be of opinion that the Court of Justice is indeed stepping in by continuing to rule more often over decisions that are supposed to be taken by institutions such as the Commission and the European Parliament. Moreover, he does not necessarily seem to think that the Court should be fond of such a development, as this would mean that judges are increasingly taking on tasks of the legislator. Judge Van der Woude even questioned whether or not the European Union is becoming a modern Byzantium – has the Union started to lose control over its continued existence, now that the distribution of tasks has started to become blurred?

As European citizens, we do not have to fear that the opinions and thoughts of Judge Van der Woude will impact his rulings; he explicitly stated that he has no problem whatsoever with distinguishing his personal opinion from his professional one. However, if someone who is aware of the ins and outs of the European Union is questioning whether the EU can still control its own institutional direction and policy making, could this not be an eye opener for us? Should we not more critically assess the on-going developments of the European Union? Thus, the thoughtful comments of Judge Van der Woude gave us something to think about on the way home, and it certainly completed our visit in such a way that the students now have a much more nuanced vision of the European Court of Justice.

Eefke Janssen

EU

To the relief of many, and surprise of some, the Court of Justice affirmed in Dano (Case C-333/13) in November 2014 that EU citizens cannot just move into a Member State and start taking benefit of its welfare systems.

Yes, affirmed is correct. Let’s be clear about this: EU law has never granted the right to move into a Member State and have immediate access to its welfare systems.

The Treaties establish the right for the citizens to enter and reside in Member States (Articles 20, 21 TFEU and 45 of the Charter). Yet, these rights are subject to limitations, and the Citizens’ Rights Directive (CRD, 2004/38) makes it rather clear that the right to settle in another Member State is initially reserved to those who are not going to be burden to the Member State’s social security system (Articles 7 and 14 CRD). Accordingly, those who can benefit from the free movement are workers, self-established and service providers.

Students and pensioners can also move, provided that they have the means to support themselves. Job-seekers, while they can move into the Member State, their right to residence is restricted for three months, and they are excluded from the right to social benefits (Article 24(2) CRD).

The decision in Dano fits well in this scheme and therefore does not give much of a surprise.

Yet, this does not mean that issues surrounding the EU citizens’ rights to social benefits are settled. There are increasing number of reports of Member States expelling EU citizens on grounds that those citizens are not able to support themselves. The need for further clarification may arise in particular with respect to part-time workers, as they may need a recourse to social security to continue living in the Member State.

The Court considers part-time workers as workers if the work is genuine. In this case, also part-time workers are entitled equal treatment as to social benefits under Article 24 CRD. However, the Member States may consider that the employment is less genuine in cases where the part-time workers need to make recourse to the social security assistance in order to support themselves.

The answer to this question may reveal to us more about the nature of the free movement for EU citizens. First, it needs to be asked clearly whether we are intentionally moving from citizenship to migration law. The first, citizenship, gives the right to move and reside, whereas in the framework of the latter, migration law, the person needs to satisfy the state authorities in that he or she has a valid claim to stay. Furthermore, the limitations on access of part-time workers to social security should be seen also as a feminist issue as there are more women in part-time work. Finally, if the right to social benefits is mainly extended symbolically to those who have no need for it, these developments may even strengthen the view, or be part of the self-fulfilling prophesy, of European Union as an elitist project.

Dr. Helena Raulus

Introduction

On Thursday 11 December 2014 the department of International and European Public Law organised a study trip to The Hague. On that day LL.M. students of the ESL IEPL programme together with Mr. Chris Koppe LL.M, B.A, an EU law lecturer at the IEPL department and organiser of the study trip, visited the Peace Palace Library and SOLVIT The Netherlands. The study trip began at Rotterdam Central station where at 09.00 hrs everyone together took a train to The Hague.

Peace Palace Library

When arriving before the gate of the Peace Palace, the group first absorbed the grand view of the Peace Palace, before entering the library section. The Peace Palace Library has one of the most extensive and oldest collections of books and journals on international and European Union Law. For lawyers specialised in international and/or European law, the catalogue of the Peace Palace Library is an indispensable source of information.

After having entered the library, the group received a short lecture on the history of the Peace Palace and its library by legal information specialist Ms. Candice Alihusain. After having explained the need for a Peace Palace, she explained how funds to build the Peace Palace came mainly from the American businessman and philanthropist Alfred Carnegie (1835-1919), to whom the foundation is named as we know it today, and that these funds were used to finance the design of the Peace Palace drafted by the French architect Louis Marie Cordonnier. Besides focussing on the history and how it came into existence, the lecture highlighted last year’s centennial and the way in which the Peace Palace has been a symbol for peace throughout the years (and probably in the years to come…). In addition, the lecturer gave us a small treat, by explaining us about her specific field of interest, namely how women like Bertha von Suttner (1843-1914) and Aletta Jacobs (1854-1929) contributed to peace within the international peace movement.

After the lecture we received information on how to conduct legal research in the Peace Palace library. This type of information is are vital for our IEPL students, since it allows them to further develop their research skills. The librarian was well informed of our programme, and we received a tailor made tour through the library, which ended on a high note in the old reading room (see picture).

After our visit to the Peace Palace Library, it was time for lunch and to enjoy The Hague, the international city of peace and justice.

SOLVIT

In the afternoon we visited SOLVIT the Netherlands. SOLVIT is a cross border service for EU citizens and business companies whose EU rights are infringed by government bodies of another EU Member State as a result of the misapplication of EU law. Being a cross-border service, SOLVIT has a service centre in every Member State of the European Union to facilitate EU citizens and companies. In general, these centres are located in the Ministries of Economic Affairs. The centres are financed by the European Commission.

After a few words of introduction, the group received a lecture by one of the Ministry’s Senior Policy Advisors on Internal Market. The Senior Policy Advisor provided us with an insight on how the European Union works in terms of general practice and how the EU functions in Brussels. Moreover, she gave us some insights on the relationship between the European Commission and the Dutch government.  As such, the lecture was received very well, particularly since the lecture provided the group with insight that cannot be found in books.

Subsequently, the group had a Master class organised by two staff members of SOLVIT The Netherlands in which three cases were discussed that SOLVIT has actually dealt with. The group was requested to prepare these cases beforehand which sought the effect that the group engaged lively in the discussion of the cases together with the people of SOLVIT, who were quite impressed by the group’s level of knowledge, reasoning and participation. After the last case was discussed, it was time to head home again.

Conclusion

Overall it was a very insightful day. This study trip not only allowed students to further develop their research skills, but also allowed them to gain insight on how European Union law works in practice. In addition, by means of the study trip international students got to know The Netherlands and The Hague a little bit better.

Chris Koppe

 

Erasmus School of Law

In een werkstad als Rotterdam is arbeidsrecht elke dag onderwerp van discussie. Een in arbeidsrechtelijke vraagstukken gespecialiseerde sectie kan dan ook niet ontbreken binnen Erasmus School of Law te Rotterdam. De sectie Arbeidsrecht is een jong en dynamisch team van arbeidsrechtspecialisten. Blijf op de hoogte van de wervelende dynamiek binnen dit wetenschappelijke vakgebied en het praktische werkveld: het arbeidsrecht volgens de Rotterdamse school!

Decaan ESL

  • Alessandra: Things are getting even more complicated: http://theconversation.com/a-ruling-in-belfast-makes-the-h [...]
  • Alejo: Thank you very much! This year has been inspiring, interesting and simply awesome. It has definitely [...]
  • Sophia: Thank you Mrs. Hey! This master would never be the same without you! [...]
  • Nasha Desbarida: Thank you very much. We started some weeks ago and at the beginning I was like' where do I have to s [...]
  • Ana: Lots of luck to everybody starting this year! Last year was fantastic and the professors in EUR of t [...]