EU sanctions against non-EU countries: the CJEU will soon address some key legal issues

Stian Øby Johansen, PhD fellow at the University of Oslo Faculty of Law*

This week I attended the hearing at the Court of Justice of the European Union (CJEU) in case C-71/15 (Rosneft). This is one of several cases brought by the Russian energy company Rosneft against the EU sanctions regime established following the Russian military intervention in Crimea. The case has its basis in a request for preliminary ruling by the High Court of Justice (England & Wales), Queen’s Bench Division. In the reference, the High Court of Justice asks the CJEU to determine the validity of several provisions of the EU economic sanctions against Russia.

As the legal issues in play in this case are very closely connected with the precise legal nature of the sanctions challenged, it is necessary to first describe the contested parts of the EU sanctions regime in some detail. Then I will go through the submissions of the parties, and offer some preliminary analysis of the arguments presented. My focus is the same as that of the oral hearing; on the issue of the jurisdiction of the CJEU to review sanctions adopted under the EU’s Common Foreign and Security Policy (CFSP). Before we start I must also add a small disclaimer: this report is based on my own notes and recollections, and there may thus be inaccuracies, misunderstandings, or plain errors.

THE CONTESTED PARTS OF THE EU SANCTIONS REGIME

The contested parts of the EU sanctions regime in this case are the measures “targeting sectoral cooperation and exchanges with Russia” – which I will refer to as the sectoral measures. These sectoral measures are laid down in Council decision 2014/512/CFSP and Council regulation 2014/833/EU (links to latest consolidated versions). Essentially, these provisions prohibit EU persons, natural or legal, from engaging in contractual relations with certain Russian state-owned companies and banks, and from providing such companies and banks access to financial markets.

Sectoral measures may be contrasted with the targeted sanctions laid down in Council decision 2014/145/CFSP and Council regulation 2014/269/EU (links to latest consolidated versions). Such targeted sanctions directly affect named Russian natural and legal persons (not including Rosneft) by inter alia obliging European financial institutions to freeze their assets. With regard to the sectoral measures, on the other hand, Rosneft primarily feels the sting of them through the lack of access to European suppliers, consultants, credit institutions, etc.

This distinction between targeted and sectoral sanctions is also reflected in TFEU Article 215. According to that provision the Union may in the form of a regulation adopt measures providing for ” the interruption or reduction, in part or completely, of economic and financial relations with one or more third countries” (i.e. sectoral measures) or “restrictive measures […] against natural or legal persons” (i.e. targeted sanctions). Since sectoral measures are formulated as prohibitions on EU citizens and undertakings from engaging in such activities, they only seems to affect Rosneft indirectly; it is their EU partners that are now prohibited from doing business with Rosneft. Note the use of the word seems in the previous sentence. Rosneft argues that it is also directly affected by the sectoral measures, and that they should be regarded as targeted sanctions. Still, the following summary of the hearing more or less presupposes that the sanctions are sectoral measures – which was also generally presupposed during the hearing.

A final peculiarity concerning CFSP sanctions regimes is that they are enacted through the use of two separate legal instruments. First, by a Council foreign policy (CFSP) decision under TEU Article 29. Second, and following such a decision, the sanctions are implemented within the internal market by means of a Council regulation under just-mentioned TFEU Article 215. In the present case the relevant instruments are Council decision 2014/512/CFSP and Council regulation 2014/833/EU, which I will refer to in the following as “the CFSP decision” and “the regulation”, respectively. The relationship between the regulation and the CFSP decision was a key factor in relation to many of the issues discussed during the oral hearing in Rosneft.

The CFSP decision is adopted under a provision in the CFSP chapter of the TEU, namely Article 29. This has certain consequences. First, legislative acts are precluded under the CFSP: see TEU Article 31(1). Second, being adopted under the CFSP chapter the jurisdiction of the CJEU to review the decision is generally excluded according to TFEU Article 275(1). Third, while the EU member states “shall ensure that their national policies conform to” the CFSP decision, the decision is not binding upon persons (natural or legal).

The regulation adopted under TFEU Article 215 implements the CFSP decision within the internal market. That regulation is not a CFSP measure. This means that it is binding in its entirety, also on natural or legal persons, and directly applicable within the legal system of the EU member states (TFEU Article 288(2)). Moreover, the general jurisdiction of the CJEU to review acts of the Union institution should therefore apply. (But see the Commission’s arguments to the contrary discussed below.)

What kind of provisions the two instruments should contain when the Union imposes sanctions is less clear. The only guidance we seem to get from the constituent treaties is that (a) legislative acts cannot be enacted in the form of CFSP decisions, and that (b) when a CFSP decision “provides for the interruption or reduction, in part or completely, of economic and financial relations with one or more third countries” the Council shall adopt “the necessary measures” in the form of a regulation under TFEU Article 215. In practice, the wording of the CFSP decision and the regulation is more or less identical. This is also the case here. The provisions Rosneft is challenging are almost word-for-word identical in the CFSP decision and the regulation.

Having mapped out the legal context of the dispute, I will now proceed to the case itself and the main arguments presented at the oral hearing.

PARTIES AND KEY MEMBERS OF THE COURT

The parties to the case before the CJEU are, on the one hand, Rosneft, and on the other, the United Kingdom and the UK’s Financial Conduct Authority – all of which submitted written pleadings and participated in the oral hearing. The Council and the Commission also submitted written pleadings and participated in the oral hearing. In addition, the following states also participated in the oral hearing: the Czech Republic, Germany, Estonia, France, and France. Most of the intervening states had submitted written pleadings as well, with Poland being the only exception I am aware of.

The CJEU is composed as a grand chamber, with President Koen Lenaerts as the presiding judge. The judge-rapporteur is Judge Allan Rosas. I did not make proper notes on who the Advocate General (AG) assigned to the case is, but judging from the pictures on the CJEU’s website I believe it is Melchior Wathelet. The AG promised to deliver his opinion by May 31st, 2016.

CFSP JURISDICTION OF THE CJEU – THE REGULATION

The first question referred to the CJEU is whether the latter is competent to review (a) the regulation and/or (b) the CFSP decision. While the CJEU has general jurisdiction over all matters of EU law under TEU Article 19(1), one significant exception is laid down in the TFEU Article 275(1). According to the latter provision the CJEU “shall not have jurisdiction with respect to the provisions relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions”.

This carve-out from the otherwise general jurisdiction of the CJEU is, according to the text of TFEU Article 275(2), subject to a couple of exceptions. First, the CJEU shall have jurisdiction to monitor compliance with TEU article 40 (the dividing line between foreign policy and other EU measures). Second, the CJEU shall have jurisdiction to, “in accordance with the conditions laid down in TFEU Article 263(4)”, review “the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council”. In the cases where these two “exceptions from the exception” apply we are thus back to the default rule; the CJEU has jurisdiction.

There was a general agreement at the hearing that the CJEU generally has jurisdiction to review the regulation. This is not surprising. As described above, the regulation is not a CFSP measure and the CJEU should consequently have jurisdiction under TEU Article 19(1). So far, the participants at the oral hearing agreed.

There were, however, significant disagreements as to the extent of the CJEU’s jurisdiction to review the regulation. First, there were disagreement on whether the CJEU’s jurisdiction extended to preliminary ruling proceedings – an issue which I come back to later. Second, the Commission seemed to want to limit the CJEU’s jurisdiction to review CFSP regulations slightly, by introducing a “political questions” or “act of state” (french: “acte de gouvernement“) doctrine into EU law. The latter, highly unusual move by the Commission was the object of much debate during the oral hearing.

What the Commission essentially proposed was a way of delimiting the CJEU’s jurisdiction over CFSP measures that would focus on substance rather than form. According to the Commission TFEU Article 275(2) must be read as a clarification of the general principle that the CJEU will always have jurisdiction in connection with restrictive measures affecting individuals. While this should be the guiding principle, the CJEU should not have jurisdiction to review the “political choices” (Commission’s phrasing) underlying the restrictive measures.

In the present case the Commission considered that the CJEU would be precluded to review, inter alia, the choice to impose a trade embargo on Russia, the choice of targeting the petroleum sector, and whether the measures were necessary (proportionality). The Commission also provided some example of what the CJEU would have competences to do; to interpret the impugned regulation, and to consider its validity in light of other provisions of EU primary law.

Despite the apparent novelty of this argument, the Commission insisted that its use of the term “act of state” was merely a label it attached to the political choices that cannot be the object of CJEU review. It argued that it did not invite the court to reinvent the law, but rather to recognize the general principles upon which TFEU Article 275 is based.

The Council, Rosneft, and the member states strongly opposed the Commission’s “act of state” doctrine. They accused the Commission of going beyond both the text of the treaties, context, and purpose of the constituent treaties of the Union in an attempt to expand and reshape the CJEU’s jurisdiction. Several of them explicitly pointed to the fact that the text of the jurisdictional carve-out in TFEU article 275(1) makes no distinction among CFSP acts, and that it lacks any reference to an “act of state”/”political questions” doctrine. Some pointed to the1989 opinion of AG Darmond in Case C-241/87 Maclaine Watson (case later settled), where the existence of an “act of state doctrine” within EU law was discussed at length and rejected. France argued that the recently decided Elitaliana case (C-439/13 P) contained an implicit rejection of the Commission’s suggested general jurisdiction over CFSP measures (with only an “act of state” exception). Poland reminded the CJEU that under TEU article 40 it was only competent to draw a dividing line between what is and what is not a CFSP measure. This should be taken to imply, a contratio, that the CJEU is precluded from drawing distinctions within the CFSP. Rosneft supported the Council and the member states on this point, stating that it would be “dangerous to introduce such an imprecise and vague doctrine” into Union law. Rosneft also referred to AG Maduro’s Opinion in the Kadi case (paras 41-45).

Several members of the court seemed to have similar problems with the Commission’s “act of state” doctrine. President Lenaerts repeatedly questioned the Commission’s agent on the matter. He was particularly puzzled by the argument that the CJEU’s review of the regulation would be limited by the “act of state” doctrine. When the Commission’s agent confirmed that to be their argument, Lenaerts suggested that they should “think about that” and come back to it in its closing submission.

The attempt by the Commission to introduce an “act of state” doctrine is a really surprising move. It seems to directly contradict the wording of the treaties, as is particularly evident when it comes to the jurisdiction of the CJEU over the regulation. It also seems strange for the Commission, who has generally been welcoming judicial review in the CFSP field, to invite the CJEU to limit its jurisdiction. But its view on the CJEU’s jurisdiction to review the regulation is only half the story…

CFSP JURISDICTION OF THE CJEU – THE CFSP DECISION

Since it is the regulation that actually implements the sectoral measures, and everyone seem to agree that the CJEU in principle has jurisdiction over it, one might wonder why discuss the jurisdiction to review the CFSP decision at all? According to Rosneft it was necessary for the CJEU to also review the CFSP decision because even if the regulation was struck down the “member states would still be obliged to implement the decision” under TEU Article 29.

The legal basis for conducting such a review was, according to Rosneft, to be found in the general principles of EU law and the Charter of Fundamental Rights (CFR) Article 47. Rosneft submitted that the CJEU had jurisdiction to review any measure with legal effect for third parties.

Given the slightly restrictive stance on jurisdiction taken by the Commission with regard to the regulation, it might surprise some that the Commission argued that the CJEU does have jurisdiction to review the CFSP decision. However, this is actually a logical consequence of the “act of state” doctrine the Commission proposed: jurisdiction should be delimited according to substance, not form.

What matters is thus not whether the impugned provisions are contained in a CFSP decision or in a regulation implementing that decision, but whether the impugned provisions can be said to be “acts of state”. If they cannot be regarded as “acts of state”, then the CJEU will have jurisdiction to review them. Since the CFSP decision in the present case is almost word-for-word identical to the regulation, the Commission submitted that the CJEU would have jurisdiction to review significant parts of the CFSP decision.

The opposition to the “act of state” doctrine by the other parties applies equally to this context: neither the text, context, intention, or drafting history supports it. Compare to the limits on the Court’s jurisdiction on national police operations in Article 276 TFEU, and more clearly the limits on its review of sanctions against Member States in Article 269 TFEU, which indicate that where the drafters of the Treaties wanted to limit the Court’s jurisdiction to review the merits of measures, they did so expressly. Notably, TFEU Article 275(2) explicitly limits the review of restrictive measures “against natural or legal persons” – identical language to that found in TFEU Article 215(2), but not in 215(1). Sectoral measures, which are not against specific natural or legal persons, therefore seem to lie outside the ambit of CJEU jurisdiction. At least according to the treaty text. The Commission sought to get around this by arguing that TFEU Article 275(2) is only a reflection of a more general principle of EU law on access to justice.

While I personally agree that the Commission’s proposal is of a de lege ferenda nature, and should not be acted on by the CJEU, the idea of delimiting jurisdiction according to substance and not form is intriguing. It would alleviate the problem that is the (seemingly) very limited jurisdiction of the CJEU in CFSP matters, but at the same time give the member states something; a new doctrine to shield them from judicial scrutiny of the most sensitive foreign policy decisions. I think such a development should be considered when the constituent treaties of the Union are again revised (which might not be so far away, considering the recent #UKinEU deal). Although an “act of state” or “political questions” doctrine might be criticized for being vague, I am not sure whether the current delimitation of the CJEU’s jurisdiction is much clearer.

Finally, it is worth mentioning that the Commission also advanced an alternative argument, which it has also put forward in earlier, notably in its submissions in Opinion 2/13. There it suggested that the term “restrictive measures” must be read expansively, so as to cover all potential cases of human rights violations (similarly to what Rosneft argues in the present case). However, the CJEU might be read as rejecting that argument in Opinion 2/13, by stating that “it is sufficient to declare that, as EU law now stands, certain acts adopted in the context of the CFSP fall outside the ambit of judicial review” (para 252). In Rosneft the Commission is therefore presenting a new approach that leads to essentially the same result. It seems as if the Commission’s strategy is to argue for an expansion of the CJEU’s power over CFSP measures at every opportunity.

MAY THE CJEU REVIEW CFSP MEASURES IN PRELIMINARY RULING PROCEEDINGS?

If it is concluded that the CJEU has jurisdiction to review the CFSP decision, another jurisdiction snag appears. TFEU Article 275(2) – the Article one would presume that need to be interpreted expansively as to its field of application to cover CFSP decisions – only envisages actions for annulment, and makes explicit reference to the conditions laid down in TFEU Article 263(4). Textually this seems to preclude jurisdiction to give preliminary rulings. Rosneft argued that a “strained literal interpretation” was not necessary, and that the CJEU should take account of the underlying intention: to bestow upon it jurisdiction for (some) CFSP measures.

The Commission agreed with Rosneft as to the result, while also pushing its “act of state”-based theory of CFSP jurisdiction. Under the Commission’s theory the form of the proceedings does not matter. According to it TFEU Article 275(2) is merely an expression of (part of) a general principle of EU law. The consequence is that the CJEU also has jurisdiction to give preliminary rulings.

The Council and the member states disagreed firmly, and argued that the CJEU did not have jurisdiction to review CFSP measures in preliminary ruling proceedings. In doing so they mainly invoked the clear language of TFEU Article 275(2), and its unequivocal reference to TFEU Article 263(4).

Another question on the margins of this is the question of standing for Rosneft. If it brings an action for annulment under TFEU Article 263(4) it will probably be dismissed since the sectoral measures are not “of direct or individual concern” to Rosneft. This might sound strange, but EU lawyers will recognize that this language has been applied very restrictively by the CJEU since the judgment in Case 25/62 Plaumann v. Commission [1963]. While the Treaty of Lisbon introduced another ground of standing (regulatory acts of general application, if they were of direct concern and do not entail implementing measures), the CJEU has interpreted this narrowly too.

But one might question whether the standing rules in TFEU Article 263(4) actually do apply. Normally, litigants do not need to fulfill standing requirements in preliminary ruling proceedings, since the requests for a preliminary rulings are submitted by the domestic courts. Rosneft therefore argued that the standing requirements did not apply, while the member states and the Council argued that they did apply. I will not discuss this further here.

HOW SHOULD THE CJEU CONDUCT ITS JUDICIAL REVIEW?

If the CJEU finds that it has jurisdiction, whether to just review the regulation or also the CFSP decision, there are uncertainty as to how it should conduct its judicial review. Notably, the issue of judicial restraint was brought up by several parties, and also from the bench. The issue of judicial restraint is, conceptually speaking, clearly distinct from the issue of jurisdiction. Judicial restraint doctrines come into play when a court has decided that it has jurisdiction to conduct judicial review. It is a doctrine within substantive (usually administrative or constitutional) law laying down limitations on the intensity of the judicial review.

During the hearing this materialized in the form of a discussion of the scope of the CJEU’s review of the regulation, under the assumption that it lacks jurisdiction to review the CFSP decision. President Lenaerts and the AG pointed to the fact that under TFEU Article 215 it is a precondition for enacting sanctions regulations that a prior CFSP decision exists. They therefore wanted to know whether this meant that the CJEU could review the regulation in light of the CFSP decision – even if jurisdiction over the latter is lacking.

The Council at first did not provide a satisfactory answer, and only stated that there must be a “valid CFSP decision” before a regulation could be enacted. After much back and forth the Council finally admitted that its argument was that the CJEU should not conduct such a review, and that it understood TFEU Article 215 as only requiring a CFSP decision. The United Kingdom took a similar position, explicitly referring to the doctrine of judicial restraint as it has been developed in EU (case-)law. It should also be added that the Commission’s submission on jurisdiction – the “act of state” doctrine – could equally well function at the substantive level, as a norm of judicial restraint.

WHAT IS THE ROLE OF THE COURTS OF THE EU MEMBER STATES?

The role of the courts of the EU member states was a recurring topic throughout the hearing. That is because, if the CJEU lacks jurisdiction to review the CFSP decision, the relevant courts for settling such disputes are those of the Member States. This follows from TFEU Article 274, according to which the Union loses its jurisdictional immunity in cases where the CJEU lacks jurisdiction. A slew of issues may be, and was, raised in this regard. I will only touch upon a couple of them.

First, the Commission argued that its proposed “act of state” doctrine had to extend to Member State courts reviewing e.g. CFSP decisions. This was opposed by all the other parties that commented on the issue.

A second issue was the risk of diverging results in different member states’ courts. Most parties acknowledged this risk, but pointed out that this was a natural consequence of the system of jurisdiction laid down in the Treaties. Some also noted that it might be alleviated through judicial dialogue between the national courts. In addition, Germany made the surprising argument that the Commission could police diverging practices by initiating infringement proceedings. President Lenaerts reacted strongly to this suggestion, asking the German agent whether he “was serious” in suggesting this, and urged him to reconsider whether Germany really intended to make that argument. The agent for Germany promised to get back to the issue in his reply, but according to my notes he did not do so.

A third, interesting submission under this heading came from France. Despite being opposed to the Commission’s EU-level “act of state” doctrine, it suggested that domestic courts should be able to apply the “act of state” doctrine applicable within their jurisdiction when reviewing e.g. CFSP decisions. Such a doctrine does exist in French law (“acte de gouvernement“). Judge Rosas asked what the consequence of this argument would have for the right to effective legal protection, since it seems to suggest that a litigant may neither be able to challenge a CFSP decision before Union courts nor domestic courts of (some) member states. France replied that the ECtHR has accepted such restrictions in its case-law. The United Kingdom, on the other hand, submitted that domestic doctrines limiting legal protection must be set aside. When questioned on the matter, the Council took a stance in between these two extremes, stating that it was “reluctant to give direction to domestic courts” while at the same time pointing to the fact that Article 47 of the EU Charter requires access to a court.

As I was not aware of the French “acte de gouvernement” doctrine before this week’s hearing, some pieces of another puzzle clicked together for me. During the negotiations of the EU accession to the ECHR France was one of the key proponents of a rule in the accession agreement that would attribute all conduct in Common Security and Defence Policy (CSDP) missions to the troop-contributing countries – while excluding responsibility for the Union as an organization. At the time I found it a bit strange that France wanted to, essentially, increase its own responsibility in this manner. But this all makes more sense when one considers that the attribution of all conduct to French troops would make it possible for France to avoid judicial scrutiny of (military) CSDP missions altogether.

SUBSTANTIVE ISSUES

The hearing focused on questions of jurisdiction, standing, and the standard of review. This was because the CJEU had emphasized these points in its written questions to the parties before the hearing. Although the discussion of substantive issues was limited, two arguments presented by Rosneft deserve mention.

First, Rosneft submitted that the CFSP decision was legislative in nature, due to its detailed provisions that were generally identical to the regulation implementing the sanctions. As the adoption of legislative CFSP acts is prohibited under TEU Article 31(1) i.f., this would render the CFSP decision invalid. And since a valid CFSP decision is needed to enact a regulation under TFEU Article 215, the regulation would also be invalid. Against this it was argued that TEU Article 31(1) i.f. must be understood as dictating that no CFSP decision can be considered to be legislative. Consequently, even if it appears to be so, it is not a legislative act, and does not have the effects of a legislative act.

Second, Rosneft argued that the CFSP decision (and the regulation) violated international law – specifically the EU-Russia Partnership and Cooperation Agreement. In opposition to this argument the other parties submitted that the “essential security interests” exception in Article 99 of the agreement was triggered by the “serious international tension” following the situation in Ukraine. Indeed, the Council in its opening statement described the sanctions regime as “between words and war” and pointed out that Russia had chosen to enact its own restrictive measures instead of invoking Article 99 of the agreement.

Rosneft in turn attempted to counter this argument by pointing out that the Council did not state the reasons for why “essential security interests” exception applied, either in its original CFSP decision nor in any of the later amendments. In fact, even when questioned by the AG on this matter the Council failed to provide any real answer to why the Council found the provision to be triggered. The agent for Rosneft did a good job of pointing this out in his reply, and I think that there is a real chance that the failure to provide proper reasons may come back to haunt the Council when the judgment is announced.

CONCLUSION

As I have shown above, this case raises an array of interesting and important questions of EU law. That being said, it is usually so that a court confines itself to do what it is mandated to do: solve the dispute. A court generally avoids dealing with unnecessary, albeit interesting, questions. Particularly if they are difficult or disputed, as is the case here.

Still, I think the Rosneft case might provide a good opportunity for the CJEU to clarify some aspects of its CFSP jurisdiction. The way Rosneft has framed the case, and given the explicit question of CJEU jurisdiction over CFSP decisions in the referral from the High Court, the CJEU is left with little choice. As I see it the CJEU has three basic options: (1) to come out and say it has (some) jurisdiction over CFSP decisions; (2) review the regulation only, and in case of it being found invalid note that a CFSP decision cannot be legislative and thus need not be implemented in domestic law; or (3) reject jurisdiction over CFSP decisions altogether, only review the regulation, and say nothing about the consequences of its invalidity or the legal effects of the CFSP decision.

*Reblogged from: https://obykanalen.wordpress.com/2016/02/25/a-report-from-the-oral-hearing-in-case-c-7215-rosneft/

Barnard & Peers: chapter 5, chapter 25

Photo credit: carnegieeurope.eu

Freedom of expression and liability for Internet comments: a key new ECHR judgment

Lorna Woods, Professor of Internet Law, University of Essex

Should the providers of internet sites be liable for the comments which people make on them? The European Court of Human Rights had addressed this issue in important recent judgment: MTE v. Hungary.

Given the importance of intermediaries to the development of the internet, there are policy grounds for suggesting that intermediaries should not be treated in a manner analogous to a (knowing) publisher in the off-line environment, but should instead be provided with some level of immunity from suit in respect of the views of others.  Last year in Delfi (which I discussed here) the Grand Chamber of the European Court of Human Rights ruled that the holding of a newspaper portal liable for the comments of end users was not a violation of the freedom of expression, as guaranteed by Article 10 ECHR. That decision was much criticised.

The issue of the liability of an on-line newspaper for the comments of its readers has now come before the Court again. In this case, however, the Court’s chamber, while referring at a number of points in its judgment to the reasoning of the Delfi Grand Chamber, came to a different conclusion from that in Delfi. In so doing, has the Court departed as a matter of legal principle from its previous approach, or are the facts sufficiently different from Delfi so as to justify a different outcome on that basis?  Given this difference, MTE although not the first case on intermediary liability, is important in showing the development of the Court’s thinking in respect of the internet.

Facts

There are two applicants: a company which runs a news portal; and a non-profit organization, which is the self-regulatory body of the internet content providers in Hungary. Each carried a story on their respective web sites about the behaviour of an on-line estate agency, claiming it did not adhere to high consumer protection standards.  In response to the story, there were a number of comments from end users. The owner of the estate agency sites brought a civil action against the two applicants in respect of the original opinion and some of the comments in response to it. At this point the applicants removed the challenged content. The applicants argued that they were not responsible for third party comments. The highest national court disagreed even though, during the litigation process, various national courts adopted different approaches to reasoning and even outcome in this case.

Judgment

The European Court of Human Rights noted that there was no dispute that there had been an interference with the applicants' freedom of expression. The main issue before the Court was the justification for that interference under Article 10(2) ECHR. The Court re-capped the general principles applicable to such an assessment: lawfulness, legitimate aim and proportionality. While the national courts gave different reasons for the application of the law imposing liability, the Court nonetheless found that, given that the applicants were engaged in their activity professionally, they were in a position to assess the risks and that therefore the law on which the interference was based was sufficiently foreseeable to be regarded as lawful as required by Article 10(2). Looking at the other elements necessary to satisfy Article 10(2), the Court also accepted that the aim was to protect interests of others, and therefore legitimate. The crucial questions related to whether the finding of liability was 'necessary in a democratic society' and proportionate.

The Court re-iterated its case law in this area, noting that the test of 'necessary' related to 'a pressing social need' and highlighting the importance of the role of the press in a democratic society as watchdog, citing Delfi at least for the first point (paras 54-55). The Court emphasised the unique nature of the Internet as a source of information before going on to summarise its previous case law on the right to reputation as protected by Article 8. In essence, the rights are of equal weight, neither one nor the other takes priority and the outcome of a given case should be the same whether it is considered under Article 8 or Article 10.

Applying these principles to the facts, the Court held that both applicants should be treated analogously to the press, as they provided a forum for public debate allowing others to express their ideas (para 61). The Court then equated the applicants to publishers but noted that the duties and responsibilities that they assumed as such differed from that of traditional publishers because of the nature of the Internet, citing Delfi and highlighting the 'clearly unlawful' nature of the speech in that case (paras 62-63 referring to Delfi, para 113). The Court noted certain differences between the two cases. First, the speech was offensive rather than clearly unlawful. Second, the regulatory body did not have a profit motive.

Considering the balancing between rights, the Court was critical of the national courts' immediate acceptance of the fact that harm had arisen from the statements without further investigation, and noted that there was a difference between the reputational harm that can be suffered by an individual and that which is suffered by a company. Despite this concern, the Court went on to apply the principles laid down in case such as von Hannover II, Axel Springer and Hachette Filipacchi as to factors to be taken into account in balancing between Article 8 ECHR (the right to privacy) and Article 10. The Court then returned to Delfi to add that, given the intermediary role of the company, additional factors were relevant:

The context of the comments, the measures applied by the applicant company in order to prevent or remove defamatory comments, the liability of the actual authors as an alternative to the intermediaries' liability and the consequences of the domestic proceedings for the applicant company (para 69 citing 142-3 of the Delfi judgment).

While Delfi had involved hate speech, the court noted here that the same criteria would be relevant for assessing proportionality even when hate speech was not in issue.

The Court determined that the comments, relating to the malpractice of two large estate agents, were in the public interest. Moreover the comments were not gratuitous. The Court distinguished between the position of the news portal and that of the self-regulatory body, the latter being a forum for professional discussion rather than having a wide public audience. It also noted that the national courts paid no attention to the role that the applicants had played in generating the comments.  In the Court's view the national courts had paid inadequate attention to the role of the authors and the impact of their rulings on the applicants. It suggested that, while the domestic courts had found that in allowing unfiltered comments the applicants might have foreseen some difficulties with the content of the comments, this amounted to 'requiring excessive and impractical forethought capable of undermining the freedom to impart information on the Internet'.

Comment

The Court did not address the nature of the free speech rights which were the subject of the interference.  It did not have to because both sides accepted the point, though presumably the Court itself accepted the point.  There is an underlying question of whether those who are not speaking but providing a forum of facilitating the speech of others have expressive rights.  They clearly form part of the scope of freedom of expression when seen from the perspective of the speaker – in the same way publishers, museum and gallery curators do – but do they have free-standing rights?  This point has arisen before, for example in the Pirate Bay case, without much clarity being found as to why and to what extent any such right exists (see my analysis here). Pirate Bay was an admissibility decision, which may explain its brevity. 

Here at least we have some clarification of the point, albeit implicit. When applying the principles derived from its case law to the instant case, the Court ‘consider[ed] the nature of the applicants’ rights of expression in view of their role in the process of communication …’ and remarked that the applicants ‘provided forum for the exercise of expression rights, enabling the public to impart information and ideas’ [paras 60- 61].  The Court then equated the position of the applicants to that of the press [para 61]. 

While this gives us some starting point for assessing expression rights, this is still not clearly delineated.  What sort of forum needs to be provided for Article 10 to apply?  Remember, telecommunications and letters are protected by Article 8, indicating that at some point between internet social media platforms and internet access provisions there is a shift in protective mode, and one that shifts the focus of attention from the body providing the forum or mechanisms of communication to the primary speaker.  The linking of the forum to the role of the press seems to suggest that a key factor is the curating (rather than just moderating) function of the media in bringing stories to public attention for discussion.  The Court seems to be envisaging user comments almost in the vein of interviews on television, or letters to the editor:

the applicant’s liability is difficult to reconcile with the existing case-law according to which ‘punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so’ [para 79, citing Jersild, para 35].

Despite this, the Court’s concern also seems to be about the end-users ability to speak. The attitude is reflected in the Court’s later comment, that the imposition of liability on the applicants

‘may have foreseeable negative consequences on the comment environment of an Internet portal, for example by impelling it to close the commenting space altogether. For the Court, these consequences may have, directly or indirectly, a chilling effect on the freedom of expression of the Internet’ [para 86].

In this, we see reflections of the audience’s interests in much of the case law on journalism, which does not seem to go so far as to give audiences a right that is enforceable (see Akdeniz and contrast Cengiz.  As an aside, we might question whether the case of one news-based forum will affect the entire Internet, or whether the same reasons for protecting the forum which apply when topics of public interest are discussed apply also in the context of mundane and private matters. 

Re-focussing this question, we could ask the extent to which this reasoning protects all intermediaries, or whether the protection is limited to those which have a close connection with content.  This is particularly significant given that the Court has said that the principles applying to the press apply to MTE. Generally, the media attract a high level of protection, although in Delfi the Court focused on the duties and responsibilities of publishers rather than their rights, although it did recognize that the duties and responsibilities might differ from those of a traditional publisher {Delfi, para 113}. It also sought to limit its judgment narrowly rather than establishing principles for all fora [Delfi, para 116].

Accepting that a news portal in principle falls within Article 10, how did the Court distinguish Delfi? The answer seems to be in the weighting ascribed through the assessment of whether the restriction was ‘necessary in a democratic society’.  As in Delfi, the Court emphasizes that its role is not to re-make the decisions of the national courts but to assess whether the national courts carried out a due balancing between Article 8 and 10 (and it seemed unimpressed with the approach of the Hungarian courts – see para 88).  In this section of the judgment, we see multiple references to Delfi, as well as to the more general case law on Articles 8 and 10 in Axel Springer, von Hannover II etc. It is however questionable whether the Court refrained from second guessing the national courts in order to find a basis for the factual difference from Delfi. According to the Court, in Delfi the language used was clearly illegal, virtually hate speech, whereas here the speech was merely ‘offensive and vulgar’ (para 64).  While the Grand Chamber itself categorized the speech in Delfi as hate speech, the question is how clear the boundary is between that and the ‘offensive and vulgar’ in MTE. In Delfi, there is a single reference to a ‘sick Jew’, seemingly as a term of opprobrium, among many references to the person who is the subject of the story acting like a pig.  In MTE, one comment is translated as ‘people like this should go and s**t a hedgehog and spend all their money on their mothers’ tombs until they drop dead’ [at para 14].

Moreover there are instances where the Court confirms the approach in Delfi, and then justifies a different or narrower approach.  For example, at para 77, the Court first re-stated the approach in Delfi concerning the effects of defamation (referring to para 147 of that judgment) but then holds that the style of Internet communication reduces offence.

Finding that Hungarian courts had not sufficiently weighted freedom of expression and Article 8, the Court considered the notice and take-down regime. It re-stated the approach in Delfi and suggested that ‘if accompanied by effective procedures allowing for rapid response, the notice-and-take-down-system could function in many cases as an appropriate tool for balancing the rights and interests of all those involved’ [para 91, tracking the wording of Delfi, para 159]. The difficulty is that in endorsing the approach of the Grand Chamber, the Court has also endorsed the position that clearly unlawful speech (specifically hate speech) requires immediate action.  It is difficult to envisage a system that allows such immediate action that also does not also involve monitoring of all content. Yet, at para 82 of its judgment the Chamber criticizes the requirement for filters as ‘this amounts to requiring excessive and impracticable forethought capable of undermining freedom of the right to impact information on the Internet’.

One final point concerns the commercial motivation of the parties.  The Court had distinguished between the two applicants, but did not draw through the consequences of this distinction. The commercial motivation in Delfi had been a factor in the ultimate finding of no infringement.  This is somewhat worrying, as many intermediary services are provided, directly or indirectly, for profit. In the Concurring Opinion of Judge Kuris we find the following statement [para 3]:

… this judgment should in no way be employed by Internet providers, in particular those who benefit financially from the dissemination of comments, whatever their contents, to shield themselves from their own liability … for failing to take appropriate measures against these envenoming statements.  If it is nevertheless used for that purpose, this judgment could become and instrument for (again!) whitewashing the Internet business model, aimed at profit at any cost. [emphasis in original]

So while MTE tempers the approach in Delfi, it is not a ringing endorsement of intermediary safe harbor either.  Clearly the Court has not yet developed a coherent theory about the approach to take to intermediaries and there are clearly issues about the style of speech on the Internet and the balance of protection there. As Kuris noted, MTE is the first judgment post-Delfi but it will not be the last.

Photo credit: universitypost.dk

The final UK/EU renegotiation deal: legal status and legal effect

Steve Peers

Is the deal on renegotiation of the UK’s EU membership legally binding? If so, what does that mean exactly? In particular, is the deal ‘legally binding and irreversible’, as David Cameron had pledged? In part, that’s linked to the substance of the deal, which I have examined already in a post about the immigration (free movement) aspects. I will write later about the other aspects (sovereignty, Eurozone and competitiveness); and see also the analysis of the ‘red card’ for national parliaments by Katarzyna Granat here.

But in part it’s an issue about the very legal nature and legal nature of the deal itself. Some on the Leave said have already said that it’s not legally binding. So is it binding? And if so, what exactly is its legal effect in practice? I’ve addressed this already in an earlier post about the draft deal, but I’ll now update that analysis (recycling parts of it) to take account of the final deal.

The answer to those questions is complicated, because there are several different parts of the deal, taking different legal forms. For each part, the legal status depends on several different factors: when the text would be adopted; who would have to approve it; whether the EU courts have power to overturn it, and whether they are likely to do so; and whether the text could be repealed or amended in future. (I am assuming throughout that by ‘irreversible’, David Cameron meant irreversible without the UK’s consent).

This blog post looks first at the legal form of the agreement. Then I examine, based on prior experience, whether the EU can be ‘trusted’ to implement the draft deal. Finally, I provide, in one table, my assessment indication of the extent to which each of the parts of the draft deal are ‘legally binding and irreversible’, based on the factors mentioned above. (There’s a shinier version of this table on the ‘Full Facts’ website here).

Legal form of the main deal

The renegotiation deal takes the form of seven legal texts: a Decision of the EU Member States’ Heads of State and Government (the ‘draft Decision’); a Statement of the Heads of State and Government (which consists of a draft Council Decision); a Declaration by the European Council: and  four declarations by the Commission. Implicitly, it also includes three planned EU legislative proposals, all dealing with the free movement of EU citizens (the emergency brake on benefits, EU citizens’ non-EU family members and export of child benefit), which are referred to in these texts. The UK government will also table some domestic legislation linked to the renegotiation deal, but since those proposals have not appeared yet I won’t comment on them for now.

One important point before we continue: while the title of the deal refers to the UK only, none of the actual text of the deal applies solely to the UK. So it would apply to all Member States. That means it’s possible, for instance, that a proposal which the UK supports could be stymied by other Member States’ national parliaments (via the Council), using the new ‘red card’ for national parliaments objecting to EU proposals. It is possible, however, that the UK would be the only Member State aiming to implement some parts of the renegotiation deal, in particular the ‘emergency brake’ on benefits; and of course some of the existing opt-outs referred to in the deal only apply to the UK and one or two other Member States.

Let’s begin with the easiest parts of the deal (legally speaking): the planned EU legislation. We know the legal effect of EU legislation, once it’s adopted: it’s binding and directly applicable (in the case of the two planned Regulations on in-work benefits and child benefit exports), or binding as to the result to be achieved, leaving national authorities the choice of form and methods (in the case of the planned Directive on EU citizens’ non-EU family members). (See the definitions of EU legislation set out in Article 288 TFEU). The more difficult question here is the process. Can it be guaranteed that the proposals will: (a) be made; (b) be adopted; (c) not be struck down by the EU Court of Justice (CJEU); and (d) not revoked?

It’s up to the Commission to make proposals. The main Decision of Member States can’t bind the Commission (more on that below), but the deal includes three declarations by the Commission, announcing its intention to make these proposals. For those proposals to be adopted, they must be approved by the Council (by a qualified majority of Member States) and the European Parliament (by a majority of the vote, under most variants of the EU legislative process). Again, the Decision of Member States doesn’t bind the Council or the European Parliament. But the Council is made up of Member States’ ministers, and in the renegotiation deal the Member States commit themselves to supporting two of these three proposals (on child benefit and the emergency brake). It’s odd that there’s no parallel commitment as regards the third proposal (on EU citizens’ non-EU family members). The timing of these measures depends on how soon they would be adopted, although the Commission declares that it will table them after a ‘Remain’ vote, if there is one.

The renegotiation deal foresees that the new EU law creating an ‘emergency brake’ for EU workers’ in-work benefits would subsequently have to be implemented following a UK request to use it. It’s a bit vague about the exact details of this process, to avoid irritating the European Parliament, but it’s clear that the Council would decide on the UK application. The voting rule isn’t specified, but it would be legally dubious if the vote had to be unanimous on this (because it concerns an issue on which vetoes don’t apply). A Commission declaration states that the Commission is willing to make this implementing proposal; but there is no commitment from the Member States to support it. The timing would follow the adoption of the legislation on this topic: it would likely take at least one month for the UK’s request to be approved. 

So the real question is whether to trust the Commission and Council (ie the Member States); although it’s also notable that the Member States haven’t committed themselves to support all aspects of the deal in this area, but only some of it. I’ll return to that question of trust below, as regards the deal in general. But it doesn’t even arise as regards the European Parliament (EP) or the CJEU, as they are not bound by the deal. It remains to be seen whether the EP will object to some or all of the legislative plans (this might become clearer closer to the referendum date). The position of the CJEU would only be clear if a legal challenge reached it. That would most likely follow from a challenge by an individual to the implementation of the new legislation, after it’s adopted, via the national courts. So it would be some years away. I have discussed the possible challenges to the legality of the changes on free movement law in my separate post on those issues. For a summary of this analysis, see the table below.

Leaving aside the question of Court challenges, could the legislation be revoked or amended, after it was adopted? In principle, that is possible, using the same legislative procedure: proposal from the Commission, qualified majority in the Council, and support from the EP. So the UK could not veto this taking place. But implicitly the Commission’s commitment to make these proposals, and Member States’ commitment to support at least two of them, suggest this is not going to happen. Again, this comes back to a question of trust. 

The renegotiation deal also refers to Commission plans to issue ‘guidance’ on aspects of EU free movement law. This concerns part of the rules on EU citizens’ non-EU family members (part of those rules would be covered by a new law). There would also be ‘guidance’ on the issue of criminality of EU citizens. For the latter point, the Commission’s declaration states that it will ‘examine the threshold’ relating to expulsion of criminal EU citizens when the EU citizens’ Directive is revised in future. This is too imprecise to regard as a commitment.

Next, the draft Council decision on Eurozone governance. This measure can be adopted by the Council itself, as part of its powers to govern its own activity. It does not need to be proposed by the Commission, or agreed by the European Parliament. It is similar to an existing Council decision, which provides for delays in the vote if a sufficient number of Member States have qualms about them. Protocol 9 to the Treaties says that any changes to such rules must be discussed by consensus; arguably that means that the Decision could not be amended or repealed without the UK’s consent. However, it’s not clear if Protocol 9 applies to the decision on Eurozone governance. Since the draft Decision would not amend the rules of the Treaty on the adoption of legislation, but only provide for a delayed vote, it seems very unlikely that the CJEU would annul it.

In fact, it’s not even clear who would challenge it: the Member States support it as part of the deal; there seems little reason why an individual would challenge it in the national courts; and it would be hard for an individual to find a procedural route to challenge it in the courts anyway (the CJEU has ruled that procedural rules of the Council don’t give rise to individual rights). That only leaves the European Parliament, and this Decision doesn’t appear to be at the top of their concerns about the deal. Finally, as for timing, the renegotiation deal provides that the Decision will be adopted once a ‘Remain’ vote is notified (if there is one), with no further action necessary. The deal also provides for a Treaty amendment in future on this point; more on that below. 

Finally, the main part of the renegotiation deal: the Decision of Heads of State and Government. It takes the form of five sections, dealing first of all with the UK’s four main negotiating objectives: the Eurozone (section A); competitiveness (section B); sovereignty (section C); and EU free movement (section D). Section E includes rules on dispute settlement and entry into force.

First of all, it should be noted that the Decision is not EU law as such; it’s international law. It’s often described as a proposed act of the European Council, which is the EU institution consisting of Heads of State and Government. But that’s simply not correct: it’s an act of the Heads of State and Government as such, not the European Council (or any other EU institution). That distinction might sound like hair-splitting to non-lawyers, but it has practical legal consequences. (See also the opinion of the EU Council legal service on this Decision).

While the Decision is not described as a treaty, it could be regarded as a ‘treaty in simplified form’ (see the broad definition of a treaty in Article 2(1)(a) of the Vienna Convention on the Law of Treaties). Certainly the UK government is going to register it as an international treaty (see Articles 77-80 of that Convention). This form of legal act is not new to the EU: it was used in 1992, to encourage Danes to ratify the Maastricht Treaty, and in 2008, to encourage Irish people to ratify the Lisbon Treaty.

What are the distinctions between this Decision and EU law? First of all, while the Decision is binding (as confirmed by the conclusions of the European Council), since binding effect inherently follows from its status as a treaty, it is binding under international law, not EU law. Secondly, the Decision does not as such change EU law, although other elements of the overall deal would, when implemented: the planned legislation on free movement issues, and the Council Decision on Eurozone issues. The Decision also contains rules on the application of EU law in practice (namely, Member States’ voting in Council after a ‘red card’ is issued by national parliaments) and a commitment to amend the Treaties in future, as regards the Eurozone governance and the exemption of the UK from ‘ever closer union’.

Indeed, the Decision could not have changed EU law as such, without following the formal procedures to that effect set out in EU law itself. I discussed the issue of amending EU secondary law above, but the same is true of EU primary law (the Treaties). The prior Decisions relating to Denmark and Ireland did not change the EU Treaties, and they could not, because the CJEU had ruled that the Treaties could only be amended using the procedure set out within them, in the Defrenne II judgment. Like the prior decisions, the Decision specifies that it does not amend EU as such, but interprets it. This is consistent with CJEU case law, which accepted in the Rottmann judgment that the previous Decision on Denmark could be used to interpret EU law.

However, the Decision does include legal obligations for Member States as a matter of international law; this is fine as long as the particular obligations don’t conflict with EU law. In the event of any conflict, the primacy of EU law means that the latter takes precedence over the renegotiation Decision. But is there any conflict? This is a substantive question, and in any event where the renegotiation Decision calls for EU secondary law measures to be adopted (the free movement legislation, the Eurozone Decision) the real question is whether those measures would themselves breach the Treaties if adopted. I will examine whether there is any conflict with the Treaties as regards competitiveness and sovereignty in a subsequent post, but I will comment on one here: the commitment of Member States to block Council decision-making if a ‘red card’ is pulled by national parliaments, on the condition that national parliaments’ concerns are not addressed.

Andrew Duff has argued that this breaches EU law, because it infringes the powers of the European Parliament in decision-making. In my view, this is incorrect. A decision by the Council to stop discussing proposed EU legislation does not alter the Parliament’s role. It’s always open to the Council to stop discussing proposed legislation if there is insufficient interest in a proposal or for any other reason, and it’s not rare for it to do so. Every year, the Commission withdraws proposals because it has given up hope that the Council will ever agree to them (for the most recent such decision, see here). The EP can block proposed legislation too, where the ‘ordinary legislative procedure’ applies; it just does so less frequently than the Council.

A subtler argument is that this clause in the Decision in effect amends the Treaty (and so is therefore inapplicable due to the conflict with EU law) because it introduces a new voting rule in the Council without amending the Treaty to that effect. It’s more problematic than the new rule on delaying Council voting as regards Eurozone issues, since that latter rule doesn’t block the adoption of a proposal, and follows an existing secondary law precedent. However, as with a comparable clause in the ‘fiscal compact’ treaty, an agreement by Member States to coordinate their voting in Council does not amend the Treaties, whether it takes the form of an informal agreement (as it more often does) or a formal treaty to that effect. Even if this rule did breach EU law, how could the primacy of EU law be enforced in this context anyway? By a national court, or the CJEU, telling a Member State to vote a way it didn’t want to vote in the Council? This would be an unprecedented incursion into the relationship between national governments and national parliaments, which the Treaties recognise (in the Protocol on national parliaments) is a matter for national law alone to regulate.

As for the Treaty amendment process, it’s correct to say (as Andrew Duff does) that that the Treaty gives a role to the Commission and EP. But let’s not overstate that role: neither of them can block Treaty amendments, in most cases. The only exception is Treaty amendments which solely concern more majority voting, or more powers for the EP. But the renegotiation deal does not call for either of that special sort of Treaty amendment, but (implicitly) for the usual procedure to amend the Treaties.

Otherwise, the EP’s sole power is to insist that there has to be a fully-fledged ‘Convention’, with delegates from the EU institutions, national parliaments and national governments, to discuss proposed Treaty amendments. But the EP can’t set the agenda for the Convention, or determine its outcome. Anyway, that outcome is not binding upon the Member States, which then hold an Inter-Governmental Conference (IGC) to negotiate the final text – which the EP cannot reject. The result of that Convention will probably influence the outcome of the IGC, but doesn’t bind it.

What would actually happen, if a ‘Convention’ is established? The last Convention, in 2002-3, had a broad agenda, and in practice the EP was able to steer it toward a highly integrationist conclusion. But any Convention convened in (say) 2017 would now include a lot more national parliamentarians critical of the EU, from every perspective. They might well want to drive the Convention towards a stronger version of the ‘red card’ for national parliaments, as well as repatriation of powers from the EU. Anyway, the wording of the Treaty suggests that the agenda of the Convention is limited to the issues originally tabled for Treaty amendment.

So the real impediment to Treaty amendments is not at the EU level. Rather, it’s the risk of rejection in national parliaments (and occasionally referendums), with a further long-stop risk of rejection by national constitutional courts. It’s impossible to guess at this point what would happen to the Treaty amendments foreseen by the renegotiation Decision at national level. So there is no legal certainty that those Treaty amendments would definitely be approved.

On the other hand, the renegotiation Decision itself does not need national parliamentary approval, at least as a matter of EU law (whether some Member States’ law might require it is a separate question). Nor does it need any sort of approval from any of the EU’s institutions – although the planned legislation referred to in the Decision does, of course, need those institutions’ involvement. Since it’s not part of EU law, the validity of the renegotiation Decision could not be challenged directly before the CJEU, although it is possible that a national court could ask whether national implementation of EU based on the renegotiation Decision was in conflict with EU law.

As for the timing, the renegotiation Decision was apparently already formally adopted on 19 February. The text of Section E of the Decision says it will come into force automatically as soon as a ‘Remain’ vote (if there is one) is notified. The Decision is irreversible in the sense that the UK government has to consent to amend it or repeal it; this is explicitly confirmed by the European Council conclusions. There is no provision for a Member State to denounce it, or any other indication that it’s possible to do so; therefore it is subject to the general rule in Article 56 of the Vienna Convention that a treaty cannot be denounced in the absence of a clause to that effect.

However, the distinction between the renegotiation Decision and EU law does mean that there is a gap in the Decision’s enforceability. Section E of the Decision refers to bringing a dispute between Member States about the application of the Decision before the European Council. But unlike the fiscal compact Treaty, there is no provision on bringing a dispute before the CJEU, which could then impose fines. So despite the binding nature of the renegotiation Decision, there is no clear mechanism for making it stick. This brings us back to the issue of trust, discussed further below.

Finally, some commentators on my previous blog posts on this issue raised the question of whether Heads of State and Government could still act outside the framework of the EU Treaties, given that the Treaty of Lisbon upgraded the status of the EU institution in which they meet – the European Council. In my view, that change in EU law did not transfer the capacity of Heads of State and Government to act to the European Council, except where the Treaty amendments did that expressly (for instance, as regards appointments to the European Central Bank). This follows from the principle of ‘conferred powers’ set out in the Treaties: in the absence of any power for the European Council to adopt anything like the renegotiation Decision, it couldn’t have adopted it.

Can the EU be trusted?

As noted already, the EU has agreed Decisions like the renegotiation Decision twice before, as regards Ireland and Denmark. In those Decisions, the EU promised a Treaty amendment to Ireland, and delivered it in the form of a protocol several years later. It didn’t expressly promise a Treaty amendment to Denmark, but delivered one anyway, as part of the Treaty of Amsterdam (another Protocol, attached to the Treaties, which has since been amended). It’s sometimes suggested that the EU tricked Denmark because the CJEU later ignored the Danish opt-out of EU citizenship. But this is a myth: the fact is that Denmark never opted out of EU citizenship. The 1992 Decision on Denmark simply contained clarifications relating to the meaning of EU citizenship (see Section A of that decision), not any form of opt-out.

Another Treaty amendment (in the form of a protocol), relating to the legal effect of the EU Charter of Fundamental Rights, was promised to the Czech Republic if it ratified the Treaty of Lisbon. In this case, there was no Decision of Member States’ Heads of State and Government, but the draft Protocol and the promise were set out in conclusions of the European Council. The Protocol was subsequently formally proposed, but it was not pursued after a new Czech government withdrew the previous government’s request. It’s possible that the Czech government decision was influenced by the European Parliament, which had voted against the draft Protocol. But as noted above, the EP does not have a veto over Treaty amendments: indeed, even after the EP's objection, the Council recommended that the Treaty amendment process get underway. 

The most the EP can do to stop Treaty amendments is to demand that a 'Convention' be established to discuss them. But remember: the Convention process does not give the EP any kind of veto over a Treaty amendment either. Ultimately a subsequent Inter-Governmental Conference decides what the final text of those Treaty amendments will be. So if the Czech government had really wanted to insist upon the adoption of its Protocol, it would have got it in the end.

For those who really don’t trust the EU to deliver on the renegotiation package, there’s always one further option. The UK government could commit itself, perhaps in the form of an Act of Parliament addressing the renegotiation deal, that it will report regularly on the implementation of that deal. If the key aspects of the deal are not in fact implemented for any reason, and there is no prospect that they will be, it would, as I’ve argued before, be reasonable to argue for another referendum.

Overview: is the renegotiation deal legally secure?

It follows from the above that the renegotiation deal is binding – and anyone who says otherwise (without clarification) is just not telling the truth. But there are two significant caveats to that: (a) parts of the deal, concerning the details of the changes to free movement law and Treaty amendments, still have to be implemented separately; and (b) there are limits to the enforceability of the deal.

The following table lists the binding elements of the renegotiation deal and summarises how enforceable they are and whether they need further implementation (and if so, what exactly this entails).

Decision of Heads of State and Government (in general)

Binding: in international law

In effect: after Remain vote notified

Further approval needed: No, unless national law requires parliamentary approval in some States

CJEU vulnerability: Zero; although CJEU might disagree with some interpretations of EU law

Reversible without UK consent: No

Commitment to amend treaty

Binding: in international law

In force: after Remain vote notified

Further approval needed: Yes, from national parliaments and possibly electorates; Commission, European Parliament have non-binding role in Treaty revision

CJEU vulnerability: Zero; although challenges under national constitutions are possible

Reversible without UK consent: No

Commitment to apply ‘red card’ for national parliaments

Binding: in international law

In force: after Remain vote notified

Further approval needed: No

CJEU vulnerability: Low

Reversible without UK consent: No

Council Decision on voting on financial issues

Binding: in EU law

In force: after adoption of this Decision, on date that Remain vote is notified

Further approval needed: Council has to adopt; no role for any other EU institution or national parliaments

CJEU vulnerability: low

Reversible without UK consent: No (arguably)

Legislation on free movement issues (3 measures)

Binding: in EU law

In force: after proposals tabled and adopted, which is due after Remain vote is notified

Further approval needed: Yes. Commission proposals (political commitment to make them); Council approval (political commitment from Member States to support 2 proposals); European Parliament (position unknown)

CJEU vulnerability: Low-medium for 2 proposals (family members, child benefit); High for emergency brake

Reversible without UK consent: Yes

Photo credit: www.leftfootforward.org

Barnard & Peers: chapter 2, chapter 3