Saturday, 25 May 2019

What might have happened in an alternate universe: the EU (Withdrawal Agreement) Implementation Bill (‘WAB’)

Professor Tamara Hervey, University of Sheffield, and Professor Steve Peers, University of Essex

People who voted for a ‘coalition of chaos’ with Ed Miliband in 2015 sometimes imagine the goings-on in the ‘Miliverse’ – a parallel universe where Ed Miliband won the general election that year, and where the main debates in British politics are about bin collections and bus routes, rather than Brexit. With yesterday’s resignation of the Prime Minister, we can imagine the ‘Mayverse’ – a universe where Mrs May either held off calling an election, or held it and won the large majority she was hoping for, or had successfully pursued the art of compromise that she referred to in her resignation speech.

The latest big development in the ‘Mayverse’ would have been the Bill implementing the EU/UK Withdrawal Agreement. In our universe, on 15 May 2019, the UK government had announced that it would publish this Bill in ‘early June’.  This week the Prime Minister, before resigning, set out the main points of the Bill. Of course, her resignation, and the earlier news that the Conservative/Labour talks have failed, makes this much less likely.  However, in post-EU referendum politics, many futures are possible, including ones we might not foresee.  A lawyers’ job is to make sense of the legal texts that seek to express political agreements.
So this blog post considers some of the possibilities for one of the key elements of the EU (Withdrawal Agreement) Implementation Bill (or ‘WAB’ as it has come to be known) that would have been tabled in the Mayverse, and might yet be tabled in our universe: how is the UK going to render its obligations under the EU/UK Withdrawal Agreement into domestic law? (Other key elements are considered here.)

Available information at present

At this time, there is no text of the EU (Withdrawal Agreement) Implementation Bill in the public domain. What is available is the White Paper on Legislating for the Withdrawal Agreement, from July 2018, and the EU/UK Withdrawal Agreement itself, as well as the documents that surround it, such as the Preliminary Joint Report from the negotiating teams, from December 2017.
Only two paragraphs of the White Paper explicitly address the WAB.  One (para 148) simply says that if Parliament approves the Withdrawal Agreement, government will bring forward the WAB (see also para 4 which says government will only do this once the Withdrawal Agreement is approved by Parliament).  The other (para 149) states:

‘As set out in the preceding chapters of this paper, the Bill will be the primary means of implementing the Withdrawal Agreement in UK law, to ensure the Government meets its international obligations as set out in the treaty, …’

This makes it sound like the WAB would have treated the Withdrawal Agreement as ordinary international law.  This is not what the text of the Withdrawal Agreement suggests.  Its Article 4 provides:

‘(1) The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as they produce within the Union and its Member States. Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law.
(2) The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation.
(3) The provisions of this Agreement referring to Union law, or to concepts or provisions thereof, shall be interpreted and applied in accordance with the methods and general principles of Union law.
(4) The provisions of this Agreement referring to Union law, or to concepts or provisions thereof shall in their interpretation and application be interpreted in accordance with the relevant case law of the Court of Justice of the European Union handed down before the end of the transition period.
(5) In the interpretation and application of this Agreement, the United Kingdom’s judicial and administrative authorities shall have due regard to relevant case law of the Court of Justice of the European Union handed down after the end of the transition period.

Article 4 WA thus embodies key principles of EU law: direct effect (enforceability of rights by individuals before domestic courts); primacy/supremacy (‘disapplication’ of inconsistent domestic law); and consistent interpretation with both the methods of EU law, and its ‘general principles’ (which of course include fundamental human rights, as (now) set out in the EU Charter and interpreted by the CJEU).  The WA sees itself as almost a species of EU law, and not as an ordinary EU international agreement.  At least the direct effect and supremacy aspects of that interpretation are reflected in the December 2017 Preliminary Joint Report (para 36), which states:

“Once this Bill has been adopted, the provisions of the citizens' rights Part will have effect in primary legislation and will prevail over inconsistent or incompatible legislation, unless Parliament expressly repeals this Act in future.”

It almost goes without saying that all of these obligations would have been political dynamite in the contemporary UK context.

How would the WAB have gone about the tricky task of implementing the UK’s obligations under the Withdrawal Agreement ‘in primary legislation’ (as required in Article 4 (2) of the Withdrawal Agreement)? The following is a summary of possible approaches and some of their implications.

Repeat the wording of the European Communities Act 1972

One possible approach would have been to use the wording of the European Communities Act (ECA) 1972.  To do so would have meant the continued supremacy and direct effect of law agreed between the UK and the EU (that is, the Withdrawal Agreement).  It would use a ‘tried and tested’ legal method, given that the ECA has in effect accommodated those concepts in the UK’s domestic constitutional system for over forty years, even if constitutional lawyers disagree on exactly how it does so.  In effect, this approach would create a new source of law in the UK’s constitution: that of ‘Withdrawal Agreement law’, in the same way that the European Communities Act 1972 is, in the words of the UK Supreme Court in Miller, para 65, the ‘conduit pipe’ by which EU law becomes ‘an independent and overriding source’ of UK law.  This new source of law would be in addition to the new source(s) of law (‘retained EU law’ of various types) which will be created by the EU (Withdrawal) Act 2018, when it comes fully into force.

The benefits of this approach are that it secures compliance with the provisions of Article 4 of the Withdrawal Agreement.  Further, there is significant jurisprudence, including from the House of Lords and Supreme Court, on the meaning and effect of the relevant parts of the European Communities Act 1972. In particular, the Factortame ruling confirms that domestic legislation, irrespective of its date, that cannot be consistently interpreted with directly effective, validly adopted EU law, must be ‘disapplied’. This approach thus entails significant legal certainty and clarity.

The detriments, however, include the complexities associated with yet another new source of law, a point made by Mark Elliott in 2017.  Further, as Elliott notes, this approach would appear inconsistent with the intention of the EU (Withdrawal) Act to expunge directly effective EU law per se from the UK’s legal systems.  Moreover, while the ECA might be able to work ‘constitutional magic’ with EU law, whether it can do so with an ‘ordinary treaty’ (if we think of the EU/UK Withdrawal Agreement as such) is far from certain.

EU/UK Withdrawal Agreement as ‘ordinary’ international law that gives human beings rights

An alternative model is to consider the EU/UK Withdrawal Agreement as ‘ordinary’ international law, or, perhaps better, as international law that gives human beings rights.  The key analogy here is with the European Convention on Human Rights and the Human Rights Act 1998.  Although in principle in the UK’s legal systems, domestic legislation takes precedence over conflicting international treaties, courts understand themselves to be under an obligation to interpret domestic legislation consistently with international treaties if possible, on the basis of a presumption that Parliament intends to comply with the UK’s obligations in international law.  

The obligation permits the UK’s courts – particularly its Supreme Court – to stray from the explicit language of a statute, and even from Parliament’s apparent intention when adopting that statute, as seen for instance in Ghaiden v Goden-Mendoza.  Of course, it is going to be far from easy for domestic courts to discern the intentions of Parliament when adopting the WAB, and so textual interpretation may well be more important in practice here.  The Human Rights Act 1998, sections 2 and 3, require that domestic courts must interpret domestic law ‘in a way which is compatible with’ ECHR rights and must ‘take into account’ decisions of the ECHR’s institutions whenever the domestic court considers it to be relevant to the instant proceedings.  Similar wording in the WAB could include decisions about the effects of the Withdrawal Agreement (for instance its direct effect or primacy) made by EU institutions.  But, unlike the ECA approach, such wording does not require ‘disapplication’ of domestic law if consistent interpretation turns out to be impossible.
This approach would also involve certainty and clarity.  However, it would potentially fail to fulfil the UK’s obligations under the Withdrawal Agreement in full.

Use the wording of the Withdrawal Agreement

A third approach would be to adopt a form of words that explicitly indicates intention to comply with both the letter and spirit of the Withdrawal Agreement, by using the words of its Article 4 (1):

‘shall produce in respect of and in the United Kingdom the same legal effects which they produce in the Union and its Member States. Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law’.

This approach creates less certainty as there is, obviously, no jurisprudence on which provisions of the Withdrawal Agreement meet the conditions for direct effect.  There is no universal rule in EU law as to direct effect of provisions of treaties to which the EU is a party: it is dependent on the context, aims and objectives of the treaty concerned.  In the EU’s legal order, the threshold test for direct effect is higher for international agreements to which the EU is a party than it is for other sources of EU law: the nature of international law differs from other EU law in this respect.  However, in this instance, there is a strong argument to the effect that at least the part of the Withdrawal Agreement on citizens’ rights, which mirrors directly effective provisions of EU law, meets the conditions for direct effect.  Whether this is the case for other provisions, such as, for instance, those on data protection, is a different matter.

Alternatively, or in addition, the EU (Withdrawal Act) Implementation Bill could adopt the wording of WA Article 4 (2), by requiring ‘judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions’.  This would have the benefit of compliance with the Withdrawal Agreement obligations.  Whether the UK courts would interpret the obligation as identical to that under the European Communities Act 1972, given that the UK would no longer be a Member State of the EU, would potentially be a moot point, and some have argued that it might be ‘constitutionally impossible’.  Thus this position offers less legal certainty than the wording of the European Communities Act would bring.

Problems with any approach

Mike Gordon is right to point out that any of these approaches is of course vulnerable to the WAB itself being repealed.  But equally, as he says, any of them, and especially the ECA or WA wording approaches would constitute a significant example of Parliament seeking to constrain its powers and in effect to bind its successors.

The Withdrawal Agreement seeks to secure the position of EU-27 citizens in the UK (and vice versa).  Its effects, particularly as regards those citizens, will last long beyond the transition period.  The WAB would somehow need to secure these rights from interference not only from future UK governments, but also from future legislation.  While the UK is a Member State of the EU, the ECA effectively does so.  The WAB would need to do so without the underpinnings of EU membership: whatever approach it takes will be unlikely to satisfy those who are sceptical about securing citizens’ rights in the post-Brexit future.  As Paul Daly has pointed out, it is not difficult to imagine UK legislation discriminating against EU citizens.  Outside of EU law, the UK’s constitution does not have a tried and tested formulation for withstanding the normal lex posteriori rule of statutory interpretation.

These concerns would equally be relevant if the Bill contained provisions on the future UK/EU relationship, or as regards any parallel legislation dealing with that relationship. The Prime Minister had planned to table both: rules on a parliamentary mandate for the negotiations, and a Workers’ Rights Bill. Either way, it’s not true to say, as is sometimes claimed, that Boris Johnson (or whoever is the next Prime Minister) could just “rip up” such guarantees: it would require a parliamentary majority to do so. A watered-down version of the employment and environmental law guarantees that the opposition was seeking would nevertheless be ensured by the withdrawal agreement backstop.  However, the uncertainty attached to the prospect nevertheless was surely a factor in dissuading the opposition parties from agreeing to Mrs May’s proposals.

Final thoughts: WAB applied in first instance courts and tribunals

Ultimately, it does not matter so much exactly what the WAB says, but more how it is interpreted.  Here, of course, the decisions of the UK’s appellate courts will be crucial, as has been the case with the ECA and Human Rights Act.
However, we should not lose sight of the first-instance decision-making that will precede any such rulings.  It is this first instance decision-making – in immigration contexts, primarily, but also in employment contexts and perhaps many others – which will determine the real-life position of the human beings affected by Brexit, whose position the EU/UK Withdrawal Agreement seeks to protect as much as possible. 

One final sobering thought.  First instance judges in the UK respect the doctrine of Parliamentary sovereignty, and regard themselves at the service of the will of Parliament, as expressed in legislative text.  Judicial training includes – obviously – regular updates as legislation changes.  If the WAB were ever tabled, it might be enacted in record time.  But the WAB text has not even been released.  No one – including those who train the UK judiciary – has had any time to consider its meaning or effects.

Barnard & Peers: chapter 27
Photo credit: Medium

Friday, 17 May 2019

Facebook, defamation and free speech: a pending CJEU case

Preliminary Notes on the Pending Case Glawischnig-Piesczek v. Facebook Ireland Limited

Dr Paolo Cavaliere, University of Edinburgh Law School,


In the next few months the Court of Justice of the European Union is expected to deliver a decision with the potential to become a landmark in the fields of political speech and intermediary liability (the Advocate-General’s opinion is due June 4). In fact the Court will have to render its opinion on two intertwining yet distinct questions: first, the case opens a new front in the delineation of platforms’ responsibility for removing illegal content, focusing on whether such obligations should extend to content identical, or even similar to other posts already declared unlawful. Secondly, the decisions will also determine whether such obligations could be imposed even beyond the territorial jurisdiction of the seised court. What is at stake is, in ultimate analysis, how much responsibility platforms should be given in making proactive assessments of the illegality of third-party content, and how much power courts should be given in imposing their own standards of acceptable speech across national boundaries.

Summary of the case

The plaintiff is a former Austrian MP and spokeswoman of the Green Party who – before retiring from politics – was reported as criticizing the Austrian Government’s stance on the refugee crisis in an article published by the news magazine in April 2016. A Facebook user shared the article on her private profile along with her own comment, which included some derogatory language. In July, the plaintiff contacted Facebook and requested the post to be removed, only for the platform to decline the request as it did not find the post in breach of its own terms of use nor of domestic law. The plaintiff then filed an action for interim injunctive relief seeking removal of the original post, and of any other post on the platform with ‘analogous’ content. After the Commercial Court of Vienna found the post unlawful, Facebook proceeded to remove it.

However, the Court considered that Facebook, by failing to remove the original post on the plaintiff’s first notice, was not covered by the exemption from secondary liability and ordered the platform to remove any further post that would include the plaintiff’s picture alongside identical or ‘analogous’ comments. The Higher Regional Court of Vienna then found that such an obligation would amount to an obligation of general monitoring on Facebook’s part and removed the second part of the injunction, while upholding that the original post was manifestly unlawful and should have been removed by the platform following the first notification from the plaintiff. The Higher Court also confirmed that Facebook should remove any future posts that would include the same derogatory text alongside any image of the plaintiff. Facebook appealed this decision to the Austrian Supreme Court.

The Court referred to the CJEU two main ranges of questions:

- First, whether it would be compatible with Article 15(1) of the E-commerce Directive an obligation for host providers to remove posts that are ‘identically worded’ to other illegal content. In case of positive answer, the Court asks whether this obligation could expand beyond identical content and include content that is analogous in substance, despite a different wording. These are ultimately questions concerning the responsibility that platforms can be given in making their own assessment of what content amounts to unlawful speech, and what are the limits of “active monitoring”.

- Second, whether national courts can order platforms to remove content only within the national boundaries, or beyond (‘worldwide’). This is a question concerning the admissibility of extra-territorial injunctions for content removal.

Analogous content and active monitoring

To start with, it needs to be clarified that the dispute focuses effectively on a case of political speech, only formally concerns a case of defamation. The post on Facebook was considered by the Austrian court in breach of Art 1330 of the Austrian Civil Code, which protects individual reputation. However, the status of the plaintiff, who served as the spokeswoman of a national political party at the time, gives a different connotation to the issue. Established case-law of the European Court of Human Rights (Lingens v. Austria, 1986; Oberschlick v. Austria (no. 2), 1997) has repeatedly found that the definition of defamation in relation to politicians must be narrower than usual and the limits of acceptable criticism wider, especially when public statements susceptible of criticism are involved. In this case, the plaintiff had made public statements concerning her party’s immigration policy: the circumstance is relevant since the ECtHR traditionally identifies political speech with matters of public interest and requires interferences to be kept to a minimum. By established European standards the impugned content here amounts to political commentary, and the outcome of the case could inevitably set a new standard for the treatment of political speech online.

While intermediaries enjoy a series of immunities under the E-commerce Directive, which also notably established a prohibition for state authorities to impose general monitoring obligations, the 2011 Report of the Special Rapporteur to the General Assembly on the right to freedom of opinion and expression exercised through the Internet clarified that blocking and filtering measures are justified in principle when they specifically target categories of speech prohibited under international law, and the determination of the content to be blocked must be undertaken by a competent judicial authority. A judicial order determining the exact words (‘lousy traitor’, ‘corrupt oaf’, ‘fascist party’) may be an adequately precise guidance for platforms to operate, depending on how precise the contours of the order are.

To put the question in a context, the requirement to cancel ‘identical’ content marks the latest development in a growing trend to push platforms to take active decisions in content filtering. It cannot be neglected that the issue of unlawful content re-appearing, in identical or substantially equivalent forms, is in fact becoming increasingly worrisome. In a workshop held in 2017, delegates from the EU Commission heard from industry stakeholders that the problem of repeat infringers has become endemic to the point that, for those platforms that implement notice-and-takedown mechanisms, 95% of notices reported the same content to the same sites, at least in the context of intellectual property infringements. If rates of re-posting of content infringing other personality rights such as reputation can be considered anecdotally similar, then any attempts to clear platforms of unlawful content recall the proverbial endeavor of emptying the ocean with a spoon.

Nonetheless, the risk of overstepping the limits of desirable action is always looming. A paradigmatic example comes from early drafts of Germany’s Network Enforcement Law, which included a requirement for platforms to prevent re-uploads of same content already found unlawful – a provision that closely resembles the one at stake here. The requirement was expunged from the final version of the statute amid fears of over-blocking and concerns that automated filters would not be able, at the current state of technology, to correctly understand the nuances and context of content that is similar of equivalent at face value, such as irony or critical reference for instance.

The decision of the German law-makers to eventually drop the requirement – evidently considered a step too far even in the context of a statute already widely considered to hardly strike a suitable balance between platform responsibilities and freedom of expression – is indicative of the high stakes in the decision that the CJEU faces. A positive answer from the CJEU would mean a resurgence of this aborted provision on Europe-wide scale.

The idea of platforms’ monitoring of re-uploaded content is being gaining traction in digital industries for a little while now and is trickling down into content regulation. In the field of SEO, the concept of “duplicate content” defines content that has been copied or reused from other Web pages, sometimes for legitimate purposes (e.g. providing a mobile-friendly copy of a webpage), sometimes resulting in flagrant plagiarism. Yet definitions diverge when it comes to the criteria considered: while duplicate content is most commonly defined as ‘identical or virtually identical to content found elsewhere on the web’, Google stretches the boundaries to encompass content that is ‘appreciably similar’. Content regulation simply cannot afford the same degree of flexibility in defining ‘identically worded’ content, as the criterion of judicial determination required by the Special Rapporteur and the prohibition of general monitoring obligations in the E-commerce Directive exclude it.

In the area of copyright protection, it is in principle possible for service providers like YouTube to automatically scan content uploaded by private users and compare it to a database of protected works provided by rights-holders. In the case of speech infringing personality rights and other content-based limitations, discourse analysis is necessary to understand the context, and this kind of task would evidently amount to a private intermediary making a new determination on the legality of the speech.

The assessment of what amounts to unlawful speech rarely depends on the sole wording; context plays a fundamental role in the assessment, and that is all but a straightforward exercise. The European Court of Human Rights’ case-law includes several examples of complex evaluations of the local circumstances to determine whether or not an interference with speech would be justified.

For instance, in the case of Le Pen v. France (2010), the Court considered that comments, that could seem at face value derogatory towards a minority, needed anyway to be considered in the context of an ongoing general debate within the Country, and stressed that the domestic courts should be responsible for assessing the breadth and terms of the national debate and how to take it into account when determining the necessity of the interference. In Ibragimov v. Russia (2018), the Court noted that the notion of attack on religious convictions can change significantly from place to place as no single standard exists at the European level and, similar to political debates in societies, domestic authorities are again best placed to ascertain the boundaries of criticism of religions ‘[b]y reason of their direct and continuous contact with the vital forces of their countries’. The historical context is consistently taken into account to determine whether a pressing social needs exist for a restriction, and is enough to justify different decisions in respect to speech that otherwise appears strikingly similar.

For instance, outlawing Holocaust denial can be a legitimate interference in countries where historical legacies justify proactive measures taken in an effort to atone for their responsibility in mass atrocities (see Witzsch v. Germany (no. 1), 1999; Schimanek v. Austria, 2000; Garaudy v. France, 2003); whereas a similar statute prohibiting the denial of the Armenian genocide would be an excessive measure in a country like Switzerland with no strong links with the events in 1915’s Ottoman Empire (Perinçek v. Switzerland, 2015).

The intricacies of analysing the use of language against a specific historical and societal context are perhaps best illustrated by the Court’s minute analysis in Dink v. Turkey (2010). The Court was confronted with expressions that could very closely resemble hate speech: language such as ‘the purified blood that will replace the blood poisoned by the “Turk” can be found in the noble vein linking Armenians to Armenia’, and references to the Armenian origins of Atatürk’s adoptive daughter, were included in articles written by the late Turkish journalist of Armenian origin Fırat Dink.   The Court eventually came to the conclusion that it was not Turkish blood that Dink referred to as poison, but rather attitudes of the Armenian diaspora’s campaign which he intended to criticise. The Court built extensively on the assessment made by the Principal State Counsel at the Turkish Court of Cassation – who analysed all Dink’s articles published between 2003 and 2004 – in order to be able to ascertain whether these expressions amounted to denigrating Turkishness, and in what ways references to blood and the origins of Atatürk’s daughter amounted to sensitive subjects in Turkish ultranationalist circles and were susceptible to ignite animosity.

Not only social and political context matters, often it is precisely the use of language in a culturally specific way that forms a fundamental part of the Court’s assessment, with the conclusion that words alone have little importance and it is instead their use in specific contexts that determines whether or not they cross the boundaries of lawful speech. In Leroy v. France (2008), the Court went to great lengths in evaluating the use of the first person plural “We” and a parodistic quote of an advertising slogan to establish that a cartoon mocking the 9/11 attacks amounted to hate speech.  

Beyond the Court’s experience, examples of words that, though otherwise innocuous, can become slurs if used in a certain context abound: for instance, the term ‘shiptari’ in Southern Slavic-speaking countries to indicate Albanians especially in Serbia acquires a particularly nasty connotation as it was often used by Slobodan Milošević to show contempt of the Albanian minority in Yugoslavia. In Greece, the term lathrometanastes (literally ‘illegal immigrants’) has been appropriated and weaponised by the alt-right rhetoric to purposefully misrepresent the legal status of asylum seekers and refugees in an attempt to deny them access to protection and other entitlements, and now arguably lies outside of the scope of legitimate political debate,[1] to the point that it has been included in specialised research on indicators of intolerant discourse in European countries.

This handful of examples shows how language needs to be understood in the context of historical events and social dynamics, and can often convey a sense beyond their apparent meaning. While for domestic and supranational courts this seems challenging enough already, the suggestion that it would suffice for platforms to just check for synonyms and turns of phrases in a mechanical fashion is simplistic at best.

Extraterritorial injunctions

This plain observation calls into question whether it would be appropriate for the CJEU to answer in the positive the question on extra-territorial injunction. The Austrian Court’s order is in fact addressed towards an entity based outside the Court’s territorial jurisdiction and the order sought is to operate beyond the Austrian territory. To clarify, the novelty here resides not on the seising of Austrian courts, but rather on the expansive effect of their decision; the question concerns whether it would be appropriate for the effects of the injunction sought to extend beyond the limits of the national jurisdiction and effectively remove content from Facebook at the global level.

The Court of Justice has already interpreted jurisdiction in a similarly expansive way on a few occasions. In L’Oréal v. eBay (2011) the Court decided to apply EU trade-mark law on the basis that trade-mark protected goods were offered for sale from locations outside the EU but targeted at consumers within the EU. In Google Spain (2014), the Court decided to apply EU data protection law to the processing of a European Union citizen’s personal data carried out ‘in the context of the activities’ of an EU establishment even if the processor was based in a third country. The Court considered that delimiting the geographical scope of de-listings would prove unsatisfactory to protect the rights of the data subjects. A similar reasoning was the basis for deciding in Schrems (2015) that EU data protection law should apply to the transfer of personal data to the US.

One common element emerges from the case-law of the Court of Justice so far, in that the extraterritorial reach of court orders seems to be a necessary measure to ensure the effectiveness of EU rules and the protection of citizens’ or businesses’ rights. The Court has been prepared to grant extraterritorial reach when fundamental rights of European Union citizens were at stake (for instance in the context of processing of personal data) or when, in case of territorially protected rights such as trade marks, a conduct happening abroad was directly challenging the protected right within the domestic jurisdiction. It is dubious that the case at stake resembles either of these circumstances; in fact limiting political speech requires a different analysis.

A politician certainly is entitled to protect their own reputation, however when the criticism encompasses aspect of an ongoing public debate, the limits of acceptable speech broaden considerably: whether the speech falls within, and contributes to, an ongoing social conversation is very much a factual and localised consideration. Conversations that are irrelevant or even offensive within one national public sphere could very well be of the utmost relevance to communities based elsewhere, especially minorities or diasporas, who could find themselves deprived of their fundamental right to access information.

The CJEU has traditionally paid attention to connecting factors justifying extraterritorial orders. Following its own jurisprudence, it will now be faced with the challenge of identifying a possible connecting element to justify a worldwide effect of the Austrian Court’s local assessment. It needs to be recalled that a fundamental tenet of L’Oréal is the principle that the mere accessibility of a website is not enough a reason to conclude that a jurisdiction is being targeted, and it is for national courts to make the assessment. With the exception of the ECtHR that applies to date one of the most expansive jurisdictional approaches (Perrin, 2005), international policy-makers (such as for instance the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, the OAS Special Rapporteur on Freedom of Expression and the ACHPR Special Rapporteur on Freedom of Expression and Access to Information’s Joint Declaration on Freedom of Expression and the Internet of 2011, among others) and most courts favour a different approach inspired to judicial self-restrain, and put emphasis on a ‘real and substantial connection’ to justify jurisdiction over Internet content.

When personality rights are at stake, the recent CJEU decision in Bolagsupplysningen of 2017 (incidentally, derogating from the more established CJEU decisions in Shevill, 1995, and eDate, 2011) suggested that, when incorrect online information infringes personality rights, applications for rectification and/or removal are to be considered single and indivisible, and a court with jurisdiction can rule on the entirety of an application.

However, this precedent (already controversial in its own right) seems unfit to apply to this case. Bolagsupplysningen builds at least on the same rationale as in the other decisions of the CJEU mentioned above, that expansive jurisdiction can be justified by the necessity to guarantee the protection of citizens’ fundamental rights and not to see them frustrated by a scattered territorial application. In the case of political speech, where limitations need to be justified by an overriding public interest, such as typically public safety, the connecting element the Court looks for becomes immediately less apparent, as it cannot be assumed that the same speech would prove equally inflammatory in different places under different social and political circumstances. In other words, public order better lends itself to territorially sensitive protection.     

This taps into the assessment of the necessity and proportionality of the measure that decision-makers need to make before removing content. As a matter of principle, the geographical scope of limitations is part of the least restrictive means test: the ECtHR for instance in Christians Against Fascism and Racism (1980) considered that even when security considerations would outweigh the disadvantage of suppressing speech and thus justify the issue of a ban, said ban would still need a ‘narrow circumscription of its scope in terms of territorial application’ to limit its negative side effects.  Similarly, the 2010 OSCE/ODIHR – Venice Commission Guidelines on Freedom of Peaceful Assembly (as quoted by the ECtHR in Lashmankin v. Russia of 2017) consider that ‘[b]lanket restrictions such as a ban on assemblies in specified locations are in principle problematic since they are not in line with the principle of proportionality which requires that the least intrusive means’, and thus restrictions on locations of public assemblies need to be weighed against the specific circumstances of each case. Translated in the context of digital communications, the principle requires that the territorial scope of content removal orders is narrowly circumscribed and strictly proportionate to the interest protected. An injunction to remove commentary on national politics worldwide, as a result, seems unlikely to be considered the least intrusive means.


The decision of the CJEU has the potential to change the landscape of intermediary responsibility and the boundaries of lawful speech as we know them. By being asked to remove content that is identical or analogous, intermediaries will be making, in all other cases other than removing mere copies of posts that have already been found illegal, active determinations on the legality of third-party content. While the re-upload of illegal content is an issue of growing importance that needs to be addressed, consideration needs to be paid as to whether this would be an appropriate measure, as solutions borrowed from other fields like copyright protection can sit at odds with the specificities of content regulation and infringe on European and international standards for the protection of freedom of expression online.

Similarly, by granting an extraterritorial injunction in this case the Court would follow a stream that has been emerging in the last few years in privacy and data protection. Thanks to extraterritorial reach, the GDPR is rapidly becoming a global regulatory benchmark for the processing of personal data, which arguably benefits European Union citizens and protects their relevant fundamental rights. The same could not be true if this rationale would be applied to standards of legitimate political speech. It is questionable whether the EU (or any other jurisdiction) bears any interest in setting a global regulatory benchmark for content regulation. By restricting the accessibility of content beyond the national boundaries where the original dispute took place, it would restrict other citizens’ right to receive information without granting any substantive benefit, such as protecting public security, to the citizens of the first state.

Barnard & Peers: chapter 9
Photo credit: Slate magazine

[1] L. Karamanidou (2016) ‘Violence against migrants in Greece: beyond the Golden Dawn’, Ethnic and Racial Studies, 39:11, 2002-2021; D. Skleparis (2016) ‘(In)securitization and illiberal practices on the fringe of the EU’, European Security, 25:1, 92-111.

Wednesday, 15 May 2019

Strengthening democracy through public participation in policy-making: the EU, Germany, and the United States

Susan Rose-Ackerman (Henry R. Luce Professor of Law and Political Science, Emeritus, Professorial Lecturer in Law, Yale University) and Lena Riemer (Fox Fellow at Yale University; Doctoral candidate at Freie Universität Berlin)*

The European Union and some of its Member States are beginning to introduce enhanced public participation in executive regulatory processes at the same time as the United States, long the leader in such procedures, is cutting back by making the promulgation of rules increasingly difficult. We outline developments in the EU and Germany to provide a contrast with the US.

Regular elections for political representatives and referenda are the hallmarks of citizen participation in democratic politics, but both have serious limitations. The policies enacted by sitting governments may only weakly relate to constituents’ votes in elections. Votes in referenda may be based on misinformation, and the options may be posed in over-simplified or vague language. These difficulties have led critics of representative democracy to propose direct civil society input into policy-making. Yet, that goal is difficult to operationalize in any large polity. Constraints of time and space limit input, and many policies require esoteric technical data and a complex balancing of facts, values, and law.

As a result, some argue for radical decentralization to the grassroots to give citizens direct control over local policies and finances. In the ideal, the polity rejects hierarchy and decides on the basis of a consensus reached in a town meeting. Clearly, this is an unrealistic model for anything other than a small homogeneous community. Localism fails to accommodate policies with a large geographical extent, such as many environmental harms. Furthermore, even a local decision reached by consensus needs to be implemented and that will involve both a division of labor and a source of funds. Yet, the ideal of an involved citizenry advising on policy remains an aspiration behind many supporters of representative democracy.

Some, however, reject that ideal. To them, a chain of legitimacy operates where citizens vote for political parties and/or candidates. The winners take power and enact policies supported by the elected politicians. That chain is clearer in a parliamentary system than in the US presidential system or in the EU. In parliamentary systems such as Germany or the UK, a coalition of political parties forms a government and, with the nominal approval of the president or the monarch, appoints the prime minister/chancellor and the cabinet. In the US there is no single chain linking the government to the voters because the president may come from a different party than one or both houses of the legislature. The EU is also complex with the popularly elected parliament in a relatively weak position relative to the Commission and the Council, even if the legislature has gained increased clout in recent years.

However, even in a parliamentary system, the policy messages sent down the chain from the voters may be unclear and conflicting, especially in areas that are both technically complex and of deep concern to citizens. To us, this implies that mechanical efforts to justify controversial policies by reference to the chain of legitimacy are inadequate. Policymakers need to make direct connections to the citizenry on a policy-by-policy basis in all political systems. However, it is challenging to organize a policy-making process that is both responsive to public concerns and realistic about the difficulties of organizing participatory procedures in large, diverse polities.

This essay considers public input into executive branch policy-making in the EU, Germany, and the US. For large polities, consensus is obviously impractical. Open-ended invitations to provide input will, of necessity, feed into a political-bureaucratic structure where citizen input is only one factor in the final decision. Realistic public participation procedures both seek to elicit public input and articulate how it will feed into the ultimate policy choice. Courts may or may not be involved in reviewing the adequacy of public participation; some processes are only prudential exercises that do not give participants or potential participants legal rights.

We begin with the European Union because it has been frequently criticized for lacking sufficient public participation in policy-making. Over time, the role of the democratically elected parliament has increased, but the Commission still must initiate legislative proposals, and it plays a major role in the implementation of EU law. The call for more and early participation of the public was reignited in the aftermath of the 2008 financial and economic crisis and has grown stronger all over Europe. A consortium of administrative law professors established the ReNEUAL project to reform EU administrative law. One chapter of its model rules deals with rule-making and recommends a notice and comment process similar to the US model. However, so far, the EU has not adopted these recommendations.

In May, the citizens of the EU will have the right to vote once again for the European Union Parliament which represents 512 million people in 28 member states. European voter turnout has decreased since the first European elections in 1979. Less than 50% of the eligible citizens are expected to cast votes in the 2019 elections. The reasons for this decreasing turnout are various and multilayered, but one explanation is citizens’ disengagement from the EU because of the lack of opportunities to participate in the political process outside the parliamentary elections. One possible solution is to introduce public participation at the early stage of policymaking processes. The EU seems to have understood this linkage; EU officials acknowledge that increasing deliberative public participation could be the key to increasing the acceptance of EU institutions and decisions and to increasing voter turnout in elections.

The EU has recently taken several concrete measures to offer citizens the possibility of starting a conversation, offering feedback, making suggestions, and raising concerns via online platforms on existing and proposed EU legislation. They can also suggest new items for future legislative agendas. The consultation database of the European Commission offers an overview of all the public consultation projects sponsored by the EU. There are currently 51 consultation projects on EU directives in areas such as the environment, waste legislation, natural disasters, market, business and industry public health, consumers, and many more.

Another tool to foster public participation is the EU’s “better regulation agenda”. The agenda aims to design and evaluate EU policies and laws more transparently and to incorporate the views of citizens and stakeholders into policy-making. Public participation in all stages of the process is an essential part of the agenda. Feedback is welcome from the “in preparation”-stage when EU rules are evaluated or new initiatives are proposed, all the way to feedback on acts to be adopted by the Commission as tertiary norms or “rules” in US terminology.

During the process new and old ideas for policies and legislation are outlined, and citizens can give feedback during a period of 4-8 weeks via the “Have your say”-portal. One example in the early “roadmap-phase” is the process on “cross-border enforcement of road traffic rules”. Here, participants (even anonymously) can submit comments online that are visible to everyone. In this example, 16 public authorities, associations, trade unions and citizens from different countries expressed their support, disagreement and concern in English, French and German. The Commission will next make public the final legislative proposal, accompanied by its impact assessment report. Citizens and stakeholders then will have another chance to submit feedback on the proposal when it goes to the EU legislature. In this case, the assessment of the initial feedback and another public consultation is planned for the first quarter of 2020 before the EU Commission adopts proposed rules on cross-border enforcement.

Furthermore, the EU is also beginning to include the public in assessing the performance of existing EU law and to suggest changes necessary to keep laws up-to-date. The Commission’s “Regulatory Fitness and Performance Programme” which aims at evaluating the effectiveness and performance of current directives enhances public participation, using an online platform. For example, the evaluation of the Strategic Environmental Assessment Directive in summer 2018 invited participation from any interested party, including private citizens, companies, organizations, public authorities. Respondents could contribute to the assessment of the effects of certain public plans and programs on the environment (SEA Directive).

The EU consultation platform included an online questionnaire for participants that could be submitted in any EU official language. There were 249 respondents, significantly more than the 16 responses in the traffic rules consultation. Individuals submitted 111 or 45% of the total.

A report prepared after the consultation found that 88% of the respondents considered it very important for stakeholders and the public to be informed and consulted about the potential environmental impacts of public plans and programs. However, there are two problems with the report. First, 249 is a small number relative to the EU’s population of over 500 million, even if some comments were posted by organizations representing civil society groups. Second, feeling good about consultation is hardly a measure of its importance. One would also like if any of the input from the public influenced the final EU decision. Are the suggestions taken seriously by EU officials, as the EU claims?

Commission consultations are seldom subject to judicial review so it is difficult to check for the impact of public participation procedures. However, the environment is a special case because of the Aarhus Convention, an environmental agreement of the United Nations Economic Commission for Europe, ratified by both the EU and Germany, along with most other European countries. Its three pillars are access to environmental information for any citizen; public participation in administrative decisions on environmental issues, and access to justice on environmental law matters. It does not apply to legislative processes, and the Convention’s provisions are less stringent for regulations with the force of law than for the individual projects or plans and programs.  For regulations, countries that ratify the treaty must only “strive” to promote public participation and “should” take certain steps.  Thus, the ECJ let stand a Commission decision not to allow two Dutch NGOs to participate in Commission decisions regarding environmental matters.

However, courts in Europe are beginning to acknowledge and uphold democratic justifications for public participation, especially in the environmental area. In September 2018 the ECJ sided with the NGO plaintiff in requiring publication of Impact Assessments (IAs) used to prepare legislative proposals. The judgment, based both on the EU’s own open government policy and its implementation of Aarhus, explicitly stressed the democratic value of open information and its role in stimulating debate. The court held in favor of the NGO, in part, because the decision would limit future Commission attempts to limit access to IAs. This decision may signal a new willingness of the ECJ to promote democratic values, but it remains to be seen if that perspective will extend to policy-making inside the Commission.  At least, the ECJ has recognized the democratic consequences of administrative practices.

In the Member States, public participation in policy-making processes is gaining support in the hope that it will encourage citizen acceptance of political/policy decisions. For example, Germany has moved from one extreme to the other. In the late 1990s, after reunification, statutes sought to speed up approval of large-scale infrastructure projects by limiting public participation. After massive public protests in the early 2000s, the trend reversed (Gard, Andre “Die frühe Öffentlichkeitsbeteiligung: Die Regelung zur frühen Öffentlichkeitsbeteiligung nach § 25 Abs. 3 VwVfG” (Nomos 2018)). Reflecting the special status of environmental harms, recent domestic laws require public consultations for major projects affecting the environment (see, for example the “Öffentlichkeitsbeteiligungsgesetz” (Public Participation Act) or the Gesetz über die Umweltverträglichkeitsprüfung (Environmental Impact Assessment Act)). A good example is the Netzausbaubeschleunigungsgesetz (network-expansion-acceleration-act) that mandates public consultations at several stages in the rollout of the expansion of the electricity supply system. The statute demands access to relevant information and public participation from an early stage The German courts have interpreted and generally enforced these procedural requirements in cases brought by environmental groups (see, for example: Administrative Court Berlin “Gigaliner”-decision of 18 April 2018).

The newest step, taken under the second pillar of the Aarhus Convention, is the publication of the “Leitlinien für gute Bürgerbeteiligung” (guidelines for good public participation) published by the German Federal Ministry for the Environment in January 2019. The guideline was developed by ministry officials, experts, and the public. The Environmental Ministry invited ministry officials and the public (irrespective of nationality) to provide input in several workshops  The guideline stresses the relevance of public participation in environmental questions from the planning phase to the final proposal, but it also makes clear that the decision rests with the ministry. The guideline refers to past pilot-projects using public participation that served as a basis for the new document. Successful measures were, for example, online platforms where people could post suggestions and comments, such as “an action-program for the protection of insects” or the climate protection plan 2050 where “civil dialogues” were held in several German cities and where randomly selected citizens could discuss and offer their suggestions. Nevertheless, it remains true that the Government can issues Rechtsverordnungen (rules with the force of law) without any required public consultation or reason-giving. Of course, it may be politically expedient to involve the interested public and organized civil society groups, but consultation is not a legally required.

In contrast, administrative law in the United States has required open-ended public consultation in rule-making since the passage of the Administrative Procedure Act (APA) in 1946. [USC chapter 5, sub-chapter II, 551-559; chapter 7, 701706]

The informal rule-making provisions require notice in the Federal Register with publication of a proposed rule, open-ended public participation, and a statement of reasons to accompany the final rule. Thus, public participation is built into the framework of the US law of rule-making, but the statute does not require outreach to potential participants beyond public notice. However, the APA gives the government an incentive to organize a credible process because those procedures are subject to judicial review along with the requirement that the rule be consistent with the underlying statute and not be “arbitrary and capricious”. Large infrastructure projects are also subject to procedures that require public input. The open-ended comment process in US rule-making sometimes overwhelms the system with hundreds of thousands of submissions, but most are duplicate emails from supporters or opponents. The more serious problem is the bias toward the well-organized and the well-financed. However, as in the EU and German cases the aim is not to produce a policy through a consensus of the participants, but rather to provide an additional input for the regulatory authority to consider in drafting a policy.

Probably the more serious threat to effective public participation in executive branch rule-making is the shift of regulatory power to the Executive Office of the President (EOP). The Office of Information and Regulatory Affairs (OIRA) in the EOP reviews rules before they are issued by applying cost/benefit criteria [E.O. 12866]. The Trump Administration’s executive orders stress the cost side of the equation, and new rules must be balanced by the repeal of old ones [E.O. 1277182 Fed. Reg. 9339 (Feb. 3, 2017) (entitled “Reducing Regulation andControlling Regulatory Costs”). These are executive orders, not statutes, but they aim to chill rule-making activity so that processes that would require public participation are not even initiated. Many current rule-makings repeal or modify existing rules, but they must go through the notice and comment process providing a possibility for opponents, at least, to place their objections on the record [Motor Vehicle Manufacturers’ Asso. v. State Farm Mutual Automobile insurance Co., 463 U.S. 29 (1983)].

In the United States public participation in executive rule-making has a long pedigree; hence, it is troubling and ironic, that some politicians and commentators are suggesting cutbacks in procedures that require public input. In contrast, the EU, Germany and other European countries are experimenting with alternative routes to public input that could enhance the democratic accountability of executive policy-making. Although neither the EU nor its Member States have legally enforceable requirements for public participation in rule-making, it seems likely, at present, that innovations along that dimensions are more likely there than in the US.

*Reblogged from the Notice and Comment blog

Photo credit: Bird Aware Solent
Barnard & Peers: chapter 5, chapter 8

Thursday, 9 May 2019

Friendly Fire in the European Union? AG Sharpston’s opinion on the validity of the revised firearms Directive

Niels Kirst (University Paris II – Panthéon-Assas)                             

The recent opinion by Advocate General Sharpston (hereafter: “AG”), which was released on 11th April 2019, concerned the validity of Directive 2017/853, the so-called firearms Directive. The Czech Republic claimed that the European Parliament and the Council used the wrong legal basis, the internal market harmonisation clause (Article 114 TFEU), for adopting this Directive.

The case is interesting for three reasons. First, the case deals with question of legal basis, and has therefore gained significant attention from EU lawyers. Second, it is yet another case in which the Czech Republic is acting jointly with Hungary and the Republic of Poland (which intervened to support the Czech Republic) to defend their common interest (see also the pending Case C-715/17 Commission v Poland, on relocation of asylum-seekers). On the other side, France and the Commission intervened to support the Council and the European Parliament. Third, Directive 2017/853, which was contested by the Czech Republic, amended Directive 91/477, which was the first legislative measure setting a minimum standard regarding civilian firearms acquisition and possession in the European Union (hereafter: “EU”). (The 1991 Directive had been previously amended in 2008)

There is a specific prehistory to the case. After the terrorist attacks in Paris and Copenhagen, the Juncker Commission proposed tightening the gun laws in the European Union. This was met by much scepticism on the Czech side. Why is this the case? The Czech Republic’s gun laws differ tremendously from those of most Member States of the European Union. The history of liberal gun possession in the Czech Republic stretches back to the 18th century. Therefore, the Czech Republic had a great interest to oppose the Directive, also given the fact that it is the 7th largest post-war arm exporter in the world.

Having said that, the Directive was finally approved under the ordinary legislative procedure on the 25th April 2017 with qualified majority voting in the Council, with only the Czech Republic, Luxembourg and Poland voting against the Directive. Beforehand it had been approved in the first reading by the European Parliament. While Poland voted against the Directive, due to stringent norms, Luxembourg voted against the Directive, since it wanted a stronger regulation of firearms. (Note that the Directive only sets minimum standards, so Member States can opt unilterally for higher standards, as the UK does, for example) Among other things, the revised Directive prohibits many semi-automatic weapons.

The first plea: wrong legal basis

Preliminary remarks

The first claim of the Czech Republic was that the Directive infringes the principle of conferral of powers upon the European Union, which is enshrined in Article 5(2) TEU. This Directive was adopted on the basis of the EU’s internal market powers (Article 114 TFEU), but the Czech Republic alleged that the aim of the Directive was not minimum harmonisation in the internal market concerning guns, but instead the prevention of crime and terrorism. Therefore, the Directive had to be adopted under Article 84 TFEU, which deals with crime prevention, and forms part of the Treaty provisions on the area of freedom, justice and security. Article 84 TFEU does not allow harmonisation of national law.

Article 114 TFEU

In a first step, the AG analysed the particularities of Article 114 TFEU, which is designed to allow the EU legislator to adopt legislation with the aim of achieving the objectives of the internal market. The precedents which are highly relevant for this case were British American Tobacco and Philip Morris Brands. Both cases concerned the question, if consumer health may be protected on a European Union level by means of legislation with Article 114 TFEU as legal basis. In analogy, the AG draws attention towards Article 114 (3) TFEU, which defines that questions of consumer safety shall be taken into account when harmonising the laws (para 47).

Having said that, the AG also drew attention to Germany v Parliament and Council in which the Court found that such a harmonisation under Article 114 TFEU is not without limits, as regards a ban on advertising of tobacco products.

The yardstick question for the AG was whether the Directive eliminates obstacles to free movement, while not exceeding the competences under Article 114 TFEU (para 50). The AG rejected the argument by the Czech Republic, Hungary and Poland that recitals 2 and 23 in the preamble to the Directive, which mention crime prevention as an objective, alter the scope in a way that it cannot be regarded as falling under the auspices of the internal market any longer (para 54).

Directive 2017/853

In a second step the AG analyzed the substantive legal purpose and the provisions of the Directive. The AG clarified that what matters are the ultimate legal effects of the Directive and not the recitals (para 65). Further, the AG laid out, by citing Digital Rights Ireland (discussed here), that the fight against serious crime constitutes an objective of general interest of the EU (para 66).

In her analysis the AG followed a four-pronged approach. First, the AG found that firearms are intrinsically dangerous goods, therefore any legislation concerning firearms must contain a security aspect (para 67). Second, the Directive enhances mutual confidence among the Member States in cross-border trade (para 68). Third, the Directive aims to harmonize technical barriers to trade, which may include technical specifications (para 69). Fourth, the Directive provides for a improved cooperation among Member States (para 70).

By this analysis, the AG derived the conclusion that the content of the Directive does not harmonize crime prevention in any material sense (para 71), clarifying that the Directive has to be assessed in the light of the 1991 Directive and that a mere change of recitals does not indicate that the aims of the internal market are removed.

The second plea: proportionality

The second plea of the Czech Republic was the alleged lack of proportionality of the Directive. The Czech Republic argued that the measures adopted are manifestly disproportionate to the objectives pursued, on two grounds. First, the Commission failed to conduct an impact assessment, event though the Commission pledged to do so in an interinstitutional agreement on better law-making. Second, the Directive interferes disproportionately with the right to property, which is a fundamental right in the EU legal order.

The question arose, if an interinstitutional agreement, as far as it concerns an impact assessment obligation, is legally binding on EU institutions. This question is general importance for the EU. Hungary argued in support of the Czech Republic that an interinstitutional agreement shall be legally binding, while the Parliament, the Council and the Commission maintained that the obligation to carry out an impact assessment in an interinstitutional agreement is not binding.

The AG dissected these questions starting by lying out that firearms are intrinsically dangerous, and that the EU legislator decided to regulate the entire lifecycle of a weapon in the internal market (para 87). This is important to keep in mind, when verifying if the articles of the Directive are proportionate to the aims. The arguments of the parties were among others that without an impact assessment it cannot be assessed, if the provisions of the Directive are actually proportionate.

Impact assessments are referred to in the inter-institutional agreement on better law-making, adopted on the basis of Article 295 TFEU, and the Court had earlier found, in Commission v Council (para 49), that such agreements among the institutions can be binding on them. However, in this case the AG found that there are no such obligations to conduct an impact assessment in each and every case. An omitted impact assessment cannot be a valid ground to annul a fully lawful Directive.

In case of urgent actions, the AG argued, an impact assessment is not always possible. Further, the Court had already confirmed, in the case of Poland v European Parliament and Council (para 159), that an impact assessment itself is not binding on either the Parliament or the Council. The key take-away is that an omitted impact assessment should not restrict possible actions by the institutions.

The second argument by the parties concerned the right to property. The AG determined that there is no fundamental right to own firearms in the EU, nor does such a right form part of the ‘common constitutional traditions’ of the Member States. The AG went on by stating that the right to property as laid out in Article 17 of the Charter is a qualified right, and not an absolute right. Therefore, the Directive does not deprive citizens of the Union of their right to property.

The third plea: legal certainty

In its third plea the Czech Republic argued that the Directive infringed the principle of legal certainty. Its two main arguments were that i) some of the Directive’s provisions are not sufficiently clear and precise enough and ii) the Directive would force Member States to adopt domestic legislation, which will have a retroactive effect, infringing the principle of legitimate expectations.

The AG reiterated that the principle of legal certainty is a general principle of EU law, as seen in the case of Spain v Council (para 124). Having said that, the AG regarded the wording of the Articles as sufficiently clear and precise enough to meet the requirements of legal certainty. Concerning the possible retroactive effects of the Directive, the AG first reiterated that also the principle of legitimate expectations is a general principle of EU law, as seen in Agrargenossenschaft Neuzelle. However, since there was no assurance by the administration that the classifications of weapons would not be changed in the future, the requirements to invoke that principle are not fulfilled.

Finally, the AG reiterated that these principles cannot be stretched to the point of preventing a new rule to apply to situations which arose under earlier rules (para 132). Consequently, the AG rejected the claims of the Czech Republic concerning legal certainty and legitimate expectations.

The fourth plea: equal treatment

In its last plea, the Czech Republic argued that Article 6(6) of the Directive (the so-called Swiss exception) should be annulled, since it violates the principle of non-discrimination. Switzerland is a Schengen associate; therefore, all Schengen-related legislation (such as the Directive) also applies to Switzerland. Having said that, there are certain areas in which Switzerland enjoys an exception from Schengen-related rules. This Directive is one of those cases, since Switzerland has a reserve army based on conscription, and there is an exception for States which have had such a system for more than 50 years.

In a preliminary step the AG reiterated that the principle of equal treatment is a general principle of EU law, as seen in Arcelor Atlantique et Lorraine and Others. However, the AG concluded its common ground that only Switzerland has such a system of conscription, further, Member States (and Schengen associates) differ in their culture and tradition, therefore, this article cannot be regarded as discriminatory towards other Member States and Schengen associates.


The opinion gives much food for thought and discusses numerous general principles of EU law. Surely, the opinion will not be welcomed in the Czech Republic. As a key take-away, it is important to note that the institutions might be capable to act without an impact assessment in urgent situations, even when they have subscribed to an inter-institutional agreement under Article 295 TFEU.

Furthermore, the opinion, if followed by the Court, can be seen as a further integration in the area of European Union criminal law. Guns are one of the predominant tools for committing criminal acts, and by tightening the requirements for gun holders in the Member States, the EU legislator aims to impact upon on crime prevention in the European Union.

Finally, the opinion gives guidance on the importance of the right to property in the EU’s legal order, confirming that the right to property as laid down in Article 17 of the Charter is a qualified right and not absolute. Further, the AG illustrates that there is no such thing as a fundamental right to possess guns in the European Union legal order (para 104). It will be interesting to see if the Court follows the opinion of the AG.

Barnard & Peers: chapter 11, chapter 12, chapter 25
Photo credit: EuropeWord