How can law repower Europe? Ending fossil fuels and the Sustainability Directive

 

Ewan McGaughey, Reader in Law, King’s College London

Photo credit: Geopolitical Intelligence Services, via Wikicommons

 

With Putin’s criminal war on Ukraine, the RePowerEU and UK government initiatives will end Russian fossil fuels in Europe, and the US president aims to end fossil fuels completely. For ‘national security and for the survivability of the planet, we all need to move as quickly as possible to clean, renewable energy’, said Biden, and ‘the days of any nation being subject to the whims of a tyrant for its energy needs are over.’ This recognises that switching from one aggressive dictator’s fossil fuels to another’s won’t work. We need to stop coal, oil and gas as fast as technology allows – a recognition of everyone’s universal right ‘to share in scientific advancement and its benefits’. The Sustainability and Due Diligence Directive proposal has already been hotly criticised for its many shortcomings. And this is a text that arrived even before our new geopolitical reality. The RePowerEU communication (8 March 2022) focuses on changing import sources, turning down thermostats, and investing more in wind and solar. But it does not yet engage and capitalise upon a vast range of legal options.

 

            So this blog post asks, how can corporate law and regulation repower Europe to achieve the goal: 100% clean energy? This draws upon extended analysis of the law in my new book, Principles of Enterprise Law: the Economic Constitution and Human Rights (Cambridge UP 2022). It will explain EU law, but most analogues for the UK are also found in the model Green Recovery Act. First, this post examines the reasons to replace coal, oil and gas as fast as technology allows. Second, it identifies where EU legislative changes with the greatest strategic impact (that are often neglected) can be made, and explains the limits of the Sustainability Directive proposal. Third, it concludes with a call to shift from distant targets like 2050 or 2030, to move as fast as technology allows.

 

1. Reasons to replace coal, oil and gas as fast as technology allows

The Ukraine war makes us realise that ending coal, oil, and gas is an environmental and a geopolitical imperative. First, countries whose exports are the most fossil fuel intensive are most likely to be dictatorships because of the ‘resource curse’. The markets for oil and gas extraction have very high barriers to entry, and foster territorial monopoly. With this concentration, political elites can capture inordinate wealth. They use that wealth to suppress their populations, and launch aggressive war. So, finding fossil fuel resources has rarely been a blessing. More usually fossil fuels curse people with oligarchy, dictators and conflict. Clean energy makes politics more democratic, and private enterprise more plural and competitive, because nobody can monopolise the sun, the wind and the rain. The materials to utilise these clean and natural resources are cheap, dispersed and abundant.

            Second, all fossil fuels fill the air with toxic filth, in the UK costing the NHS £6 billion and killing 40,000 people every year. If that’s not enough, fossil fuels drive global burning and flooding. This isn’t climate ‘change’. It’s apocalyptic climate damage. Shell, Exxon, Total, RWE, Gazprom and the rest profit from it. This is the worst negative ‘externality’. The polluters externalise the costs of their production, try to make us pay, say it’s what we want, and greenwash and lie about what they do. Remember, every week UEFA ran Gazprom ads until March. 

            Third, the best way to stop negative externalities is usually through bans. Damages or taxes may help, but can also be a distraction. While much economic theory focuses on Pigouvian taxes, or Coase’s evidence-free theory that the only real cause of market failure is transaction costs, the empirical reality is that carbon taxes have failed, and bans work. Bans galvanise political coalitions with moral clarity. After years of unsuccessful calls for ‘regulation’ of the evil, the bans on slavery, aggressive war, and nuclear testing largely succeeded. History’s most successful international environmental law, the Montreal Convention, banned CFCs and HFCs (with very few exceptions) and has healed the hole in the ozone layer. Fortunately, the production areas where coal, oil and gas can not be easily and profitably replaced are now largely limited to planes, cargo ships, cement and steel. And all of these have solutions in development. They will come clean with enough R&D investment, and the necessity of technology, given the impending bans: “Vorsprung durch Verbote, und Technik.”

 

2. Repowering Europe

So, how can corporate law and regulatory reforms repower Europe? The easiest method is to focus on the sector-specific emitters, namely energy extraction and generation, transport, agriculture and buildings. Then, we can examine corporate and financial laws, which have cross-sector effect. Ironically, to understand how corporations really behave, corporate law alone leaves us in the dark. We must expand our view across the seamless web of rules in which corporations are embedded: in short we must learn the law of enterprise.

 

Energy extraction and generation

The RePowerEU plan identifies that the EU annually imports 155 billion cubic metres of gas from Russia (and 387 bcm in total) plus 27% of our total oil, and 46% of our total coal imports. The plan proposes switching imports to the US, and Qatar – a quick fix – and there are plans to speed up wind and solar capacity deployment. We will go much faster if all Member State regulators and energy companies actively played a part in driving up capacity. A critical fact is that coal, oil and gas are more expensive than clean energy, even without the cost of climate damage factored in. There’s no “clean coal”. Oil is black muck, not “gold”. Gas is a poison, not a “transition”. The Taxonomy Regulation proposal to count fossil gas as ‘sustainable’ must go.

            Three examples of reform follow. First, the Electricity Directive 2019/994 needs a new article 8a, imposing duty on Member States to ensure all electricity undertakings to convert all their supply to wind, solar or other clean energy, for instance at a rate of 33% a year. Second the Gas Directive 2009/73/EC needs a new article 5, with a duty on Member States to phase out all gas as fast as scientifically possible, and redeploy infrastructure and staff wherever possible to hydro-storage facilities. This world map identifies the best energy storage locations: you pipe and pump water up a hill or a mine, and let gravity do the rest. Third, the Hydrocarbons Directive 1994/22/EC, article 2 should be replaced with a new duty on Member States to eliminate all fossil fuels, and place corporations that refuse to convert into a public insolvency procedure.

 

Working vehicles and auto-makers

As the shift to 100% clean energy generation is underway, transport will change too. Business behaviour and vehicles are far easier to shift than consumers – whose cars are parked 96% of the time in any case, and who are not so often making rational cost-benefit calculations. The most impactful emission reductions are in delivery vehicles, taxis, buses and rail: working vehicles constantly in use. On the demand side, in the Bus Passenger Rights Regulation 2011 (EU) No 181/2011, a new article 6a should have a duty on Member State bus licensing authorities, and companies, to electrify their fleet, for instance at a rate of 33% a year. There should also be a duty on Member States to identify and implement electric bus routes to replace as much traffic as possible. The Railways Directive 2012/34/EC, article 17(4A) should similarly have a new duty, as a condition of licensing, to electrify all rail as fast as technology allows, in cooperation with infrastructure owners. Subsidies for rail should be provided that will eliminate any flight-path of comparable speed (e.g. London to Paris). Analogous provisions on electrification should be written for all taxi and private hire vehicle corporations, and furthermore for all business vehicles. In particular, tax deductions should only exist for fully electric vehicles: this is how we convert massive fleets of postal operators, supermarkets, police or ambulances. All tax breaks for petrol, diesel or hybrid vehicles must scrapped, because the medium term total operating costs for non-electric transport is far higher: electricity is far cheaper than petrol, and clean energy costs are declining logarithmically. The more we subsidise fossil vehicles, the more we damage European business.

            On the supply side, Europe’s automakers need to stop dragging their heels and step up to 100% electric, especially in Germany. In World War Two, the US government told its automakers that it needed all factories to retool for planes, and the corporate executives replied their demands were impossible: only 10-15% of production could be switched a year. But the US government insisted, and it was done at incredible pace. We are at war now. Ukrainians are being tortured, mass raped and massacred by war criminals. Saudi Arabia is run by another sadistic war criminal who chops up journalists, and starves Yemeni children. The list goes on.

            So we need to amend the Vehicle Emissions Regulation (EU) No 459/2012/EC with a new Annex, and a new Euro 7 standard, that has zero emissions: all vehicles electric. Similarly, the Emission Performance Regulation (EC) 443/2009 article 4 should require all new vehicles are zero emissions, and prohibit shareholder dividends or director bonuses, and impose executive pay cuts, until this is achieved. After “Dieselgate”, the automakers have a moral duty to convert to electric now. But more than this, if hard law does not pick up the pace, Europe’s carmakers will be overtaken by Asian and American competition. Markets work, but they are slow. It took 50 years for cars to replace horses, even though they were obsolete, and we do not have time. Not driving electric, again, is costing European business, and us, the Earth.

 

Agriculture and buildings

Our food and homes are the next biggest users of toxic fossil fuels. The Common Agricultural Policy presents huge potential, since it is over a third of the EU’s total budget: that money should go back to its original purpose of achieving social goals, not enriching agri-businesses that decimate nature. The Direct Payments Regulation (EU) No 1307/2013 article 9 should require all ‘active farmers’ to plant trees and enhance biodiversity, and articles 45 and 46 should be amended to progressively raise the ‘ecological focus area’ requirements from 5% to 25%. In the Management and Financing Regulation (EU) No 1306/2013 a new article 91a should have conditions for farmers to eliminate unnecessary machinery, the practice of no-tilling to revive soil and retain carbon, and use of robot weedkillers instead of huge herbicide sprays. To solve rural poverty and boost investment, all employers in receipt of money should be required to pay living wages and recognise independent trade unions, and the Rural Development Regulation (EU) No 1305/2013 article 5 should be require installation of electric charging points, and provision of electric public transport, just like the great New Deal programmes in the Rural Electrification Act of 1936.

            For buildings, the Energy Performance of Buildings Directive 2010/31/EU articles 2(2) and 7-9 should change from a duty for ‘nearly zero-energy buildings’ to ‘negative energy buildings’ following the motto ‘every building a power station’. Article 14 on ‘inspection of heating systems’ should include a ban on all new gas heaters, and create a duty to replace existing heaters in public and commercial buildings, then homes, with heat pumps or electric boilers.

 

Corporate, banking and trade

A final group of changes cut across all enterprise sectors. First, there is a growing body of cases that hold governments and companies responsible for climate damage. Urgenda v Netherlands (2019) held the Dutch government had to cut emissions by 25% by 2020, and the Klimaschutz case (2021) held the German government had a duty to speed up climate measures so as to not place all burdens on younger generations. The courts held that without action there would be breaches of the European Convention on Human Rights, article 2, on the right to life. If these Member State courts are right (hard to doubt) this binds the whole EU, even the UK. Also, in Milieudefensie v Shell (2021) the Dutch Civil Code section 162 on tort was interpreted, in light of the right to life, to require Shell to reduce all direct and indirect emissions by 45% by 2030. Further in Lliuya v RWE AG (2017) a German Upper State Court is gathering evidence on whether to award damages in tort for 0.47% of flood defence costs for a Peruvian community, against RWE AG, which itself is responsible for 0.47% of all historic greenhouse gas emissions. We should not have to wait for the courts. We should codify these tort principles in EU law. We should also amend the Accounting Directive 2013/34/EU article 6 to require all companies account for the cost of reversing climate damage, and the Company Law Directive 2017/1132/EU article 45 to require all companies with significant greenhouse gas emissions to aside reserves for climate damage liability. This will likely push most polluters to convert their businesses, or go out of business.

            In terms of macro-structure, the European Central Bank Statute, article 1, should clarify that ‘price stability’ entails reducing inequality and ending climate damage, because inequality of income and wealth concentrates risk and drives depression, and the wild fluctuations of gas, oil and coal prices – driven by dictators now as in the 1970s – is a prime cause of inflation. Then we have to overhaul the GNI Regulation (EU) 2019/516, and replace ‘Gross Domestic Product’ as a measure of economic performance with objective factors that do not count harm to the environment, human health, and ‘loss of our natural wonder’ as positive. The Inequality-Adjusted Human Development Index, with real wages and working time replacing GDP is a simple option.

 

Directors duties’ and the Sustainability and Due Diligence Directive

How does this all compare to the SDDD proposal, released a day before Putin’s criminal invasion? The proposed Directive would require companies turning over €150 million, or €40 million in ‘critical sectors’, to prevent ‘potential adverse impacts’ on a list of international human rights and environmental norms (arts 2-3, 7 and Annex). If ‘the adverse impact’ (that is, human rights abuse and environmental damage) ‘cannot be brought to an end’, says article 8(2), ‘Member States shall ensure that companies minimise the extent of such an impact.’ Article 15 says large companies should have a ‘business model and strategy... compatible with the transition to a sustainable economy’ (not defined) and  ‘limiting of global warming to 1.5 degrees’, and report their plan on climate risk. Then article 25 says directors have a duty to ‘take into account the consequences of their decisions for... human rights, climate change and environmental consequences’. This replicates the Companies Act 2006 section 172 but without the directors’ defence of good faith.

            The main problems with this proposal are that it is laden with greenwashed jargon that diverts responsibility from executives of coal, oil and gas corporations (‘adverse impact’, climate ‘risk’, or ‘combating’ climate change). It’s “blah, blah, blah” and the filthy fingerprints of the fossil fuel lobby are everywhere. Instead of saying “do no harm” article 8(2) gives companies a licence to pollute, violate labour and human rights, and argue over it in court if the wrongs ostensibly ‘cannot be brought to an end’. Presumably Gazprom would have been arguing that its environmental damage or NordStream2 just could ‘not be brought to an end’ but they could plant some trees to ‘minimise the impact’. BP executives would be inventing a new paper trail saying they took environmental consequences into account before Deepwater Horizon exploded – woops! – so no breach of duty. But is this proposal better than nothing? Yes it is extraterritorial. But given Putin’s invasion of Ukraine, perhaps it is worse, because it made everyone feel like they are doing something when they were not, as the dictator funded their next aggressive war. As well as stripping article 8(2), and a dozen other changes, article 25 should instead create a duty of every director to shift to clean energy supply as fast as technology allows, divest from all fossil fuels, and make products of lasting and durable quality to minimise material throughput. This duty should be enforceable by investors, employees and other groups with a sufficient interest in the company.

 

Act now, and ditch distant targets

If this war makes us realise anything, it’s that the lies and inaction must end. In 1977, Exxon Corp did internal research finding that ‘mankind is influencing the global climate through carbon dioxide release from the burning of fossil fuels’. Then, instead of shifting to be a network renewable company, its executives lied to the world about climate damage, and so did all the rest. In 1997, Putin wrote a masters thesis on how Russia could be great again if it exploited its resources, particularly fossil fuels, and after he turned his country into a petro-state, he became the world’s biggest climate denier. We cannot wait till 2050 or 2030 to end this psychopathic economic and geopolitical system. Those dates are not really targets later, but licences for coal, oil, gas and dictators to keep going now. Science does not tell us what we should do, it only says what is happening. Every puff of smoke, every slick of oil, every lump of coal is doing us damage, and once we understand that we see the cost of inaction is immense. Any rational, thoughtful person sees that we must end fossil fuels as fast as technology allows. And what we can win is so much greater: clean air, a plural economy, a more democratic polity, a more just society, and peace.

 

Rights and Equality Law in Northern Ireland Post Brexit: An unfolding reality

 

Colin Murray, Reader in Public Law, Newcastle University

Photo credit: Chmee2, via Wikimedia commons

 

All of the talk of Getting Brexit Done, as it turns out, was hokum. The UK Government have made it clear that they are unhappy with the Protocol on Ireland and Northern Ireland that they negotiated with the EU and want to see it radically changed. That much is well known. But, at a deeper level, much of the task of understanding what Brexit, and the Protocol, means in practice is only beginning. The Withdrawal Agreement, and indeed the Protocol as part of it, is not in terms of UK domestic law an unincorporated treaty; section 7A of the European Union (Withdrawal) Act 2018 (inserted as part of the European Union (Withdrawal Agreement) Act 2020) makes it operative as part of the UK’s domestic jurisdictions.

This produces a series of complex interactions between the Withdrawal Agreement’s requirements, new legislation and retained EU law that are only now being subject to litigation. This post examines the level of indeterminacy inherent in Article 2 of the Withdrawal Agreement’s Protocol on Ireland and Northern Ireland, the provision which is supposed to secure the operation of EU law’s rights and equality protections in Northern Ireland post Brexit, and the first judicial efforts to understand how it works.

 

Article 2

Northern Ireland has frequently been at the forefront of Brexit debates. Notwithstanding the attention paid to the unique relationship that it continues to have with the EU after Brexit, comparatively little has been said about the human rights and equality dimensions of the Protocol than its trade provisions. Under Article 2(1) of the Protocol, significant parts of EU rights and equality law continue to apply to Northern Ireland:

The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.

It might not be immediately apparent, Article 2 provides for two separate obligations. The first relates to the EU law measures listed in Annex 1. At present, this covers six directives which make up the backbone of EU law’s protections against discrimination on the basis of protected characteristics; the Racial Equality Directive, Employment Equality (Framework) Directive, Gender Goods and Services Directive, Equal Treatment (Employment) Directive, Self-Employment Equal Treatment Directive, Equal Treatment in Social Security Directive. The full scope of these protections is only evident when Article 2 is read alongside Article 13(3) and 13(4) of the Protocol, which place the United Kingdom under a general obligation to ensure the law applicable in Northern Ireland reflects developments in European Union law relating to the Annex 1 directives. In other words, Northern Ireland law must be reformed to “keep pace” with developments in these aspects of EU law.

The second, more general, obligation upon the UK is to avoid any diminution, as a result of Brexit, of the protections provided by EU law which underpin the terms of the Rights, Safeguards and Equality of Opportunity section of the Belfast/Good Friday Agreement 1998. This is a lot to unpack, but taken at face value it is designed to preserve the operation of a range of EU law related to rights and equality in the context of Northern Ireland. Much of this continues to operate, post Brexit, as retained EU law, but as the UK Government moves to overwrite retained measures this opens up the possibility that the non-diminution guarantee will prevent or restrict divergences in Northern Ireland law. The more that Westminster seeks divergence for Great Britain from EU law with rights and equality elements (setting devolved competences in Wales and Scotland aside for the moment), the more prominent Article 2 will become in sustaining a distinct set of arrangements for Northern Ireland.

The Northern Ireland courts are responsible for administering the EU law relevant to Article 2 without direct oversight by the EU’s courts. This is perhaps surprising given the zeal with which the CJEU ordinarily guards its function to oversee the application of EU law, and operates very differently in this regard from the Protocol’s provisions on the marketing of goods in Northern Ireland (Article 12). Under Article 13(2), however, the courts in Northern Ireland are required to interpret the provisions of the Protocol ‘in conformity’ with relevant CJEU case law. This is a more extensive obligation than that set out in Article 4 of the Withdrawal Agreement; the Northern Ireland courts must continue to track CJEU case law as it develops.

All of this makes for a dizzyingly complex set of arrangements. EU law works as an interconnected whole, underpinned by the operation of general principles. In terms of equality and rights, however, the Protocol maintains the operation of some parts of EU law in full as it develops, a frozen in time version of other parts of EU law, and accepts that the UK can remove other parts of EU law (not covered by Annex 1 or connected to the 1998 Agreement). The non-diminution guarantee is particularly challenging for the courts to operate; the Northern Ireland courts will have to take account of CJEU case law as it develops and potentially retrofit it to apply to the operation of the version of EU law which was in place during the Brexit transition/implementation period. The scope of this guarantee, moreover, depends on the extent to which the courts accept that an EU law measure can be connected to the Rights, Safeguards and Equality of Opportunity section of the 1998 Agreement and its non-exhaustive collection of rights and equality aspirations which was not, at the time, intended to be determinative in legal disputes.

 

The SPUC Decision

For the last couple of years, therefore, the extent of the non-diminution guarantee has been the subject of considerable debate, but litigation was always going to be required to determine how the Northern Ireland courts approach these obligations. The first of these challenges has come from the Society for the Protection of Unborn Children (SPUC), questioning the legality of the Abortion (Northern Ireland) Regulations 2021. SPUC claimed that the new legislation was discriminatory in its impact on persons with disability and that, because EU law protects against disability discrimination, these measures could not, because of Article 2, undermine these protections.

Colton J, in the Northern Ireland High Court, rejected these claims. Although an appeal has been launched, there were multiple grounds on which this challenge failed, most significantly the need to connect the operation of Article 2 to something that would, prior to Brexit, have been an EU competence; EU law’s protections against disability discrimination do not extend to cover how EU Member States provide for reproductive rights. Moreover, the challenge was, in essence, a disguised effort to challenge parts of the 2020 Regulations, which, being in place before the end of the Brexit transition/implementation period, could not have been treated as being consequent upon Brexit. The significance of the case is not, therefore, the outcome, but the detail in which Colton J worked through the stages of a non-diminution claim under Article 2, providing a blueprint for how this will be tackled in future cases.

Colton J first affirmed that Article 2 has direct effect and can be relied on by legal persons in domestic courts. This was not contentious in the case, but is nonetheless significant. For all that the scope of the Annex 1 directives is clear, the extent of EU law covered by the non-diminution guarantee is more of a challenge to ascertain, and the first way to curtail the operation of these elements of Article 2 would be to deny direct effect within the scope of Article 4 of the Withdrawal Agreement. Colton J, not only accepted direct effect, but prominently flagged UK Government commitments to allowing Article 2 to be relied on in this way (at [77]).

Colton J then affirms that the Withdrawal Agreement potentially allows for a broad sweep of EU rights and equality law to apply under Article 2 of the Protocol (at [78]):

The combined effect of section 7A EUWA 2018 and Article 4 of the Protocol limits the effects of section 5(4) and (5) of the EUWA 2018 and Schedule 1, para 3 of the same Act which restrict the use to which the Charter of Fundamental Rights and EU General Principles may be relied on after the UK’s exit.  

It is worth noting an error in the judgment in this paragraph – it isn’t Article 4 of the Protocol but of the Withdrawal Agreement that is at issue here. But the point remains the same; direct effect and supremacy apply to the EU law which falls within the ambit of Article 2 of the Protocol, and that can include the Charter of Fundamental Rights and EU General Principles notwithstanding section 5 of the Withdrawal Act 2018 excluding the Charter from retained law.

Having set out this broad playing field, Colton J then summarises the necessary connection between the rights and equalities section of the 1998 Agreement and EU law (at [83]):

[T]here must be a diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled “Rights, Safeguards and Equality of Opportunity” that is, there must have been a protection that existed before the withdrawal of the United Kingdom from the European Union which does not exist after, and as a consequence of, that withdrawal.

Having set up the key hurdle for SPUC to cross, this is where the claim breaks down (at [132]):

[T]he applicant cannot establish, as he was required to do if he was to rely upon Article 2, that the equality of opportunity protection identified in the 1998 Agreement has been given effect in the legal order of Northern Ireland on or before 31 December 2020.  The alleged right relied upon was not underpinned by EU law prior to 31 December 2020 and therefore there has been no change in Northern Ireland law on this issue as a result of the UK’s exit from the EU.

The most important feature of this decision is that Colton J does not seek to read the provisions of the 1998 Agreement restrictively. Instead, he puts much of the weight of his decision on requiring SPUC to demonstrate how EU law protected this right prior to the end of the transition/implementation period (31 December 2020). Hence the “frozen in time” nature of EU rights and equality law in Northern Ireland. EU law textbooks from around 2020 will continue to attract a premium in this small jurisdiction for anyone seeking to rely on Article 2’s non-diminution guarantee will have to show how EU law operated at this time.

 

The Fights to Come

Now that the SPUC decision has laid some of the groundwork for managing complex non-diminution claims, stronger claims could be waiting in the wings following the passage of the Elections Act 2022 and Nationality and Borders Act 2022. These need to be considered in turn.

EU citizens resident in Member States other than their home state enjoy rights with regard to local government (EU Charter of Fundamental Rights, Article 40 and Treaty on the Functioning of the European Union, Article 22). This is significant in the Northern Ireland context, because the local government franchise also provides the basis for the franchise for Northern Ireland Assembly elections. Under the Elections Act, Westminster legislated to connect electoral rights to whether or not a reciprocal arrangement exists for UK citizens resident in European Union Member States (such arrangements have already been concluded with Spain, Portugal, Luxembourg and Poland). This is a complex set of arrangements; it relates to EU citizens who became resident in the UK since the start of 2021 (because of the Withdrawal Agreement’s protections for existing resident EU citizens) and is constrained in its ambit because local elections are devolved matters in Wales and Scotland.

Insofar as the Act seeks to curtail a right underpinned by EU law which was operative in 2020, the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission,  which have responsibility for overseeing the operation of Article 2, have identified that this raises potential Article 2 issues around its operation in Northern Ireland (which do not apply to the restriction of these rights in England). Democratic participation rights are explicitly covered by the Rights, Safeguards and Equality of Opportunity section of the 1998 Agreement.

On a direct application of the Article 2 test, had it not been for Brexit, UK legislation could not restrict this right without breaching EU law. The UK Government has made two responses to the possibility of an Article 2 challenge in the course of parliamentary discussion over the new law. First, ministers claim that voting rights for EU citizens must be treated as ancillary rights, and that Brexit has restricted freedom of movement:

[T]he UK is no longer a Member State, EU citizens self-evidently no longer enjoy the right to reside here under the EU Treaties and so the ancillary Article 22 TFEU right to vote and participate in municipal elections is no longer applicable …

Second, ministers note that the new legislation maintains ‘the voting and candidacy rights of EU citizens who were resident here by the end of the Withdrawal Agreement transition period (31 December 2020)’, buttressing the claim that the law is Article 2 compliant on the basis that EU citizens who enjoyed the right during the implementation/transition period will not be adversely affected by the new measures. Litigation is thus likely to test how the courts approach the ‘but for’ test under Article 2. If the courts do not accept the Government’s assertions, section 7A of the European Union (Withdrawal) Act 2018 will operate to disapply the restrictions insofar as they conflict with the Protocol. A similar case for an Article 2 protection, however, cannot be made regarding Northern Ireland Assembly elections. As EU law does not provide EU citizens with a right regarding such regional elections, it is not possible to construct a legal challenge to restrictions to such participation.

The Nationality and Borders Act 2022 disapplies elements of the Trafficking Directive (Directive 2011/36/EU) which had hitherto been part of retained EU law. Although the Trafficking Directive is not listed in the Annexes to the Protocol, this measure is ‘closely linked to’ the Victims’ Directive, which the UK Government has generally accepted is included within the non-diminution commitment contained in Article 2 of the Protocol. This removal of protections for trafficked persons, insofar as they apply to Northern Ireland, therefore raises potential Article 2 issues.

The UK Government again dismiss these concerns, asserting that the Trafficking Directive is too far removed from the substance of the rights of victims under the Rights, Safeguards and Equality of Opportunity provisions;

It is clear from the language used in this section, from the object and purpose of the Agreement and from its overall context, that the drafters had in mind the victims of violence relating to the conflict in Northern Ireland as opposed to all victims in a broad, general sense.

As was noted above, however, this part of the Agreement does not function as a closed list of rights, as the UK Government appears to assert. Once again, the profound disagreements over the operative extent of Article 2’s terms will likely only be settled by the litigation of such contentious issues.

Where to next?

Last year, even as it tried to secure a major reworking of the Protocol's operation, the UK government continued to claim that the workings of Article 2 were 'not controversial'. It's tempting to say, perhaps, that they are not yet controversial. There is considerable scope for controversy to emerge as changes to the operation of retained EU law by Westminster open up divergences with the ways rights and equality provisions operate in Northern Ireland post Brexit, especially as the battles over the Protocol's provisions relating to goods look set to be renewed following the outcome of the Northern Ireland Assembly elections. If controversy does develop around Article 2, however, it will be all the more important that the groundwork for judicial approaches to the Protocol is already being set, and as new challenges emerge, we will start to get a better picture of how Northern Ireland's judges use the considerable latitude its terms allow them.  

Allister Round 2: a deeper dive into the Mariana Trench of UK constitutional law

 

Anurag Deb, PhD student, Queen’s University Belfast School of Law

Photo credit: Dom0803, via Wikicommons

 

Introduction

In UK constitutional law, it is a truth universally (though not empirically) acknowledged, that an issue in want of a single determination must instead yield to multiple, overlapping conclusions. So too, was the case with Allister and others v Prime Minister and others [2022] NICA 15, handed down by the Northern Ireland Court of Appeal (NICA) on 14 March 2022. Before I begin my analysis, it is important to note that the NICA has granted permission to appeal this case to the UK Supreme Court, so this is by no means the last analytical piece you will read about this case.

 

Facts

For those who remain blissfully unaware of the facts and issues surrounding Allister, you have my admiration. Briefly: Allister is a case which essentially challenges the Protocol on Ireland/Northern Ireland to the UK-EU Withdrawal Agreement (Protocol) as a breach of (1) the Acts of Union 1800, (2) section 1(1) the Northern Ireland Act 1998 (NIA), (3) section 42 of the NIA, (4) the European Convention on Human Rights (ECHR) and (5) EU law.

Following the judgment handed down by Mr Justice Colton in the High Court, Sarah Kay did a detailed post on this blog about the facts, issues and implications of that judgment. I also offer my own modest take in the pages of the Northern Ireland Legal Quarterly, freely available without subscription.

Briefly, the claimants firstly argued that the Protocol established differential treatment between NI and GB, thereby breaching the “same footing” provisions under Article VI of the Acts of Union 1800 (which united GB and Ireland until 1920). Secondly, because the Protocol had been agreed and incorporated into UK domestic law without seeking popular consent in NI, the claimants argued this breached the NIA insofar as the Protocol altered the constitutional position of NI within the UK. Thirdly, the Protocol allows for the Stormont Assembly to have periodic votes on the application of EU laws (relating to the single market on goods only), which disapply the cross-community consent underlying major aspects of the NIA (and thus are in breach). Fourthly, the Protocol suffers from democratic deficit, because it continues to subject NI to EU law in circumstances where NI residents can no longer elect representatives to the European Parliament, in breach of Article 3 of Protocol 1 of the ECHR. Fifthly, the EU lacked the necessary powers to agree an agreement like the Protocol and thus breached its own constitutive laws.

In the High Court, as in the NICA, all 5 grounds were dismissed. The difference between the two courts, however, was how each court construed the first ground, namely a breach of the Acts of Union. Here, we begin to plumb some truly murky depths of statutory interpretation. Captain Nemo would not find freedom in these waters.

 

What happened to Article VI?

In the High Court, Colton J left the question whether Article VI (“same footing” between GB and NI) had been repealed, rendered obsolete or spent, unanswered. Instead, he focussed on the reality of what faced him: the UK Parliament had enacted the European Union (Withdrawal Agreement) Act 2020 (2020 Act), thereby making the Protocol part of domestic law. In particular, this Act had inserted section 7A into the European Union (Withdrawal) Act 2018, which made every UK statute, whenever enacted, subject to the Withdrawal Agreement (including the Protocol). Colton J merely concluded that Article VI no longer had the effect it once did in 1800, because parliamentary sovereignty dictated that the more recent statute (and thus expression of the will of Parliament) prevailed over the less recent one. This is because one sovereign Parliament cannot bind its equally sovereign successors, so a sovereign legislative body had merely acted in accordance with its own sovereignty. QED.

In the NICA, two different (and somewhat overlapping) views emerged. For the majority, the Lady Chief Justice considered that the 2020 Act had “subjugated” Article VI. In his concurrent judgment, Lord Justice McCloskey considered that Article VI had been modified in its effect. Both were explicit that Article VI had not been repealed – expressly or implicitly.

This is where the divergence of views gets tricky. Both the Act of Union and the 2020 Act are “constitutional” statutes – this much is uncontroversial. What this means was explained by Lord Justice Laws in Thoburn v Sunderland City Council (sometimes known as the Metric Martyrs case): “In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.” Constitutional statutes, according to this principle, are not subject to implied repeal, but are subject either to express words of repeal or by words so clear that repeal is the “irresistible” conclusion.

Now, Thoburn had been a case between a constitutional statute and an ordinary one. Allister involved two constitutional statutes. One prevailing theory, explained by Mark Elliott, was that the constitutional status of two statutes cancel each other out, so, the more recent one can impliedly repeal the older one. Colton J did not cite this exact argument but appeared more or less to reason his judgment in a similar way.

The NICA, however, rejected any kind of repeal of Article VI, preferring the subjugation/modification paradigm. But this is even murkier. The UK Supreme Court had, in The Continuity Bill Reference, defined “modification” as follows:

“Without attempting an exhaustive definition, a protected enactment will be modified by a later enactment, even in the absence of express amendment or repeal, if it is implicitly amended, disapplied or repealed in whole or in part. That will be the position if the later enactment alters a rule laid down in the protected enactment, or is otherwise in conflict with its unqualified continuation in force as before, so that the protected enactment has to be understood as having been in substance amended, superseded, disapplied or repealed by the later one.”

Although this case dealt with the Scottish Parliament’s competence to enact legislation dealing with new powers available following Brexit, the point here is that an Act of the UK Parliament is only unmodified if it has “unqualified” continuation in force, i.e. that its effect in law is unchanged by any other statute. This is far from an uncontroversial view – a recent devolution reference which draws heavily from the Continuity Bill Reference (also dealing with the Scottish Parliament) has ignited debate among public lawyers about how precisely the Supreme Court views devolution (see this post by Mark Elliott and Nicholas Kilford). The point, however, is that the NICA’s reasoning appears to be at odds with that of the Supreme Court. If a later statute modifies the effect of a previous one, then according to the Supreme Court, the previous one can be taken to have been impliedly repealed. But this itself is not a settled question because of the different parliaments which enacted the two statutes.

 

History and logic

The Acts of Union were parallel statutes enacted by the (then) Parliaments of Great Britain and Ireland, which by operation of the same Acts, ceased to exist in favour of a Parliament of the United Kingdom of Great Britain and Ireland.

The Acts of Union were thus the statutes upon which the modern UK Parliament was (generally) built. The question is whether the modern UK Parliament has the legal ability to repeal (explicitly or implicitly) the very laws under which it came into existence. In MacCormick v Lord Advocate, the Lord President of the Court of Session (Inner House) said this of a similar question raised in respect of the Treaty and Acts of Union which united England (and Wales) and Scotland into one Kingdom of Great Britain:

“The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law … I have not found in the Union legislation any provision that the Parliament of Great Britain should be ‘absolutely sovereign’ in the sense that that Parliament should be free to alter the Treaty at will.”

MacCormick did not feature in the NICA’s judgment but remains as an uneasy reminder that the UK Parliament is not entirely immune to a legal grandfather paradox being unleashed. The problem, indeed, the main problem with the entire Allister case, is the process of reconciling the layered reasoning of the law, with the unconcerned facts of reality. This is especially true of matters involving constitutional law, which require clear, cogent and consistent interpretation in order to enable states to function at all.

 

Implications

The Protocol is not only a matter of lively debate in academic circles – it is a very real matter of social and political tension in NI. Allister comes at a fraught time in NI politics – Executive collapse, electoral uncertainty and increasing public fatigue. No court can solve any of that.

However, I await the Supreme Court’s views on the matter with a mixture of excitement and trepidation: excitement that constitutional law (my field of research) continues to enjoy something of a renaissance beyond the pages of academic publications, and trepidation that we, like the Nautilus, are heading into a maelstrom.

 

The ‘centre of gravity’ test and the CFSP: Continuing the saga with Case C‑180/20 Commission v Council (CEPA) on EU/Armenia relations

 

Narine Ghazaryan, Assistant Professor in EU and International Law, Radboud University Nijmegen

Photo credit: Jesper Ahlin Marceta via Wikicommons

 

Introduction

The judgment in Case C-180/20 (the CEPA case) is the next development in the interinstitutional battle over the boundaries of the Common Foreign and Security Policy (CFSP) with no signs of abating in sight. In this case, the Commission challenged the Council’s departure from the latter’s proposal for a Council Decision taken within the Partnership Council under the EU-Armenian Comprehensive and Enhanced Partnership Agreement (CEPA). Keen to follow the CJEU’s judgment in Commission v Council (Agreement with Kazakhstan) (C‑244/17, EU:C:2018:662) (the Kazakhstan judgment), the Commission removed Art 37 TEU (the legal base for treaties with non-EU countries concerning the CFSP) as a substantive legal basis in its amended proposal for a Council decision – only for the latter to opt for a new approach of adopting two separate decisions, one of which was based on Article 37 TEU, in conjunction with the relevant procedural provisions.

The splitting of a decision authorising a signature of an international agreement has happened in the past. For instance, the Council adopted a separate decision authorising the signing of the CFSP-related provisions of the Association Agreement with Ukraine on a provisional basis. This might have been viewed as necessary for the provisional application of the agreement given the political context surrounding the signature of the Agreement. Unlike the latter case, however, in CEPA it is the decision on the institutional framework of the agreement adopted on behalf of the EU within the CEPA Partnership Council that has been split in an apparent attempt to circumvent the Kazakhstan judgment.

The case solidifies the practice of applying the centre of gravity test in competence delimitation cases involving the CFSP as part of the trend ‘towards a consolidation of EU external action’ (Cremona, p 33). Arguably, it also attempts to clarify the application of the test itself.

 

Facts and Legal Background

In November 2017, the Council authorised the signing of the CEPA and the provisional application of some parts of the agreement in a decision based on Article 37 TEU and on Article 91 and Article 100(2) as well as Articles 207 and 209 TFEU, in conjunction with Article 218(5) and (7) and the second subparagraph of Article 218(8) TFEU.

Following the CJEU judgment in the Kazakhstan case, in July 2019, the Commission considered it safe to remove Art 37 TEU from the legal basis for the Council Decision on the position to be taken on behalf of the EU within the CEPA Partnership Council as regards the adoption of the Rules of Procedure of the Partnership Council the Partnership Committee, subcommittees and other bodies set up by the Partnership Council, and the establishment of the list of subcommittees. The Decision was to be based on Article 218(9) TFEU, as a procedural legal basis, and on Article 91 and Article 100(2) as well as Articles 207 and 209 TFEU as substantive legal bases.

Subsequently, Coreper decided to split the decision into two with a separate decision based on Art 37 TFEU alongside the procedural provisions in Article 218(8) and Article 218(9) TFEU for CEPA’s Title II on political dialogue and reform, and cooperation in the field of foreign and security policy. The Commission, supported by the Czech Republic, brought an action for annulment under Article 263 TFEU in April 2020. It challenged the exclusion of Title II of the CEPA from the scope of Decision 2020/245 (the main decision), as well as the choice of Art 37 TEU as the substantive legal basis for Decision 2020/246 (Title II decision), objecting in addition to the addition of the second paragraph of Article 218(8) TFEU as a procedural legal basis for Decision 2020/246. By its second plea, the Commission specifically challenged the artificiality of the Council’s approach creating different centres of gravity in order to manipulate the relevant voting rules. 

 

Opinion of Advocate General Pitruzzella

AG Pitruzzella first of all attempted to clarify the centre of gravity test by rejecting the arguments about a hierarchy existing between the elements of ‘purpose’ and ‘content’ of the measure. Instead, the application of the centre of gravity test depends on the circumstances of each case and is ‘highly pragmatic’ (para 28). While addressing the line of case law where the purpose of the measure appeared to impact the outcome of the test at first sight (Portugal v Council, as well as the Philippines judgment), the AG notes the importance of other factors which affected the findings in the relevant cases, including the context of the measure, the variety of purposes or several components (paras 29-33). He then refers to the Kazakhstan judgment as one which brought significant clarifications to the case law through applying the ‘classic’ centre of gravity test to delimiting the CFSP from TFEU competences for the purpose of the application of Art 218 TFEU (para 35-36). In addition to the ‘classic’ test, the AG notes also the centre of gravity test applied by the Court using the ‘quantitative’ and ‘qualitative’ criteria to analyse the content of the relevant international agreement (para 37).

According to the AG, irrespective of whichever test is applied, within the scheme of the CEPA the CFSP-related component is not ‘distinct from the other components’ which would require the reliance on Art 37 TEU (para 55). He then applied the Philippines judgment to the facts of the case. First of all, he considered whether the CEPA provisions related to policies, other than those identified as predominant (transport, trade and development cooperation), may also fall within that policy or whether they go beyond the framework of that policy. Based on a broad conception of development cooperation in line with CJEU case law, in his view, the agreement is first of all aimed at strengthening economic and trade cooperation aimed at promoting sustainable development (paras 57-62). The development cooperation being multidimensional in nature may be linked to Title II of the CEPA removing the need for a separate decision (para 63).

The AG then considers the second part of the two-step test applied in the Philippines judgment to identify whether the CFSP-related provisions of CEPA contain such extensive obligations that they constitute objectives distinct from those of development cooperation. Given the declaratory nature of Title II provisions, he concluded that they do not set obligations requiring a separate legal basis in Art 37 TEU (para 65-68). Based on the approach in the Philippines judgment, he concludes that Art 37 TEU is superfluous as a legal basis.

For the completeness of his analysis, the AG also addresses the possibility of applying the approach taken in the Kazakhstan judgment – the qualitative and quantitative evaluation of the provisions of the agreement – concluding in one paragraph that the answer would be the same as above (para 70). Given the answer to the first plea, the AG considered it unnecessary to answer the second plea.

 

Judgment

At the outset, the Court clarifies the issue concerning the procedural legal basis, in particular the inclusion of the second subparagraph of Art 218(8) and the relationship between Art 218 and 219 TFEU. As noted in the Kazakhstan judgment, the voting in the Council in relation to a position to be adopted on behalf of the EU in a body set up an international agreement will depend on whether the situation is covered by the first or the second paragraph of Art 218(8) (para 30). This in turn will require an inquiry into the substantive legal basis (para 31). The Court then turns to the centre of gravity test, confirming the AG’s position that there is no hierarchy between the aim and the content of the measure (32-33). Rather, all objective factors related either to the aim or the content of the measure must be considered in each specific case to determine the field covered in the relevant decision, including the identification of predominant purpose or component if the measure pursues a twofold purpose or has more than one component. The CJEU repeats the established position according to which only if the measure ‘simultaneously pursues a number of objectives or has several components that are inextricably linked, without one being incidental in relation to the other’ can such a measure be based on different legal bases, which is not possible if the relevant procedures are incompatible (para 34). The question is therefore whether the areas covered in the agreement which require qualified majority voting can be considered as predominant in terms of the content or the purpose of the agreement taken as a whole. The three main areas covered by the agreement include transport, common commercial policy and the development cooperation based on Articles 91, 207 and 209 TFEU.

As far as the content of the Agreement is concerned, the Court first of all takes a closer look at the provisions contained in Title II, including on the aims of political dialogue, domestic reform, foreign and security policy. It sides with the AG in confirming that these provisions are few in number compared with 386 articles contained in the agreement which mostly relate to trade and development cooperation. As far as the nature of obligations in Title II is concerned, the Court observes that they are programmatic without setting specific programme of actions for the parties (para 46).

As for the aims of the Agreement, Article 1 on the objectives read alongside with the preamble and the majority of the provisions demonstrate that the CEPA is a framework agreement established to advance bilateral cooperation in the fields of transport, trade and development cooperation (para 47-48). The Court adopts a broad reading of development cooperation in line with its pre and post-Lisbon case law (the ECOWAS and the Philippines judgment) which in the case of CEPA is not negated by the CFSP-related specific objectives in Article 1 on the aims of the agreement. Crucial for the Court is the fact that the enumeration of the CFSP-specific objectives in Article 1 is not ‘accompanied by any programme of action or concrete terms governing cooperation’ in the field of CFSP (para 52).

The CJEU also dismissed France’s argument that the presence of the Nagorno-Karabakh conflict should necessarily be seen as part of the context of the agreement placing its security component at the forefront. According to the Court, the CEPA includes no provisions with specific obligations concerning the Nagorno-Karabakh agreement, and the contested decisions concerning the functioning of the CEPA institutional framework do not entail any concrete measures between the parties taken based on the CEPA that might be relevant for the conflict (para 54-55).

Ultimately, the Court finds that the CFSP-related components of the CEPA are not such as to constitute an ‘autonomous’ component of the agreement, and orders the annulment of both decisions which also results in the dismissal of the Commission’s second plea (para 56-59). In line with the established position, the CJEU maintained the effect of the relevant decisions for the sake of legal certainty until the Council rectifies the position by adopting a new decision in compliance with the judgment.

 

Commentary

The main question to ask is whether the judgment merely trails the previous jurisprudence or adds any clarifications to the case law.

Council’s attempt to prevent the ‘absorption’ of the CFSP?

Despite suggestions that splitting the legal basis ‘will ensure the non-affectation between CFSP and non-CFSP procedures and preserve the special status of the CFSP in the EU legal order’ (MIadzvetskaya 2020), with the CEPA judgment the Court has rejected such an approach. Similar to the Kazakhstan judgment, there is no recourse to Article 40 TEU which further indicates that the CFSP does not have an inherently distinct character requiring strict guarding in each and every case where the division of competences alongside TEU and TFEU legal bases is contested. Rather, the CEPA judgment confirms once again that the centre of gravity test applies similar to all other cases of competence delimitation.

The insertion of Article 37 TEU by the Council in this respect comes across as an attempt to bypass the Kazakhstan judgment by artificially splitting the relevant decision. This led to the odd outcome of a joint substantive legal basis for the entire agreement and a split legal basis for a decision within the Partnership Council on the institutional framework of CEPA meant to apply to the entire agreement. The Council’s argument that the lack of objection by the Commission toward the inclusion of Art 37 TEU as a substantive legal basis when authorising the signing of the CEPA justifies its approach was rightly rejected by the AG: on its own, this fact does not justify such an outcome.

The same argument can be said to give away the underlying concern of the Council after the Kazakhstan judgment: if the decision on the adoption of the CEPA institutional framework can exclude Art 37 TFEU as its substantive legal basis alongside the relevant procedural provision requiring unanimity, can that in principle entail that Art 37 TEU can also be omitted as far as the decision on approving the agreement itself is concerned? This concern is not ungrounded since the CJEU’s proclamation in the Kazakhstan judgment that the links between EU-Kazakhstan Partnership Agreement and the CFSP ‘are not sufficient for it to be held that the legal basis of the decision on the signing of that agreement, on behalf of the EU, and its provisional application had to include Article 37 TEU’ (emphasis added, para 43).  

As a result, Art 37 TEU as such is unnecessary as a legal basis for decisions authorising the signature of framework agreements focused predominantly on trade and development cooperation. Indeed, there are already such examples, including the Framework Agreement on Comprehensive Partnership and Cooperation with Vietnam. The CEPA’s CFSP provisions could have similarly have been viewed as insufficient to necessitate a separate legal basis in Art 37 TEU for the decision approving the agreement. One can even claim that the Kazakhstan judgment casts a retrospective shadow on the inclusion of Article 37 TEU as a substantive legal basis for decisions signing trade and cooperation agreements. It is not a surprise therefore that in justifying its position in CEPA the Council raised the fact that the Commission did not challenge the inclusion of Art 37 TEU among the legal basis for the decision authorising the relevant agreement. One can therefore argue that the splitting of the decisions on the part of the Council was a reaction to the Kazakhstan judgment: the Council is keen on preventing the ‘absorption’ of the CFSP. It perhaps anticipates a further challenge to the very practice of including Art 37 TEU as a substantive legal basis for framework agreements focusing predominantly on trade and development cooperation.

What next for the ‘centre of gravity’ test?

The CEPA judgment is worthy of attention in terms of the role of the quantitative and qualitative criteria as far as the centre of gravity test is concerned.

The Court’s approach in this regard can be contrasted with that of the AG Pitruzzella. The latter considered the use of the ‘quantitative’ and ‘qualitative’ tests as second to the ‘classic’ centre of gravity test. He clearly has a preference for the two-step test used in the Philippines judgment, dedicating most of his attention to its application. Only after reaching his conclusion based on the application of the Philippines judgment, does he note that the same conclusion would have been reached if the quantitative/qualitative criterion is applied as seen in the Kazakhstan judgment.

The CJEU, on the other hand, does not make a similar distinction between the ‘classic test’ and the quantitative and qualitative criteria used in Kazakhstan. Unlike in the latter case, however, the CJEU bases its findings on a much more substantive and systematic analysis of the aim and the content of the agreement. The CEPA judgment makes an effort to interlace the quantitative and qualitative criteria with the approach used in the Philippines judgment (para 45). For instance, with reference to the content of the agreement, the Court carries out a quantitative and qualitative analysis of the relevant provisions concluding that they should be viewed with regards to the essential object of the agreement rather than in terms of individual clauses ‘provided that those clauses do not impose such extensive obligations … that those obligations in fact constate objectives distinct from those of development cooperation’(para 45).

Similarly, in relation to the aim of the agreement, the quantitative and qualitative overview of the provisions is linked to the tried and tested approach of Portugal v Council and Philippines judgments (paras 47-53). In looking at the objectives, the Court does not attempt to identify traditional CFSP legal objectives (as was suggested by Advocate General Bot in the Mauritius judgment), and merely refers to objectives which ‘may be linked to CFSP’ (para 52). It finally reaches a conclusion that the CFSP-linked elements ‘cannot be regarded as constituting a distinct component of that agreement but it is, on the contrary, incidental to the principal components’ concerning the development cooperation. As mentioned above, the Court takes a broad view of development cooperation in line with its previous case law, including ECOWAS. In fact, the broad interpretation of the development cooperation should be seen as the ‘lasting effect’ ECOWAS had made on EU external relations law (Hillion and Wessel, 582-583).  

Furthermore, in addition to the content and the aim of the agreement, its context also featured in the judgment. While the CJEU’s approach has been criticized in the past for giving significant weight to the context of the agreement (Sánchez-Tabernero, p 910), CEPA demonstrates that the context does remain one of the objective factors reviewed by the court, particularly if relevant arguments have been raised by the parties. At the same time, the CJEU is wary of artificial context constructs, such as the attempt by France to use the Nagorno-Karabakh conflict to create a security-related context for the agreement, which was rightly rejected by the Court.

 

Conclusion

The CEPA judgment should be seen as another stop in the long saga of the inter-institutional battle for competence delimitation in EU external relations. The Council, ever sensitive to guarding the CFSP, attempted to bypass the outcome of the Kazakhstan judgment only for the Court to cast more shadow on the practice of including Article 37 TEU as a legal basis for decision on signing of trade and cooperation agreements. The CEPA judgment also offers a more substantive and thoughtful application of the centre of gravity test in comparison with the Kazakhstan judgment. Judging by the past experience, CEPA will not be the last call on this matter.

 

References:

M Cremona, ‘The Principle of Conferral and Express and Implied External Competences’ in E Neframi and M Gatti (eds), Constitutional Issues of EU External Relations Law (Nomos 2018)

C Hillion and RA Wessel, ‘Competence Distribution in EU External Relations after ECOWAS: Clarification or Continued Fuzziness?’ (2009) 46 CMLR 551

SR Sánchez-Tabernero, ‘The Choice of Legal Basis and the principle of consistency in the procedure for conclusion of international agreements in CFSP contexts: Parliament v. Council (Pirate-Transfer Agreement with Tanzania)’ (2017) 54 CMLRev 899

 

The Jurisprudence of Constitutional Conflict in the European Union (OUP 2022)

 

 

Ana Bobić, Référendaire at the Court of Justice of the European Union

 

Photo credit: Antoine Montulé, via Wikicommons

 

 

It has been almost 60 years since the Court of Justice introduced the principle of primacy of EU law, but it still continually triggers debates on the nature of the EU’s constitutional order. The penetration of Union law and its peculiarities into national constitutional orders has originally created a relationship of unease between the Court of Justice and national courts with constitutional jurisdiction. The Court of Justice, convinced in the utmost value of effectiveness of Union law, is expecting all national courts to share its zeal. National courts performing constitutional review, however, tend to prioritise their respective constitutions. The main objective of my new book was thus to determine the actual application of the principle of primacy of EU law by constitutional adjudicators in the European Union, through a mutual feedback loop of contestation with the Court of Justice. The book enriches our knowledge of the incidences of, and reasons for, constitutional clashes between the European Court of Justice and national constitutional courts in the application and enforcement of EU law.

 

The conundrum faced by national courts performing constitutional review is multi-faceted and depends on the national constitutional setting in which they operate. I have thus created and used the judicial triangle as a visual representation of changes in power relations between courts over time. As I show, the judicial triangle is always unbalanced at individual points of conflict: at times in favour of the Court of Justice and its privileged relationship to ordinary national courts; at other times in favour of national constitutional courts and their authority over the national judiciary. In this context, heterarchy, as the guiding scheme of judicial interactions, becomes visible when all the imbalanced judicial triangles are regarded in aggregate. For this purpose, this book conducts an in-depth analysis of constitutional conflict across different areas of law and over time (Chapters 5 to 7). Such an approach then enables us to see the resulting judicial triangles from all case studies, which are analysed jointly in the conclusions (Chapters 8 and 9). This allowed me to paint a distinctly nuanced picture of power relations among the courts under analysis.

 

In so doing, I have relied upon the framework of constitutional pluralism, arguing it is both descriptively and normatively relevant for the web of relations in the European judicial space. Descriptively, it is characterised as a system in which we can observe a parallel operation of different constitutional sites claiming ultimate authority. These sites regularly engage in conflict, which is resolved incrementally through the auto-correct function, sustained in turn by the application of sincere cooperation and mutual respect. The actors in the system are in a relationship of heterarchy as they continually change their ranking over time. Normatively, constitutional pluralism is comprised of a shared core codified in Article 2 TEU, representing the minimum requirements for Union membership. The emergence of constitutional conflict in this constellation is a regular and desirable feature of the system that promotes a dynamic development of law and sets in place checks and balances between different sites of constitutional authority. However, when constitutional conflict reaches such extremes that the basic values from Article 2 TEU are no longer respected, even in their most minimalist interpretation, without any trace of sincere cooperation and mutual respect, we are speaking of destructive conflict that can only be resolved jointly by political and legal means. I have offered a broad-brush empirical illustration of the descriptive and normative propositions of the theory in Chapters 3 and 4.

 

Next, to corroborate these theoretical claims, I explore in great detail the three areas of constitutional conflict – ultra vires review, identity review, and fundamental rights review. The aim of this part of the book is to provide a detailed and nuanced analysis of the way the Court of Justice has expanded the self-referential system of the Treaties; the different limits that constitutional adjudicators have placed on the principle of primacy as a result; what possible solutions they envisage in the event of a constitutional conflict; and whether such solutions pertain to a constructive or destructive interpretation of the shared normative core codified in Article 2 TEU. In all three areas of review, it was possible conclusively to state that a heterarchical constellation is more conducive to cooperation, mutual respect and the will to avoid conflict. The role of national constitutional adjudicators is to keep the Court of Justice in check and control its jurisprudence in a constructive manner, and vice versa.  

 

In ultra vires review (Chapter 5), not only have Member States announced they will police the transfer of competences from the national to the EU level, but have also found individual decisions of the Court of Justice outside the Treaty mandate. Yet, in all those cases, the finding was based on previously established standards of competence control, the Court of Justice was first involved through the preliminary reference procedure, and ultra vires review was an option available only to courts performing constitutional review, rather than ordinary courts.

 

In identity review (Chapter 6), constitutional adjudicators on the national level are consistently re-emphasising their prerogative to protect the constitutional core (the Portuguese and Italian constitutional courts have both recently included the constitutional identity discourse into their jurisprudence, whereas the Belgian Cour Constitutionnelle introduced constitutional core limits to the operation of the principle of primacy). Identity review on the EU level showed that the Court of Justice defers to the national level to define the content of their specific constitutional values with wide discretion and confines its role to ensuring a common denominator for the protection of such values through the proportionality test. This area of review has further shown that without the application of sincere cooperation and mutual respect, constitutional courts that are under the control of the executive may stretch constitutional identity beyond recognition and descend into destructive conflict. The usefulness of the auto-correct function in accommodating constitutional conflict stops here: judicial interactions in destructive conflict only legitimise the captured courts' decisions, while allowing them free reign in malforming the rule of law according to the needs of authoritative tendencies of the executive. Destructive conflict thus demands joint political and legal action at both EU and national levels.

 

Finally, in fundamental rights review (Chapter 7), national constitutional adjudicators enforced substantive limits to the principle of primacy, grounded in a satisfactory level of fundamental rights protection. The Court of Justice has reacted by subscribing to the imperative of fundamental rights protection at the EU level. Through the incremental development of jurisprudence, the landscape of fundamental rights protection has improved considerably due to the jurisprudence of constitutional conflict (for example, the Court of Justice's decisions in Aranyosi and Căldăraru and C.K. as well as the annulment of the Data Retention Directive).

 

When we flip through the illustrations of all the judicial triangles presented and analysed in the book (Chapter 8), what emerges is an animation of power relations permanently shifting between the Court of Justice and national courts performing constitutional review. Such a system is complex and its operation regularly causes headaches, either for the Court of Justice or for national constitutional courts, but most commonly for legal academics trying to make sense of judicial interactions and the broader ramifications for the character of the EU’s constitutional space. It is clear that the courts under analysis often disagree. Yet, the way these disagreements have been playing out in practice tells us that they form a delicate equilibrium, built incrementally over a long period of time, which allowed them to remain predominantly constructive. Ultimately, constitutional conflict is here to stay. With many a procedural and substantive tool analysed in this book, the courts I analysed can, and predominantly do, keep it constructive, to the benefit of the EU’s constitutional order.