By Cedric Ryngaert and Tom Ruys
The United States have recently enacted legislation sanctioning persons involved in the construction of the Nord Stream 2 (NS2) pipeline, which will transport gas from Russia to Germany through the Baltic Sea and is central to the EU’s energy policy (see here). (Non-US) persons involved in the construction of the Nord Stream 2 pipeline are subject to US sanctions under the Countering America’s Adversaries Through Sanctions Act, the Protecting Europe’s Energy Security Act, and the Protecting Europe’s Energy Security Clarification Act. These sanctions are aimed at putting pressure on persons to withdraw from the NS2 project, and ultimately to scuttle it. In August 2020, things came to a head after three US senators sent a letter to a German port-operating company supporting the NS2 project. The senators warned that the port, the company and its officers exposed themselves to ‘crushing legal and economic sanctions’ by the US.
By Thomas Verellen
On 8 October 2020 the Grand Chamber of the European Court of Justice (ECJ) rendered judgment in an appeal procedure against the General Court judgment in the case of Bank Refah Kargaran (T‑552/15 and C-134/19 P). The case concerned an appeal, by the Iranian Refah Kargaran bank, against a number of Council decisions and regulations imposing restrictive measures (sanctions) on the Iranian bank. Some of these decisions had been adopted on the basis of Article 29 TEU, and others on the basis of Article 215 TFEU (the latter served to implement the former, as is customary in the field of restrictive measures). Bank Refah Kargaran challenged the Council’s decision inter alia on the grounds that the Council had not properly motivated its decisions. In a judgment issued on 6 September 2013, the General Court had agreed with that argument and had proceeded to annul the above decisions and regulations in so far as they concerned the Iranian bank.
By Thomas Verellen
Covid-19 represents a shock to global capital flows. As companies see the value of their assets tumble, they may become attractive targets to foreign investors – in particular, state-backed foreign investors less exposed to the economic fallout of the pandemic. To address what has been described as ‘opportunistic investment behaviour’ and – less euphemistically – ‘predatory buying’ practices, jurisdictions with well-established foreign investment screening mechanisms such as Australia and Canada have tightened scrutiny: the Australian government has reduced the value threshold for screening of all foreign investments to zero dollars, and the government of Canada has announced it will subject public health related investments and all investments by state-owned investors, regardless of their sector of activity, to enhanced scrutiny.
For the European Union, Covid-19 came at an interesting time. The EU recently introduced its own FDI screening framework – a mechanism which leaves the ultimate decision-making power over individual investments with Member State screening authorities, but which sets up a framework for cooperation between EU and Member State authorities. The framework will go live on 11 October 2020 and thus was not operational when the pandemic hit in the spring of 2020. Against this backdrop, this blog post explores how the EU has responded to the Covid-19 crisis and in particular to the aforementioned risk of predatory buying that flows from the pandemic’s impact on asset prices. Given the multi-level set up of the EU’s approach to FDI screening, an analysis of the EU response to this risk needs to take into account developments at both the EU and Member State levels. This blog post focusses on the EU side of the equation.
By Kees Cath
In this post Kees Cath argues in respect to the situation in Hungary that the European Commission should act without any delay to prevent further rule of law backsliding. The opinions expressed in this article are the author’s own point of view and do not represent the government’s official position.
Orbán an unlikely student of Jean Monnet?
“People only accept change when they are faced with necessity and only recognize necessity when crisis is upon them.”
Paraphrased, Jean Monnet seemed to underline the age-old adagio “never waste a good crisis”. There have been plenty of crises within the EU. Over the past few years the Union is engaged in what seems addressing one crisis after the other, from the Euro-crisis to the migration-crisis and from the Brexit-crisis to the Corona-crisis.
Yet there seems to have been one European leader – though not evidently a student of Jean Monnet – that ironically did follow this advice scrupulously, yet erroneously. The changes instituted by the Orbán government are more far reaching, and have the effect of (further) undermining the Hungarian democracy. By amongst others declaring a state of emergency, ruling by decree indefinitely – with only the Fidesz two-thirds majority in parliament to provide for a possible check or reverse – Orbán has effectively legalized his (informal) hold over the Hungarian state. Within a package of already far reaching emergency measures the high penalties for spreading ‘fake news’ stand out as particularly disheartening. Even if no journalist is (ever) sentenced, the chilling effect on an already crippled media landscape, can be further reason for alarm. With Hungary effectively in lock-down, public demonstrations against the measures, as were visible against the 2018 elections or the 2019 ‘slave law’, seem impossible. So what has happened and who has been able to respond, and if so in what way?
By Sybe de Vries
Erst kommt das Fressen, dann kommt die Moral (Bertold Brecht, 1928)
During these almost surreal weeks questions were frequently raised in the media and in politics why the EU Member States (and globally) have adopted different measures and strategies to contain the spread of the Corona virus. Especially within the context of the EU one may have expected a common approach to fight Covid-19. On the contrary, some even argued that Corona rather reveals the relatively poor status of European cooperation.
The problem in Europe is that the field of health is in principle a matter for the Member States. In most cases the EU could only adopt supportive action. Whereas paragraph 1 of Article 168 TFEU reiterates that a high level of health protection shall be ensured in the definition and implementation of all Union policies and activities, paragraphs 5 and 7 stipulate that harmonisation of national laws to protect and improve human health is excluded, and that management, organisation and delivery of medical care and health services are a matter and responsibility for the Member States. In other words, according to Article 6 TFEU, the protection and improvement of human health belongs to the EU’s supplementary competences.
By Paul Minderhoud
Thousands of irregular migrants reside in the Netherlands. This number includes migrants who have exhausted all legal remedies and whose claim to stay is rejected and therefore must leave the Netherlands on their own initiative. Since 2019, those who do not immediately do so can – for a certain period – be accommodated in one of the five recently established National Aliens Facility locations (Landelijke Vreemdelingenvoorzieningen, LVV) in Amsterdam, Rotterdam, Utrecht, Eindhoven and Groningen, supervised by the Repatriation & Departure Service of the Ministry of Justice and Security in cooperation with municipalities. These LVVs are an addition to the so-called central freedom-limiting location (Vrijheidsbeperkende Locatie, VBL), based in Ter Apel and are currently still in a pilot stage. It is the intention to extend the number of LVVs to eight locations. Migrants who are accommodated in these LVVs will have to cooperate in finding a lasting solution to their situation, which in most cases means they have to return. The existing local bed-bath-bread facilities in these municipalities and, in time, in all municipalities, must be closed. But is this closure possible in light of international obligations? Do the plans really result in ending this form of municipal facilities?
By Cedric Ryngaert and Mistale Taylor
On 24 September 2019, the Court of Justice of the EU (CJEU) rendered its judgment in Google v CNIL on the geographic scope of implementation of the right to erasure (also known as the right to be forgotten or the right to be de-referenced). The judgment has received substantial media coverage (see, e.g., here and here), but press reports have paid little attention to its legal nuances. This blogpost provides such legal analysis, and reflects on the jurisdictional aspects of the judgment,in particular on the territorial reach of decisions to de-reference search results. The post argues that the CJEU deserves credit for displaying jurisdictional reasonableness, and on that basis rejecting an obligation for search operators to de-reference search results on all versions of their search engine. However, the CJEU pays conspicuous deference to EU Member State authorities, and gives little specific guidance as to how exactly these authorities are to determine the scope of implementation of the right to erasure.
By Hanneke van Eijken and Simona de Heer
EU citizens have a political right to submit an initiative for new legislation to the European Commission. This is called the European citizens’ initiative, enshrined in Article 11 TEU, and further regulated in Regulation 211/2011. This form of direct, participatory democracy could be seen as a tool to foster citizen participation and to bring the EU closer to its citizens. It was introduced in the Lisbon Treaty as a response to even out the EU’s democratic deficit. Recent citizens’ initiatives cover issues as climate change, education for children with disabilities and evaluation mechanisms to see whether Member States adhere to European values.
From a regulatory perspective it is interesting to see whether regulation of direct democracy through the introduction of the EU citizens’ initiative is an effective tool for strengthening democracy and where its pitfalls lie. Since its introduction the citizens’ initiative has been subject to criticism as to its effectiveness. Currently, the European citizens’ initiative is being reformed. This raises questions about the effectiveness of the reformed citizens’ initiative and how it relates to parliamentary democracy. First, the weaknesses of the current citizens’ initiative will be discussed. Secondly, the reform and its achievements will be elaborated on. Finally, the relationship between parliamentary democracy and direct democracy will be examined.
By Salvatore Nicolosi
Twenty years after the European Council of Tampere that in 1999 set out the political roadmap to establish a Common European Asylum System (CEAS), the European Union and its Member States still struggle to design a solid and future-proof system. The migratory pressure on the EU increases the need for effective responses. With more than 1 million people reaching Europe in 2015 and more than 18,000 drowning at sea in the period between 2014 and 2019, a solid asylum system becomes all the more urgent.
The reform of the CEAS certainly constitutes a relevant context to reflect on the dynamics of regulation in a particular sensitive area of European integration. Nonetheless, a closer look at the ongoing reform illustrates how this lays behind the actual way forward to the realisation of the goals established in Tampere twenty years ago.
By Viktorija Morozovaite
The Google AdSense decision has come out on the 20th of March, 2019. With imposition of €1.49 billion fine it marked an end to the third European Commission’s investigation into tech giant’s practices, each resulting in spectacular penalties (together rounding up to €8.2 billion – a sum equivalent to Benelux countries’ annual contribution to the EU budget) and advancing the debate between competition practitioners and academics worldwide. Admittedly, the outcome did not come as a surprise to many – over the past decade, European Commission seem to have become the nemesis of giant tech companies with investigations into practices of Google, Apple, Facebook and Amazon. While the full decision is not published yet and it is difficult to comment on its merits, this blog post aims at distilling some of the ongoing issues, placing the decision in the broader context.