Implications of a “no deal” Brexit for students at UK universities

1 hónap ago

Following the “historic defeat” of PM Theresa May’s Brexit deal at the hands of the UK House of Commons – whose members overwhelmingly voted against the deal by the devastating margin of 432 to 202 – the possibility of a “no deal” Brexit seems higher than ever before, meaning a scenario in which the United Kingdom would leave the European Union immediately on 29 March 2019 with no agreements in place about what their relationship would be like in the future. Effects of a “no deal” Brexit could include the re-introduction of border checks, a severe disruption of transport and trade between the UK and the EU, compatibility issues between UK and EU drivers’ licenses – possibly requiring a special driving permit – and the lack of a transition period in the entry into force of the new rules governing the relationship of the UK and the EU.

Without further preparatory actions or commitments made by the UK government, a “no deal” Brexit would create immediate uncertainty for EU nationals in UK universities, prospective students and staff from across the EU, and for those participating in any of the Horizon 2020, Structural Funds or Erasmus+ programmes. According to advocacy organisation Universities UK, if the Brexit negotiations end without a deal in place, then:

  • there is going to be a general uncertainty on whether any commitments agreed as part of the Draft Withdrawal Agreement on citizens’ rights and continued participation in Horizon 2020 and Erasmus+ still apply,
  • there would be no agreement on implementing a transition period between the date of Brexit (29 March 2019) and 31 December 2020, during which time freedom of movement would essentially still apply,
  • there would be no certainty on what the UK’s future relationship with the EU would look like, including in areas like the mobility of citizens and access to EU programmes,

Furthermore, a “no deal” Brexit could result in the following outcomes taking effect after 29 March 2019:

  • EU nationals entering the UK could be treated as third country nationals, subject to non-EEA immigration rules and requirements,
  • the UK’s ability to participate in Horizon 2020 and Erasmus+ could cease, because there would be no legal obligation for the UK to pay any financial settlement on exit,
  • the continued mutual recognition of professional qualifications covered by the EU Directives currently in force would be uncertain.

The UK government has already put in place a number of stability measures for universities that Universities UK and other advocacy organizations in the field of education have lobbied for. These measures include a policy paper on citizens’ rights in the event of a “no deal” Brexit, confirming that the EU Settlement Scheme will continue to be implemented after 29 March 2019, allowing EU citizens and their families living in the UK to continue to be able to work, study, and access benefits and services in the UK on the same basis as they do now. Regarding the migration arrangements for EU and EEA nationals arriving after 29 March in a “no deal” scenario, the government confirmed that the individuals in question will be able to travel to and enter the UK as now, but if they wish to remain for more than three months, they will need to register for the European Temporary Leave to Remain which will be valid for three years.

With regards to Horizon 2020 funding, the UK government extended its commitment to underwrite payments of multi-beneficiary Horizon 2020 grants (i.e. those open to cooperating participants from multiple countries) awarded to UK-based applications submitted after the UK leaves the EU; however, the government is aware that access to the funding of mono-beneficiary grants (such as European Research Council and Marie Sklodowska-Curie Actions) will be lost in the case of a “no deal” Brexit. Similarly, projects originally funded by EU Structural Funds will be underwritten by the UK government until the end of the current EU budget period (in 2020) with the UK authorities continuing to sign new projects until programme closure. In the case of a “no deal” scenario, the UK government will also underwrite Erasmus+ grants agreed before 29 March 2019, covering UK university students on an Erasmus+ placement at the point of Brexit, and any projects that fall under these grant agreements but are yet to start.

EU students starting a course in the higher education institutions of the UK in 2019–20 (the first cycle post-Brexit) will remain eligible for home fee status and for financial support as per existing rules, even in the case of a “no deal” Brexit. On the topic of recognition of qualifications, the government stated that it wishes to establish a system on mutual recognition of professional qualifications (MRPQ) that covers the same range of professions as the existing EU Directive.

Universities UK has suggested a scope of further governmental actions to mitigate risk for universities, building on the aforementioned stability measures, that would help minimise any disruption in the event of a “no deal” Brexit, to provide greater certainty for the university sector over the coming months. This includes the government committing to:

  • make no substantive changes to rules governing EU migration until 1 January 2021,
  • strengthen and clarify its existing underwrites for participation in EU programmes,
  • establish back-up structures to mirror Horizon 2020 and Erasmus+ where required.

Through its general commitments, the UK government should also work on clearing up the main areas of uncertainty faced by universities in the case of a “no deal” outcome. Universities UK has suggested the following specific actions that the government should take to mitigate uncertainty and to ensure stability across the university sector in a “no deal” scenario:

  • reconsidering the policy of European Temporary Leave to Remain in order to provide reassurance to EU students starting courses that are longer than three years in duration,
  • clarifying how the underwrite for EU grants will work in practice, including who will administer funds/make funding decisions and what would be required of universities receiving funds,
  • setting out its contingency plans for replacing access to single beneficiary Horizon 2020 funds, including the European Research Council and Marie Sklodowska-Curie Actions,
  • setting out its contingency plans for replacing access to Erasmus+.

 

The briefing of Universities UK on the implications of a ‘no deal’ Brexit can be read in full HERE.
 

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CETA’s mechanism for the settlement of disputes gets green light from Advocate General

1 hónap 1 hét ago

The dispute settlement mechanism between investors and states provided for by the free trade  agreement between the EU and Canada (Comprehensive Economic and Trade Agreement, CETA) is compatible with EU law, the Advocate General of the European Court of Justice (ECJ) concluded on Tuesday (29 January), dismissing previous concerns. The agreement does not adversely affect the autonomy of EU law and does not affect the principle that the ECJ has exclusive jurisdiction over the definitive interpretation of EU law.

On 30 October 2016, Canada and the EU and its Member States signed the CETA, containing detailed provisions on trade and investment. Key to proceedings here, the Parties agreed as part of their deal to create a system by which investors and States could settle disputes over the interpretation and application of the agreement (Investor State Dispute Settlement System, ISDS). In that context, what is envisaged – as one of the CETA’s innovations – is the creation of a Tribunal and an Appellate Tribunal and, in the longer term, a commitment to the establishment of a multilateral investment tribunal. The aim is thus to establish an Investment Court System (ICS), which, in line with the Commission’s objectives to transform investment treaty arbitration into a court-like system, departs from several long-standing features of investment arbitration, including Party-appointed arbitrators and the absence of an appeal mechanism.

More precisely, on 13 September 2017, the Commission introduced a recommendation for a Council decision authorising the opening of negotiations for a convention establishing a multilateral court for the settlement of investment disputes (Multilateral Investment Court, MIC), with the aim of „having one, multilateral institution to rule on investment disputes covered by all the bilateral agreements in place” rather than one bilateral investment court for each free trade agreement. The Council formally gave its agreement on 20 March 2018, though the possibility of replacing the various ICSs by a single MIC had already been provided for by the CETA, the EU-Singapore Free Trade Agreement (EUSFTA) and the EU-Vietnam Free Trade Agreement (EUVFTA). International negotiations are taking place in the framework of the UN Working Group under the United Nations Commission on International Trade Law (UNCITRAL), which had identified the setting up of MIC as an „option for reform” of investor-State dispute settlements at the occasion of its 50th session last July. On 18 January 2019, the EU and its Member States submitted two papers to the working group. The first paper sets out in more detail the EU’s proposal of establishing a MIC whilst the second proposes a work plan for the process of the working group. The EU papers are a contribution to a multilateral discussion on ISDS reform with broad and inclusive participation of all countries and stakeholders and it remains to be seen whether the EU will gather sufficient support from its trading partners.

 Investor protection – and in particular, the above-mentioned system of tribunals, as we wrote here – became a focal point of protests against CETA when EU countries were deciding whether to back it in 2016. In autumn, the same year, the Belgian region of Wallonia threatened to block it, but Belgium persuaded it not to do so in return for certain concessions – including a request for the ECJ to give its view (full implementation of CETA in any case requires the approval by all 28 EU member countries and, for Belgium, also regional parliaments). Critics of the deal said that its provisions on investor protection give too much power to multinationals, letting them sue public authorities in special courts and effectively allowing them to dictate public policy. On 6 September 2017, before ratifying CETA Belgium asked the ECJ to assess the compatibility of this ICS with EU law (although it took no official position on the merits of its questions). The request for an opinion is structured around the following three issues: the jurisdiction of the Court, the principle of equal treatment and the requirement that EU law is effective, and the right of access to an independent and impartial tribunal.

First, Belgium observed that the ICS allows the CETA Tribunal to examine the compatibility of the provisions of secondary EU law with the relevant provisions of CETA. Advocate General Yves Bot  opined that the ICS provisions of CETA did not undermine the principle that the ECJ has exclusive competence to provide the definitive interpretation of EU law. In that regard, the Advocate General states that the reason for the establishment of a dispute settlement mechanism is the requirement of reciprocity in the protection afforded to the investors of each Party and that is consistent with the agreement not having direct effect. The Advocate General considers that the safeguards surrounding the establishment of the dispute settlement mechanism are sufficient. The Tribunal has a narrowly circumscribed jurisdiction, namely, in the event of a breach of the relevant provisions of that agreement by one of the Parties, granting compensation to the investors suffering loss.

Moreover, the Advocate General states that the dispute settlement mechanism does not affect the role of national courts and tribunals of ensuring the effective application of EU law. He noted that whilst the CETA Tribunal can interpret EU law, it must follow the prevailing interpretation of domestic law of a Party by the courts or authorities of that Party, and the meaning it places on domestic law (including EU law) cannot bind the courts or authorities of a Party. He concluded, accordingly, that „the CETA Tribunal cannot therefore issue binding interpretations of EU law”. The award therefore is „binding between the disputing parties in respect of that particular case” and the ECJ will retain jurisdiction to give a definitive interpretation of EU law.

Second, Belgium observed that the ICS under CETA could be seen as providing for a preferential judicial process for Canadian investors. The Advocate General rejected the notion that the ICS infringes on the general principle of equal treatment in respect of access to the dispute settlement mechanism and dismissed the possibility that by virtue of that access a Canadian investor may evade the financial consequences of the application of EU law. According to the Advocate General, the situation of Canadian investors who invest in the EU is not comparable with the situation of European investors who invest within their own economic area. Only the investors of each Party who invest in the territory of the other Party are in comparable situations.

Third, rejecting the Belgian argument, the Advocate General also considered that the ICS did not undermine the right of access to an independent and impartial tribunal. The Advocate General referred to the procedural safeguards in place to ensure access to the ICS by small and medium-sized enterprises, such as the ability to request that a sole Member of the Tribunal hear the case to keep costs down; the CETA Tribunal’s general discretion over costs; and the fact that the CETA Tribunal does not have exclusive jurisdiction over actions brought by investors – small and medium sized enterprises can still bring proceedings before domestic courts or tribunals where domestic law contains adequate standards of protection.

The Advocate General also dismissed concerns about the remuneration of CETA Tribunal members which Belgium had questioned as possibly undermining the right of access to an independent and impartial tribunal. There are two components to the remuneration of CETA Tribunal members, one of which is dependent on the volume and complexity of litigation brought, the other of which is fixed. The Advocate General considered that this system was appropriate for the hybrid nature of the ICS and the fact that CETA Tribunal members will initially not be working on a full-time basis. Finally, the Advocate General stated that CETA has specific rules in place regarding the appointment and termination of CETA Tribunal members to guarantee their independence and impartiality, and that these rules are appropriate to the specific characteristics of the ICS’s hybrid nature.

***

The opinion is likely to shape the future of extra-EU investment arbitration, as the Advocate General highlighted that „what is at issue here is the definition of a model which is consistent with the structural principles of the EU legal order and which, at the same time, may be applied in all commercial agreements between the European Union and third States.” It will affect future international agreements negotiated by the EU, notably, it will have a strong impact for the Commission’s plans to establish a MIC (discussed above).

If the opinion is adhered to by the ECJ, it confirms the viability of the EU’s mooted ICS in terms of its co-existence with the EU legal order, and permits the EU to continue to pursue adoption of the ICS on a wider scale across all of the EU’s trade agreements. The Advocate General’s opinion is not determinative – the ECJ’s judgment is anticipated later this year.  Although the ECJ usually follows the opinion, the divergence of views between the Court and Advocate General Wathelet in Achmea was a striking example that this pattern admits exceptions. In its Achmea ruling (Case C-284/16 of 5 March 2018), the ECJ held that the EU has competence to conclude agreements establishing an international court „provided that the autonomy of the EU and its legal order is respected”.

Pending the ECJ’s ruling and the completion of the necessary ratification process, CETA provisionally entered into force on 21 September 2017 with the exclusion of the ICS – among other controversial provisions.

 

For a list of references, click HERE.

Author: Petra Ágnes Kanyuk, PhD student, University of Debrecen, Faculty of Law

 

Source of the images used:

https://blogdroiteuropeen.com/2018/06/29/laudience-dans-lavis-1-17-sur-le-ceta-par-edoardo-stoppioni/

https://www.ots.at/topthema/ceta-4

http://kathleenvanbrempt.be/europa/economie/geen-steun-voor-handelsverdrag-met-canada-ceta-met-omstreden-investor-state-dispute-settlement/

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Expressions about Public Persons: The Case-Law of the European Court of Human Rights and the New Challenges of Social Media

1 hónap 2 hét ago

Introduction

The Internet is the most important development in communication technology since the press. Thus it affects the practice of freedom of speech and press. It enables much more equal opportunities for communication, as individuals can publish their views via the Internet and the content they create is available almost all over the world.[1] Social media has an important role in the individual’s self-expression today. This new media has several different features compared to other mediums. Beside the multitude of advantages, these new technologies brought along new problems and dangers too. There are new challenges both for the legislative authority and the courts all over the world.[2] The question is raised: how the courts can react to these changed circumstances in the course of human rights adjudication? Is it possible to apply the existing human rights measures or do the features of the new media require the development of new measures?

In this paper I will analyse the precedent-based adjudication of the European Court of Human Rights and the new challenges brought by social media regarding expressions about public persons. The aim of this paper is to provide a short overview of the Court’s case-law from this aspect and highlight the recent developments in connection.

First, I will introduce the measures and the well-distinguished system of criteria created by the Court with the dynamic and evolutive approach to its case-law regarding expressions about public persons. Secondly, I will examine how the Court can apply the previously developed measures and system of criteria in case the expression was published on the internet, especially on social media, which has several different features compared to other mediums. I will furthermore analyse the Court’s approach to the new challenges of the internet and social media through a concrete judgment.

The General Measures in the Case-Law of the European Court of Human Rights

The case law of the European Court of Human Rights has an important role in the Member States of the Council of Europe because it affects their national human rights approaches. For this reason, it is inevitable to constantly analyse the Strasbourg Human Rights mechanism.

It is widely recognized that the case law of the European Court of Human Rights has some characteristics of precedent-based adjudication. It regularly follows those judgments that have precedential significance in its own case law. Nevertheless “cogent reasons”, earlier erroneous decisions or societal changes can shift the Court’s interpretation, thus it uses the technique of overruling in such cases. When a new case is clearly or reasonably different than the precedent, the technique of distinguishing is applied by the Court.[3] On the one hand, the precedent-based adjudication makes the Court’s case law consistent and accountable. On the other hand, the Court can respond to the changing circumstances and with this dynamic and evolutive approach to its case law, and thus the Court develops the protection of human rights in Europe. With this approach the Strasbourg Court creates a well–distinguished system of criteria regarding interpretation of human rights which may make a progressive impact on national judicial interpretations.

In the public discourse, expressions about public persons are significant and essential to a democratic society. Members of society may freely express their opinion on those who have an influence on public discussions and those who make decisions regarding public interest. Accordingly a constitutional tradition became a common constitutional principle: public persons must tolerate more criticism compared to other individuals. The Court consequently stated that the limits of acceptable criticism are wider as regards public persons.[4]

However, it doesn’t mean that every libelous attack on a public figure should be protected. In these cases there is a conflict between human rights. On the one hand there are freedom of expression and freedom of the press. On the other hand, there is human dignity, or more specifically the right to reputation and honour which derives from it. In democratic states, the aim is to try to find an appropriate balance between these rights. In the course of human rights adjudication it is the judges task to reach this balance. These cases are very complex and a number of factors are taken into account when deciding whether the free speech right trumps the human dignity and reputation rights.

As numerous other courts, the ECtHR has also made a distinction between statements of facts and value judgments. It says that while the existence of facts can be demonstrated, the truth of value judgments is not susceptible to proof.[5]

In the Court’s case law, true statements of facts relating to public persons are protected by freedom of expression. According to the Court, the utterance of libelous facts goes beyond the right to freedom of expression provided in Article 10 of the Convention even if it was a criticism about a public person.[6] Consequently, in the Court’s point of view the protection of freedom of expression doesn’t cover the knowingly false statement of fact because it exceeds the limits of permissible criticism.[7]

Beyond that, the Strasbourg Court applies one kind of diligence measure. Applying this measure, the Court examines the negligence of the speaker regarding the truthfulness of his or her statement of fact. When the speaker acted in good faith and based on the available information he or she reasonably thought of as true, his or her allegation of fact is protected by freedom of expression, even if finally turns out that it was false.[8] And there is another measure of diligence in the Court’s practice regarding professional journalists. Their false statements are protected if they were acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism.[9]

As regards value judgments, the Court says that it would be an impossible requirement to prove their truth and it would infringe the freedom of opinion.[10] The Court held that freedom of expression also covers a degree of exaggeration, or even provocation[11] and the satirical or humorous opinions in the public discourse.[12] Accordingly, opinions are protected at the highest level.

The Court also held that it doesn’t mean that there are no limits to these expressions. The Court added that „offence may fall outside the protection of freedom of expression, for example where the sole intent of the offensive statement is to insult.”[13]

However, it could be difficult to distinguish between statements of facts and value judgments. The ECtHR experienced that most of the time the national courts rank the expressions about public persons in the category of statement of fact producing a strong restriction on freedom of expression. For this reason, the ECtHR established that the value judgments also need some factual basis because value judgments also can be excessive if they don’t have any. The Court argues that in those circumstances, the state’s interferences can be proportional.[14] The new subcategory – value judgment based on facts – is protected by freedom of expression. The necessity of the link between the value judgment and its supporting facts can be different from case to case. The Court decides on this connection in the light of the specific circumstances of the cases.[15]

Besides the abovementioned questions, there are other circumstances of these cases that are examined by the Court. In the Strasbourg Court’s practice the subject of the expression is significant. According to the Court’s case-law, those expressions which deal with public interest or contribute to the public debate are protected by Article 10 at the highest level.[16] The reason of this is that a democratic society can work only if free and open debate regarding matters of public interest is guaranteed.

The Court also observes some other relevant criteria in the balancing exercise regarding expressions about public persons, such as: how well known is the person concerned and what is the subject of the report; the prior conduct of the person concerned; the method of obtaining the information and its veracity; the content, the form and the consequences of the publication; and the severity of the sanction imposed.[17]

The Court consequently reiterates that in these cases criminal sanction only in exceptional circumstances can be proportional and would be compatible with the Article 10 of the Convention.[18]

The New Challenges of Internet and Social Media

In general, the Strasbourg Court stated that Article 10 of the Convention applies to the Internet as means of communication. The Court also noted that in light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and in facilitating the dissemination of information generally.[19] At the same time, the Court also assessed that there are higher risks of harm regarding human rights posed by contents on the Internet than in traditional press media.[20] According to the Court’s point of view, this characteristic of the Internet justifies some restrictions on freedom of expression. Regarding defamation cases, the Court established that freedom of expression on the Internet also covers satire and criticism. However, Article 10 doesn’t guarantee unlimited freedom of expression, especially when the published expression may cause serious harm to the reputation and rights of other individuals. For this reason, the national courts have to make a fair balance between these two rights.[21]

In the recent past, in a case against Iceland the Court had to review such a balancing exercise of the national authorities. In the case of Egill Einarsson v. Iceland[22] the Court had to make a decision on whether an insulting Instagram post about a well-known person is protected by freedom of expression or infringes the right to respect for private life.

The applicant was a public figure in Iceland, who for years, published articles, books, blogs, appeared in films, on television and other media. In 2011, an 18-year-old girl reported to the police that he and his girlfriend raped her. In 2012 another accusation was made by a woman against Mr. Einarsson: the accuser stated that he committed sexual offence against her a few years earlier. In 2012, the Public Prosecutor dismissed the procedure because the evidence was not sufficient to lead to a conviction.

Afterwards, a leading newspaper in Iceland published an interview with Mr. Einarsson, in which the rape accusation against him and its falsity was discussed. His picture was published on the front page of the magazine. On the same day, Mr. X published an altered version of the front-page picture of the magazine with the subtitle “Fuck you racist bastard” on his account on Instagram, the well-known online picture sharing application. Mr. X had drawn an upside down cross on Mr. Einarsson’s forehead and written “loser” across his face. Mr. X. believed that his Instagram account was private and the post would be available only to his followers. However, it turned out that the account was public. The following day, a newspaper published an online article about the post and the original interview.

Afterwards, Mr. Einarsson lodged criminal defamation proceedings against Mr. X. The national courts found that Mr. X’s post as a whole contained his opinion about Mr. Einarsson and it had been a part of general public debate because Mr. Einarsson was a well-known person in Iceland and he had to accept being a subject of public discussion. The national courts considered the post as a value judgment and decided that it is protected by freedom of expression.

Mr. Einarsson turned to the Strasbourg Court and complained that the decisions of the national courts violated his right to respect private life guaranteed by Article 8 of the Convention. He stated that Mr. X.’s post was a statement of fact because he accused Mr. Einarsson of rape, even though he had known that the case against him was dismissed by the prosecutor. He argued that the Instagram post was a factual statement because it is possible to prove its falsity.

The Government argued that this case was different from cases that concerned the media publishing information about individuals and therefore the principles created previously by the Court could not be applied in the same way in the current case. The Government pointed out that the questioned post was published by an individual who wanted to express his value judgment about a public figure. Accordingly, the domestic courts applied the standards in conformity with the Convention.

The Court first reiterated the above-mentioned relevant general principles regarding balancing between freedom of expression and reputation and the Internet.

After these considerations, the Court evaluated the following circumstances of the case. The Court stated that the limits of acceptable criticism are wider in this case because the applicant was a well-known person in Iceland. The Court also agreed with the domestic courts’ findings that the applicant’s views attracted attention, and that there was a public discussion regarding the complaints against him regarding sexual violence and he participated in it. However, the Court stated that the term “rapist” has an objective and factual nature. The statement was a serious nature and capable of damaging the applicant’s reputation. The Court argued that even disputed public persons do not have to tolerate being publicly accused of violent criminal acts without such statements being supported by facts.

The Court established that domestic courts failed to strike a fair balance between the applicant’s reputation and Mr. X’s right to freedom of expression. The Court held that there has been a violation of Article 8 of the Convention. Two judges wrote dissenting opinions and stated that the national courts struck a fair balance between the conflicting rights. It shows that there is a discussion between the judges regarding the measure of freedom of expression on the Internet.

Conclusion

This paper summarized the well–distinguished system of criteria of the Strasbourg Court for making decisions regarding expressions about public persons and pointed out the new challenges in connection with such expressions on the Internet, especially social media. As we have seen, the Strasbourg Court perceived that the Internet as a new media has several different features compared to traditional media. Consequently, the Court started to examine these characteristics and to interpret the Convention’s articles with respect to them. However, based on the analysis of the above-mentioned case, it seems that the Court’s practice is not well-balanced yet in this regard. In my opinion, the Court didn’t evaluate sufficiently the characteristics of the social media and the significance of the posts on it in this case.

My conclusion is that the Court should consider carefully its own earlier measures and it should try to find an appropriate way to apply them in these new circumstances or try to find new measures in connection with social media. In my opinion, the Court can reach this aim using the abovementioned techniques of precedent-based adjudication.

 

Author: Éva Balogh, Assistant Professor, University of Debrecen, Faculty of Law

[1] See more detailed Ash, Timothy Garton (2016): Free Speech, Ten Principles for a Connected World. New Haven, London: Yale University Press, pp. 7-72.

[2] Barendt, Eric (2007): Freedom of Speech. Oxford: Oxford University Press, pp. 451-458

[3] Wildhaber, Luzius (2000): Precedent in the European Court of Human Rights. In: Mahoney, Paul–Matscher, Franz–Petzold, Herbert–Wildhaber, Luzius (eds.): Protecting Human Rights: The Euroepean Perspective. Studies in memory of Rolv Ryssdal. Köln – Berlin – Bonn – München: Carl Heymanns Verlag KG, pp. 1538-1545.

[4] Lingens v. Austria, Judgment of 8 July 1986. § 42.

[5] Lingens v. Austria, Ibid. § 46.

[6] Keller v. Hungary, Decision as to the Admissibility of Application no. 33352/02 by László Keller against Hungary, 4 April 2006.

[7] Nilsen and Johnsen v. Norway, Judgment of 25 November 1999. § 49.

[8] Lepojić v. Serbia, Judgment of 6 November 2007. §§ 77–78.

[9] Niskasaari and Otavamedia Oy v. Finland, Judgment of 23 June 2015.§ 58.

[10] Lingens v. Austria, Ibid. § 46.; Oberschlick v. Austria (No. 1.), Judgment of 23 May 1991. § 63.

[11] Oberschlick v. Austria (No. 2.), Judgment of 1 July 1997. §§ 31–34.; Lopes Gomes da Silva v. Portugal, Judgment of 28 September 2000. §§ 34–37.

[12] Klein v. Slovakia, Judgment of 31 October 2006. § 48.

[13] Uj v. Hungary, Judgment of 19 July 2011. § 20.; Genner v. Austria, Judgment of 12 January 2016. § 36.

[14] De Haas and Gijsels v. Belgium, Judgment of February 24 1997. § 47; Oberschlick v. Austria (No. 2.), Judgment of July 1 1997. § 33; Jerusalem v. Austria, Judgment of February 27 2001. § 43.

[15] Feldek v. Slovakia, Judgment of July 12 2001. § 86.

[16] White, Robin C.A.–Ovey, Clare (2010): The European Convention on Human Rights, Fifth Edition. Oxford-New York: Oxford University Press, 428.; Uj v. Hungary, Ibid. §§ 23-24.

[17] Axel Springer AG v. Germany, Judgment of 7 February 2012. § 89–95.; Ungváry and Irodalom Kft. v. Hungary, Judgment of 3 December 2013, § 45.

[18] Raichinov v. Bulgaria, Judgment of 20 April 2006. § 50.

[19] Times Newspapers Ltd (nos. 1 and 2) v. the United Kingdom, Judgment of 10 March 2009. § 27.

[20] Editorial Board of Pravoye Delo and Shtekel v. Ukraine, Judgment of May 5 2011. §§ 63-64.

[21] Fatullayev v. Azerbaijan, Judgment of April 22 2010. § 102.

[22] Egill Einarsson v. Iceland, Judgment of 7 November 2017., See also Milkaite, Ingrida (2018): Egill Einarsson v Iceland: the Court deals with an offensive Instagram post. In: Strasbourg observers, January 19.

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Recent twists in the „Uber saga” – the Spanish and French affair

1 hónap 3 hét ago

The embattled firm has navigated through a number of legal challenges and regulatory disputes in various countries.

In December 2017, for instance – as we wrote here – the European Court of Justice (ECJ) ruled in the Uber Spain case (C‑434/15) that the firm should be considered a transport company instead of a technology service that connects drivers and riders, meaning that it should be subject to the bloc’s transport regulations. Just a few months after the Luxembourg court ruled that the ride-hailing app should be regulated like a traditional taxi company, it has dealt another legal blow to Uber.

Since then, Spanish taxi drivers has been complain that rival drivers from ride-hailing apps – such as Uber or Cabify, also known as VTCs (Tourism Vehicles with Chauffeur) – compete unfairly since they do not face the same regulations and costs. The drivers Madrid started an indefinite strike on Monday to protest competition from VTCs, following their colleagues in Barcelona who began striking on Friday.

In September, Spain’s government gave the the companies four years to comply with regulations granting them just one new license for every 30 taxi licenses. „It is not right that after working so many years like we have been, they now just want to sweep us out of the way,” said taxi driver Francisco Sanchez. „They (politicians and ride-hailing services) are all in it together.” Barcelona taxi drivers have been on an open-ended strike since Friday, when the Catalan government unveiled its regulatory plans for VTC (vehicle for hire) licenses, which ride-hailing apps in Spain use to operate. Authorities had been proposing a 15-minute early-booking rule. On Wednesday, Barcelona taxi drivers will vote on the new deal and decide whether to end the strike. On Tuesday night the companies Uber and Cabify said they would consider leaving Barcelona if the early-booking rule is imposed.

In Madrid, taxi representatives and regional authorities walked away from the negotiating table late last night after failing to reach an agreement. The former want a similar deal to what their Barcelona colleagues have secured from Catalan officials. Under those terms, users of ride-sharing apps will have to book the service one hour in advance. Unauto VTC, the association representing the sector, said 80 VTCs had been damaged in Barcelona and 50 in Madrid during the strike.

The ECJ in April 2018 ruled in the Uber France SAS case (C‑320/16) that the French government was within its rights to pass a criminal law in 2014 banning some illegal transport services without first notifying the European Commission of its plans. Tech companies are granted an additional layer of protection from national legislation in the EU with draft laws affecting them needing to be approved by Brussels – national legislation affecting digital services needs to be pre-notified to Brussels to ensure it is not distorting the single market. Uber had challenged France’s bypassing of the notification system after it was taken to court by a taxi driver in Lille for running its UberPop service that used unlicensed drivers. Uber was fined €800,000 under the law in 2016 after two of its executives were found to have run an illegal service.  The ECJ said that since Uber was offering a transport service under EU law, the obligation to notify the Commission in advance did not apply; the EU’s 28 member states are allowed to „prohibit and punish the illegal exercise of a transport activity such as UberPop without having to notify the commission in advance of the draft legislation laying down criminal penalties for the exercise of such an activity”.

At national level, on 10 January 2019, Uber lost an appeal in France brought by a former driver who wanted to be recognised as a full employee. The ruling overturns one from last year (on February 2018) when a French court decided in favour of Uber, saying its drivers could refuse customers if they wanted to and were not told how many hours to work by the firm. The present judgement was hailed as a „landmark decision” by the plaintiff's attorney, Fabien Masson and follows a similar court decision last month in Britain that Uber should give its drivers workers' rights, including the national minimum wage and holiday time. The Uber driver’s victory is also similar to a recent case in November 2018 which saw the Cour de Cassation rule that a delivery rider using the services of an online food delivery platform Take Eat Easy, may be considered to be an employee of the platform provider despite being labelled self-employed.

The former driver sued the company in June 2017, two months after Uber had deactivated his account, to have his „commercial accord” re-evaluated as an employment contract. He was seeking reimbursement for holidays and expenses as well as contract termination and „undeclared work” indemnities. The Paris court ruling specifies that the contract between Uber and its former driver was „an employment contract” –  for the first time in France! – because the driver was dependent for his work on the app. The court also noted that the driver had signed a „registration partnership" with Uber which did not allow him to choose his own clients or set his own rates. Uber in effect exercised „control” over the driver by actively discouraging him from turning would-be clients away. In response, Uber announced that it will reappeal the ruling in La Cour De Cassation, France's highest appeal court. A Uber spokeswoman said that the reappeal was to „preserve flexibility” where „drivers can decide to connect in real time and without any requirement of exclusivity.”Drivers choose to use the Uber application for the freedom to connect to it when they want” she added. Uber has long maintained it is simply a service provider, connecting people needing a ride with drivers – either amateurs or professionals, depending on the country – in about 630 cities worldwide.

 

For a list of references, click HERE.

Author: Petra Ágnes Kanyuk, PhD student, University of Debrecen, Faculty of Law

 

Source of the image used:

https://www.verdict.co.uk/uber-appeal-rejected/

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At a „hat trick of judgements” against Uber – the company loses UK case on worker rights

1 hónap 4 hét ago

​Uber has lost its latest court bid (on 19 December 2018) to stop its British drivers being classified as workers, entitling them to rights such as the minimum wage and holiday pay, in a decision which jeopardises the taxi app’s business model.

An „early Christmas present” for Uber drivers

A majority of judges at the UK’s Court of Appeal, the second-highest court in the land, ruled in favor of Uber drivers James Farrar and Yaseen Aslam, who in 2016 successfully argued at an employment tribunal that they were employees working for the company, rather than self-employed. „They approve the reasoning of the Employment Tribunal, which relied on a number of features of Uber’s working arrangements as being inconsistent with the driver having a direct contractual relationship with the passenger,” the Court of Appeal said in a summary. Master of the Rolls Sir Terence Etherton, with whom Lord Justice Bean agreed, said that the tribunal was „not only entitled, but correct” to find that each of the claimants was driving for Uber as a worker. Dismissing Uber’s appeal, he added: „as to the reality, not only do we see no reason to disagree with the factual conclusions of the (tribunal) as to the working relationship between Uber and the drivers, but we consider that the (tribunal) was plainly correct.” Lord Justice Underhill, dissenting, said drivers should only be treated as working from the moment they accept a trip. He said the issues raised in the appeal were matters of policy which Parliament was „better placed” to consider than the courts. He added: „The whole question of whether and how to adapt existing employment law protections to the development of the so-called gig economy and in particular to the use of service-provision platforms such as Uber, is under active review by the Government at present.”

Uber said it would appeal the verdict, meaning the legal process will continue. „This decision was not unanimous and does not reflect the reasons why the vast majority of drivers choose to use the Uber app,” said a spokeswoman. „We have been granted permission to appeal to the Supreme Court and will do so.” The firm said Uber drivers already earn more than the living wage in London, a non-compulsory hourly rate of £10.20 ($12.90) that takes everyday living costs into consideration. „If drivers were classified as workers they would inevitably lose some of the freedom and flexibility that comes with being their own boss,” Uber said. Nevertheless, the firm has more than 45,000 licensed drivers operating in London and over 3.5 million riders in the UK capital using its app, and it also announced a tie-up with insurance provider AXA earlier this year to offer European drivers insurance coverage for injury, sickness and family leave payments. Despite this, Uber has previously told policymakers that if it was required to pay such benefits to the circa 50,000 drivers operating on its platform in the UK it would cost its business „tens of millions” of pounds.

Court battles over definitions

In November 2017, the Employment Appeal Tribunal dismissed Uber’s appeal against an earlier tribunal ruling from 2016, that former drivers Yaseen Aslam and James Farrar were workers at the time they were operating for Uber. But, at a hearing in October, the company’s barrister Dinah Rose QC said the finding that Uber drivers were workers ignored the fact that its relationship with drivers was „typical of the private hire industry”. Uber was not unusual” because of the relationship between it and its drivers, „but because the Uber app enables it to operate on a much larger scale than traditional minicab companies”, she argued.

The initial employment tribunal found Uber’s agreements with drivers contained „fictions, twisted language and even brand new terminology”, and that the contracts „did not correspond with the practical reality”. However, Rose said that the contractsreflected the true relationship and terms of the agreements between the parties”. She added that both tribunals had „erred in law” in concluding that the pair were workers, submitting that they had „wrongly disregarded the written contracts in which the parties' agreements were recorded”. In the meantime, unions are keeping up the pressure on the ride-hailing giant, calling a drivers strike two months ago and urging Uber to immediately apply the tribunal judgement and implement „employment conditions that respect worker rights for drivers, including the payment of at least the minimum wage and paid holidays”. Before the October hearing, hundreds of precarious workers attended a demonstration organised by the Independent Workers Union of Great Britain (IWGB), which represents Aslam and Farrar.

The Court of Appeal decision followed a case that was concluded in June 2018, when UK firm Pimlico Plumberslosing at every stage of the dispute – lost an appeal at the UK Supreme Court, arguing that those it sent out to repair leaking pipes and malfunctioning dishwashers were self-employed and not workers. Being self-employed in Britain entitles people to fewer benefits than those who are hired directly by companies. Freelancers and independent contractors are granted basic health and safety protections, but not a minimum wage, holiday pay or breaks. The claim was brought by Gary Smith, from Kent, who worked for Pimlico Plumbers as a plumber and heating engineer for six years until 2011, when he suffered a heart attack. He claimed his subsequent request for a three-day week was rejected, the Pimlico Plumbers van he rented was taken away, and he was dismissed. The firm disputed Smith’s assertion that he was sacked because he wanted to work fewer days.

Some aspects of Smith’s conditions resembled self-employment, such as the entitlement to refuse work, the judgment said, but others „betrayed a grip on his economy inconsistent with his being a truly independent contractor”. These included the fact that he wore a branded uniform, had a tracker in his branded van and carried an identity card. An employment tribunal ruled that Smith was a worker, but not an employee. Pimlico appealed this decision but both the Employment Appeal Tribunal and the Court of Appeal backed the tribunal’s finding. The Supreme Court’s decision paved the way for Smith to take action against Pimlico Plumbers as a worker, including a claim that he was unfairly dismissed. What is more, it could definitely have wide implications for workers’ rights, as the present case demonstrates.

Every driver matters

Uber, which could be valued at $120 billion in a flotation, has faced protests, regulatory crackdowns and licence losses around the world as it challenges existing competitors and rapidly expands. Unions argue that the gig economy – where people often work for various firms at the same time without fixed contracts – is exploitative, whilst Uber says, as stated above, that its drivers enjoy the flexibility and on average earn much more than the minimum wage. The firm also pointed out that its practices have been widely used for decades in Britain by minicabs, private hire vehicles which cannot be hailed in the street like traditional black taxis.  The IWGB attacked Uber for appealing court decisions which have gone against the firm. „It is becoming increasingly ridiculous for so-called ‘gig economy’ companies to argue that the law is unclear when they lose virtually every tribunal and court case,” said General Secretary Jason Moyer-Lee. Tim Roache, general secretary of the GMB union (general trade union in the UK) expressed that: „we're now at a hat trick of judgements against Uber – they keep appealing and keep losing. Uber should just accept the verdict and stop trying to find loopholes that deprive people of their hard won rights and hard earned pay.” Employment lawyer Nigel Mackay also stressed that „...this is the third time that the drivers have been victorious in their fight for workers' rights but Uber has yet to give their drivers what three legal decisions have ruled they are entitled to holiday pay and to be paid at least the national minimum wage.”

Commenting on the decision, Rachel Farr, also an employment lawyer, suggested the judgement could have complications for other gig economy platforms, bolstering those that argue such workers „deserve a better deal”. Though she also emphasized the case-by-case nature of employment classification decisions. „This decision will have an impact both across the gig economy and in more traditional sectors and will give encouragement to claimants in other cases which are awaiting a hearing or stayed pending the outcome,” she said in a statement. „But just because Uber lost, it doesn’t mean that others will: each case will be considered on its specific facts, including the contractual terms between the parties and what actually happens in practice. Andrew Chamberlain, deputy director of policy at the Association of Independent Professionals and the Self-Employed, also highlighted that: „The first thing to remember is this wasn't a ruling on all self-employment or even the rest of the gig economy...the fact is most people in self-employment and the gig economy enjoy their flexibility and are happy with their status... Self-employment is dynamic, always changing and very diverse.”

Food delivery startup Deliveroo, for example, has so far prevailed in UK courts – recently, in November 2018, the High Court – against union-backed attempts to gain collective bargaining rights by challenging its classification of couriers as independent contractors after a UK employment tribunal judged that Deliveroo riders are self-employed – and could not be considered workers. In this regard, the Court pointed out that the riders had a genuine right to find a substitute to do their job for them, they were able to pass a job to a substitute, which means they were not obliged to provide a „personal service”. 

A reform package of „baby steps”?

At the same time the government has been consulting on updating employment law to take account of tech-fuelled changes to working patterns. Days before the present Uber decision, it set out a package of workplace reforms, which the government describes as the biggest in over twenty years. The plan is based on the findings of a review of modern working practices by Matthew Taylor, chief executive of the Royal Society of Arts and built on reforms outlined earlier in 2018. It is said that platform-based working – including the likes of Uber or Deliveroo – offers „genuine two-way flexibility” for firms and workers, and can „provide opportunities for those who may not be able to work in more conventional ways”. Among the main plans announced by the Business Department are:

  • the formula to work out their holiday pay will be made fairer;
  • zero-hour contract workers will get the „right to request” a more „predictable and stable” set of hours;
  • workers will be considered „continuous workers” – with more rights – even if their service is broken by up to four weeks (currently it's just one week);
  • an escape clause that lets firms hire agency workers on lower wages than staff is being closed (the Swedish derogation will be repealed in the UK - stopping firms holding workers on long-term contracts but with periods of little to no work);
  • workers will get a „written statement” of their rights on day one (currently it’s only available to full employees after two months and this includes sick leave and maternity or paternity leave);
  • firms that have shown „malice, spite or gross oversight” in an employment tribunal can be fined £20,000.

But despite some gig economy platforms standing accused of exploiting workers, the government’s package does not look set to require a radical reworking of existing business models – and unions have attacked the reforms as lacking substance, warning its a „reluctant baby step” and pointing out that, for example, a right to request a more stable contract doesn’t add up to much of a rights advance. „The long-drawn history of the Uber case shows that the current law is not easy for businesses and those who work for them to understand. Clarifying such a complex area of law is easier said than done and it remains to be seen what this promise will actually mean,” Farr noted. On the contrary, the aforementioned firms appreciated the commitment: „We welcome more clarity from the government and look forward to working closely with them to make sure drivers can keep all the benefits that come from being your own boss,” said an Uber spokeswoman. Deliveroo said it would work with the government to ensure the interests of its riders can be advanced.

**************

To conclude, we should keep in mind the following thoughts of Andrew Chamberlain: „What this latest twist in the Uber saga does show, however, is just how complex this area is, and how much it takes to prove who is and isn't self-employed... This case is only the latest example of how our creaking, outdated employment statuses simply aren't keeping up.”

 

For a list of references, click HERE.

Author: Petra Ágnes Kanyuk, PhD student, University of Debrecen, Faculty of Law

 

Source of the images used:

http://www.completenewsng.com/uber-appeals-uk-court-case-on-drivers-right-of-worker-status/
https://money.cnn.com/2016/10/28/technology/uber-drivers-workers-rights-uk/
https://www.gettyimages.ca/detail/news-photo/demonstrators-hold-signs-reading-every-driver-matters-news-photo/1055468216

 

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Brexit: Happy Marriage and Divorce

2 hónap ago

“Nobody wants to speak about divorce on the wedding day”.
Abraham Lincoln
 

Introduction

This article focuses on one of the most essential challenges for the European Union – Brexit, a process in motion since June 2016 and still shrouded in uncertainty at the present time. No one could have ever thought that the UK would leave the EU, but the referendum made it clear that the desire of the British people to regain sovereignty and take back control is favorable to being a Member State and benefitting from the Union. It is predicted that the UK will leave on Friday, March 29, 2019. However, no one knows yet how and by what conditions due to the fact that there is disharmony between the MPs and the prime minister of the UK – Theresa May – and due to the fact that there shall not be better offer by the EU than a withdrawal agreement. This article deals with the “marriage and divorce” of the UK and the European Union. Therefore, there shall be a short survey of the circumstances of the UK’s accession, the origin of the rights to withdrawal, a short summary of the reasons that lead to the UK leaving, and the last paragraph will discuss the withdrawal agreement that is currently on the table and review the possible future steps that could be taken by the “John Bull”.[i]

The Accession of the United Kingdom to the European Economic Community

In 1957, when the founding states of the European Economic Community[ii] signed the Treaty of Rome they asked Britain whether it fancied hanging out to see what might happen, Britain said thanks, but no thanks.[iii] Despite this, the British government realized that the development of the Community would affect the British role in world politics. Therefore, they joined the European Community in 1973, 16 years after it was first set up as a project to promote peace and prosperity in Europe.

However, the UK had many obstructions in joining the EEC, particularly due to two rejections. The UK had submitted its first application to join in 1961 under Conservative PM Harold Macmillan, but this application was vetoed by French President Charles de Gaulle in 1963. Consequently, the UK had made a second application, under Labour PM Harold Wilson, yet it was again blocked by de Gaulle. He claimed that Britain was not fundamentally European and more linked to America. He thought Britain would be “an American Trojan horse”.[iv] Moreover, Winston Churchill has always wanted to make it clear that the US is the most important partner of the UK and Britain would only act in conjunction with this country. Accordingly, Churchill told Charles de Gaulle one time that “every time we (British) have to decide between Europe and the open sea, it is always the open sea we shall choose”.[v] Therefore, de Gaulle has always been against the UK Accession to the EEC and in the absence of his support, the UK had no chance to be a Member State of the Community. Finally, after de Gaulle had relinquished the French presidency in 1969, the UK made a third and successful application for membership, under Conservative PM Edward Heath. The Treaty of Accession came into effect on 1 January 1973 alongside similar treaties with Denmark and Ireland.[vi] In February 1974, Wilson returned to power after the victory of the Labour Party in the British general election. He himself had sought British accession to the EEC in 1967, during his first tenure as Prime Minister. He severely criticized the compromises accepted by his successor, Edward Heath, when the Treaty of Accession was ratified in 1972. Therefore, he immediately called into question the terms for the United Kingdom’s accession to the EEC.[vii] As a consequence, on 5 June 1975, a referendum was held on whether the United Kingdom should remain part of the Community. The British people voted to stay in by 67% to 33%.

The Referendum: Leave or Remain

The UK was in the first wave of new entrants to join the original members of the European Community on 1 January 1973 (with Denmark and Ireland) — and it is set to be the first to leave on March 29, 2019, due to the referendum that was held on 23 June 2016, where on the question “Should the United Kingdom remain a member of the European Union or leave the European Union?”, almost 52% of the British people opted for “Leave” while only 48% chose “Remain”.[viii] The referendum map shows that the Scots and the Northern Irish, as well as the metropolitan areas of England, voted to stay in the EU, whereas peripheral England and Wales voted for leaving.

The reasons that lead the UK to leave are divergent. On the one hand, many people asserted that this referendum represented an imperial throwback.[ix] The UK became “just another European power” after accession and there was no possibility to be the first in the presence of France and Germany. In spite of its influence in the EU by being the driving force behind the creation of the Single Market, free trade policy and the enlargement process, the UK never fully matched the political influence of France and Germany, although it was, alongside them, one of the “big three” of Europe.[x] Therefore, the main slogan of the Leave campaign, “Take back control” had a resonance that the Remain campaign, based on economics, could not match.[xi] Moreover, the Leave campaign asserted that regaining the sovereignty of the UK was essential in order to “put in place our own policies and laws on our economy, including industry and energy”; “to improve the UK’s position as the fifth largest economy in the world by taking back control of our finances and trade deals. Britain is now in a position to dictate trade agreements with the rest of the world”; to “stop sending £350 million every week to Brussels and instead spend it on the UK priorities.”[xii] In their eyes, Brussels was bureaucratic, arrogant, wasteful, undemocratic, with a desire to control the British people in agriculture, judiciary, and government. Further, leaving the EU could solve one of the main issues – migration – by telling Europeans and Asians to pack up now and go ‘home’.[xiii] Thus, the opinion that “a better, friendlier relationship with the EU is much safer than giving Brussels more power and money every year” has emerged.[xiv]

It is remarkable that British people were not aware of the question of the referendum. Specifically, the meaning of Brexit and even the meaning of the EU. According to Google, Brits were searching the following information: “What is Brexit?", “What is the EU?”, "what happens if we stay in the EU?", the day after they voted for leaving. However, due to all the above-mentioned reasons and the unawareness of the people, the UK is leaving, but there remains a big question – how and by what terms?

The Right of Withdrawal

Just as nobody speaks about divorce on the wedding day, the European Economic Community had no desire to declare withdrawal rights since its establishment, nor has the European Union thought about it till the entry into force of the Treaty of Lisbon in 2009. One might notice that the conditions of withdrawal are enshrined in international law, particularly under Article 62 of the Vienna Convention that says “a state can withdraw from a treaty only, if there is a fundamental change of circumstances, which have occurred in relation to those existing at the time of the conclusion of that treaty”.[xv] Its Article 59(1)(a) also says that “A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject-matter and [it] appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty.” However, since 2009 the procedures of withdrawal from the EU have been governed by a separate EU law provision which specified the generally applicable rules of international law. According to Article 50 of the Treaty on European Union (TEU), “any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”[xvi] State sovereignty in this context is very broad because of the rule which does not require the state to give any formal reason for its decision. It is satisfactory that the state notifies the European Council of its intention to leave the Union. As a consequence, ‘the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union’.[xvii] As it is known, no country has left the EU before.[xviii] The UK will be the first country to leave by the terms offered: either through a well-negotiated withdrawal agreement or without any deal.

The Withdrawal Agreement

The Withdrawal Agreement (WA) on the future relationship between the UK and EU was endorsed by leaders of both parties on 25 November 2018. The British government has to lay these terms before the Parliament ahead of the parliamentary debate and vote on the approval of the document which sets out the terms of the UK’s smooth and orderly exit from the European Union, somewhat like the “terms of divorce” covering an economic partnership, a security partnership, and agreements on areas of shared interests. The Majority of British lawmakers are against the deal due to various reasons. For instance, the Parliament says that the UK shall leave the Customs Union and shall be able to diverge from EU regulations, while the WA would see the UK remain in the Customs Union as a non-voting country. According to the WA, Britain will collect customs duties for the EU as they do now and allow the EU to decide their trade policy with no right to be consulted or to vote on any trade remedies it sees fit to take. This means that during the transition period, the Brits must follow all EU rules for “goods placed on the market”,[xix] a market the UK will not participate in. It is worth noting that none of the EU competences appeared in Brussels without the legitimation of the UK,[xx] but the WA promises a different reality. Moreover, the MPs also argue that they need to take back control over the British money, but the agreement provides that the UK must apply EU law on VAT, customs duties, excise and indirect taxes, and provide funds to the EU budget in accordance with the current budget plan until December 2020. This sum has been generally estimated at £39 billion. It is money for nothing.[xxi]

One of the most painful articles of the WA is Article 127, which says “Union law shall be applicable to and in the United Kingdom during the transition period,”[xxii] and Article 86, saying “The ECJ shall continue to have jurisdiction in any proceedings brought by or against the United Kingdom before the end of the transition period,”[xxiii] while MPs believe that Britain has to be an independent nation and leave the jurisdiction of the ECJ and restore the supremacy of national courts. Additionally, there is no possibility of “membership without accession” or “unfinished integration” like Switzerland or Norway, but one might note that the British case is different, because the Swiss and Norwegians are hesitating and are still before the “wedding ceremony”, whereas the British are already after the divorce. Therefore, the atmosphere in the family is different in these two situations.[xxiv]

It is not arguable that Mrs. May’s cabinet is largely ready to accept above-mentioned terms in order to secure a deal by March and provide some reassurance to businesses. Theresa May says that “Brexit means Brexit,” and she is going to deliver the will of the British people. For that, her Brexit deal needs the backing of 320 lawmakers, more than half of the 639 MPs that vote in Westminster. If no Withdrawal Agreement can be agreed upon, the UK becomes a ‘third country’—this is the ‘no deal’ scenario.[xxv] Further, no deal means uncertainty about the protection of the more than 3 million EU citizens in the UK, and over 1 million UK nationals in EU countries to continue to live, work or study as they currently do, while the WA could offer guarantees for them. Another essential topic is the Irish “hard border”. Right now, the border between the Republic of Ireland and Northern Ireland is open. If the UK leaves without the deal, everything turns upside down by establishing a “hard border” with checkpoints, border crossings and other infrastructure. These could seriously slow trade and other economic activity.[xxvi]

Despite readiness of the May’s government of the unfavorable terms of the WA for the UK, on 15 January 2019 May’s Brexit deal has been rejected by the House of Commons. It was the largest defeat for a setting government in history by 230 votes. (The deal was voted down 432 to 202 in the House of Commons). It truly shows how unpopular is the Brexit deal for MPs due to above-mentioned reasons and due to the fact that in their eyes this is not what British people voted for in the referendum. Former foreign secretary and leading Brexiteer Boris Johnson said it was a “bigger defeat that people have been expecting” – and it means the deal is now “dead”. Consequently, due to the biggest failure, not only Labour leader Jeremy Corbyn, but also many British lawmakers have tabled a vote for no confidence in the government. Therefore, all in all, we could have with this government or new one a no deal scenario, a second referendum, a general election, remaining in the EU or it is not excluded to stop “the clock of the Article 50” in order to be achieved a better deal.

*   *   *

To conclude, I would say that ending 43 years of marriage is not as easy as the Brexiters thought it would be, because the EU is more developed in all aspects, the Single Market is more effective, the role of the European Court of Justice is crucial in the European integration and in those circumstances the Brits face a hard obstacle in which no one knows exactly how to break the deadlock. As Antony Hilton argued “Brexit is not about economics, it is about the kind of country people think they want to live in and the kind of people they think they are. It is not a factual matter, it is like faith: you believe or you don’t – and that’s why the outcome is uncertain.”[xxvii] No one knows what the British people want to do. Where the UK is heading in this time of uncertainty is unclear, but what is quite clear is that the United Kingdom is set to leave the European Union at 11:00 p.m. London time on March 29, 2019. Besides the rejection of the Brexit deal, the UK is still on course to leave on 29 March, but this defeat will define the manner of the departure.

 

For a list of references, click HERE.

Author: Giorgi Gogokhia, European and International Business Law LLM student, University of Debrecen, Faculty of Law

[i] Typical Englishman or the English people in general.

[ii] France, Germany, Italy, Belgium, the Netherlands and Luxembourg

[iii] Henley, J. (2016) “Britain and the EU: the story of a very rocky marriage”, The Guardian, 23 June [online]. Available at: https://www.theguardian.com/world/2016/jun/23/referendum-britain-and-the... [Accessed: 11 Jan, 2019]

[iv] Jordan, P (2018) “Charles de Gaulle – the unlikely prophet of Brexit”, the Queen Mary University of London, 27 June, [online]. [Accessed: 11 Jan, 2019] Available at:

https://www.qmul.ac.uk/media/news/2018/hss/charles-de-gaulle--the-unlike...

[v] Troitiño D.R., Kerikmäe T., & Chochia A. (Eds.). (2018). Brexit History, Reasoning and Perspectives. Springer, V.

[vi] Norway also applies, but it does not join, after a referendum on membership was failed

[vii] CVCE.EU, (2017) “The United Kingdom's accession to the EC”, [online]. Available at:

https://www.cvce.eu/en/education/unit-content/-/unit/dd10d6bf-e14d-40b5-... [Accessed: 11 Jan, 2019]

[viii] Bloomberg, (2016). “EU Referendum: Final Results.” http://www.bloomberg.com/graphics/2016-brexit-referendum/ [Accessed: 12 Jan, 2019]

[ix] Jack, I. (2017) “The big white men of Brexit are a throwback to Britain’s imperial past”, The Guardian, 28 January https://www.theguardian.com/commentisfree/2017/jan/28/white-men-brexit-britain-imperial-past [ 12 Jan, 2019]

[x] Hughes, K. (2016) “UK Spirals into Political Crisis after EU Vote”, Economic & political weekly, Vol. 51 (25).

[xi] Ibid. See, reference n7 above, VI.

[xii] Ibid.

[xiii] Shobha, D. (2016) “Why did Britain opt for Brexit?”, The HINDU, 12 July. https://www.thehindu.com/opinion/op-ed/Why-did-Britain-opt-for-Brexit/ar... [Accessed: 12 Jan, 2019]

[xiv] Ibid. reference n7. 215.

[xv] The Vienna Convention on the Law of Treaties, Article 62.

[xvi] The Treaty on European Union, Article 50.1

[xvii] Ibid, Article 50.2 Also, that agreement shall be negotiated in accordance with Article 218(3) of the TFEU.

[xviii] If we does not count Greenland, which was the part of Denmark and left the EU in 1982 (Denmark stayed).

[xix] Briefings for Brexit, (2018) “The Seven Deadly Sins in the draft Withdrawal Agreement”, available at:

https://briefingsforbrexit.com/the-seven-deadly-sins-in-the-draft-withdr... [Accessed: 13 Jan, 2019]

[xx] Troitiño D.R., Kerikmäe T., & Chochia, A. (Eds.). (2018). Brexit History, Reasoning and Perspectives. Springer, 104.

[xxi] Ibid, reference n21.

[xxii] Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as endorsed by leaders at a special meeting of the European Council on 25 November 2018, Article 127.

[xxiii] Ibid, Article 86. See also Article 87-89 about the ECJ jurisdiction.

[xxiv] Ibid, reference n22, 110.

[xxv] Meaney, A. (2018), ‘No Withdrawal Agreement? What happens next?’. The compelling economics. https://www.oxera.com/brexit-no-deal-port-delays/ [Accessed: 13 Jan, 2019]

[xxvi] Hughes, K. (2016) “UK Spirals into Political Crisis after EU Vote”, Economic & political weekly, Vol. 51 (25).

[xxvii] Hilton, A. (2016) “The London Evening Standard”, the Evening Standard, 25 February.

 

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„That ship has sailed...?” the UK should be able to change its mind about Brexit, according to the Advocate General

3 hónap 1 hét ago

Advocate General Campos Sánchez-Bordona proposes that the European Court of Justice (ECJ) should declare that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU. The ruling date has been set for December 10, just a day before the national Parliament’s vote on Prime Minister Theresa May’s much-maligned Brexit agreement. Regarding the issue, it seems that the United Kingdom isn't united at all at the moment...

Brief Brexit-background

Article 50 allows any EU member state to leave the bloc. It was invoked by the British government following the historic referendum on 23 June 2016, when roughly 52 percent of voters chose „leave” and 48 percent went „remain” – in Scotland and Northern Ireland, the majority of voters wanted to stay in the European Union, while the majority in England and Wales voted in favor of leaving. The UK triggered the article on 29 March 2017, starting a two-year countdown to secure a divorce deal before leaving the EU.

Since then, the whole situation has been turned upside down. A hard core of campaigners has pushed for a second referendum to overturn the result, including the former Labour Prime Minister (PM) Tony Blair.  By contrast, Brexit supporters compared the EU to the sinking „Titanic”  and Jeremy Corbyn, the aforementioned party’s leader today, – who, resisting the rerun of the vote, told the BBC in January „...that ship has sailed,” on UK remaining in EU – only a few months ago, said he did not know if he would vote „in” or „out” if given a second chance... At this point in time, the landmark 585-page agreement, which extracts Britain from the EU after more than four decades of membership, has proved politically toxic in Westminster: everyone from hardcore Brexiteers to pro-EU Brits finds aspects to dislike. Which clearly shows – keeping to the metaphor – that a lot of water has flowed under the bridge.

Old debate, new chapter

Meanwhile, a new chapter has opened in the Brexit debate: on last Tuesday (4 December), ECJ’s Advocate General advised the Court that the UK should be allowed to reverse procedure, in other words, Westminster could „stop the clock” on Brexit. The opinion, which isn’t binding, comes at a crucial moment for PM Theresa May, who’s trying to convince Parliament to back the deal she brought back from Brussels (until the vote which is due to be held on this Tuesday), but faces opposition on all sides.

Last year, pro-Remain lawyer Jolyon Maugham, along with a group of Scottish and English politicians asked a court in Scotland whether, having initiated an EU exit procedure under Article 50, a country can revoke the decision without other member states’ consent. Their hope was that, if the ECJ does rule in favor of unilateral revocation, it could pave the way for a „people's vote” on May’s Brexit deal with an option to remain. Finally, the court referred the question to the ECJ – which is already a frequent target of Brexit opponents – in October. The hearing came just two days after the UK agreed with the EU on the divorce terms at a special summit in Brussels, where European leaders warned British politicians they won’t get a better offer because there is no „Plan B”.

The Brexit ministry tried to „kill the case” and prevent it reaching the EU Court, but lost its final attempt last month to derail the case after the country’s Supreme Court refused to hear an appeal on blocking the referral to the EU judges, whose power over British law many pro-Brexit supporters want to sever. Lawyers for the Scottish and English politicians behind the case, argued that legal certainty needs to come before politics. „Undoubtedly in the current circumstances it is politically charged, but it is a question of European law,” said Gerry Facenna, who represented two English lawmakers. „Parliament has the power to decide and it is the parliament that needs to have certainty about the legal framework.”

The UK declared that the case is essentially pointless because the government has no intention of backing out of Brexit and the Court shouldn’t interfere, as Richard Keen, the UK’s lawyer underlined: „If the Court enters the field of parliamentary debate prematurely, then it does risk the accusation from one side or another that it is influencing the legislature or the executive in the determination of a highly charged political issue.” At the hearing of the case, he added that „In Greek myth, Pandora was given a large box on her wedding, which she was warned not to open... We respectfully plead that the Court should not open this box.” However, in line with the UK’s reference to Greek myth, Aidan O’Neill, the lawyer for the Scottish lawmakers, concluded by saying that „...what came out of Pandora’s box was not simply knowledge of the world’s evil, but ultimately hope, hope in and for a dangerous time.”

What Britain should know about...

The issue is so complicated because while Article 50 tells member states how to start the process of leaving the bloc, it offers no help on what to do it they change their mind. In a clear and detailed opinion, Sanchez-Bordona said that the UK (and any other member state that might follow in its footsteps) can revoke its Article 50 procedure within two years after it began and before a formal withdrawal treaty is signed. He pointed out that under Article 50, a country only declares its „intention,” not its decision, to exit. So ending the process, according to the advocate general, would be a manifestation of the withdrawing state’s sovereignty – a word especially dear to Brexiters. According to Sanchez-Bordona, a country could revoke an Article 50 notice „until such time as the withdrawal agreement is formally concluded.” He also highlighted that it was essential that Members of Parliament (MPs) knew they could stop the Brexit process if they wished.

The Advocate General rejected the arguments by the European Commission and EU governments, that revocation of Article 50 can only happen with the unanimous backing of the remaining 27 nations. This would be “incompatible” with Article 50, he said. He also rejected the UK government’s position that the case is purely hypothetical and therefore inadmissible. „The dispute is genuine, the question is not merely academic, nor premature or superfluous, but has obvious practical importance and is essential in order to resolve the dispute,” he argued. He also highlighted that „...the relevant time to dispel doubts as to whether the notification of the intention to withdraw is revocable is before, not after, Brexit has occurred and the United Kingdom is inexorably immersed in its consequences.”

But the opinion is not in favour of an absolute right of unilateral revocation. There are two conditions in particular which need to be fulfilled. The first condition is that the revocation must be made in accordance with the member state’s constitutional arrangements. This mirrors the requirement under Article 50 that the initial decision to leave must be in accordance with the member state’s constitutional arrangements.  This requirement probably means that the UK Parliament would need to pass new legislation, though there is an argument that the notification legislation may contain an implied power of revocation. If a new act is required, this would somehow have to be passed by Parliament before departure. In theory such urgent legislation is possible, but usually not in respect of a contentious matter.

The second condition is that the revocation must be in good faith. It should not be an attempt to stop and restart the clock so as to improve the departing member state’s negotiating position. Such an abuse of process would mean that the notification would be invalid. In other words, the EU can at least insist on the revocation being sincere even if they are obliged to accept an unilateral revocation. That requirement will be the most difficult for the UK to meet. As it stands there is a referendum result which provides a political mandate, and this mandate was supported by a majority of the MPs returned at the previous general election. Brexit is also the official policy of the government and it is supported by the official opposition. For revocation to be in good faith, however, would seem to mean a fundamental political shift, it would mean that Brexit was cancelled.

Opinion means only opinion?

While Sanchez-Bordona’s opinion is purely advisory, the Luxembourg-based Court usually follows such advice. „The meaning of Article 50 is an easily grasped issue on which everyone has an opinion, so this is not the sort of case in which the advocate general’s opinion is automatically followed,” said David Anderson, a lawyer at Brick Court Chambers in London. „It is the confidence with which the advocate general has expressed himself, rather than the likely persuasive effect of his opinion, that leads me to think the court is of essentially the same view,” said Anderson, who’s pleaded more than 150 cases at ECJ.

The ruling will be handled by the full court, which in this case means 25 judges. Having such a large number is very rare. University of Essex’s professor of EU law Steven Peers said this could make it harder to predict because judges aren’t used to having to confer with so many colleagues. Still, in this situation, „once a preponderant view has become evident, it may well be that the judgment will go through relatively easily,” said Anderson. The one point which the Court may want to refine could be the risk of a possible abuse of a right to revocation, said Peers. The ECJ could find „that the prospect of a member state revoking its Article 50 notification and then sending another notification to gain more negotiation time is too big a risk,” said Peers. „It will come down to whether they think the risk of unilateral revocation can be dealt with by a good faith rule, or whether they will just rule it out.”

ECJ – at the speed of light

As Koen Lenaerts, the Court’s president promised a rapid ruling at the beginning of the case, the ECJ has been „reacting, in judicial terms, at the speed of light,” according to one lawyer, to deliver a ruling on how the Brexit process could be reversed. It’s a far cry from the normal procedure at the Court, which is often criticized for taking too long. Even cases that have been given so-called fast-track status can get bogged down in procedural wrangling and translations.

The EU’s highest court sought to explain its lightning speed toward issuing Monday’s landmark ruling on whether the UK can change its mind about Brexit. In a rare step, the ECJ issued a series of tweets seeking to put the record straight after people suggested that delivering a judgment on Monday is politically motivated. As it has been mentioned before, it will come the day before Parliament votes on PM Theresa May’s highly criticized withdrawal agreement.

The so-called expedited procedureallows a national court to request that its case be treated urgently in light of the special circumstances,” the EU tribunal added. „Using this procedure reduces the deadlines for the various stages and prioritizes treatment of the case within the court.” But it’s not the first time the Court has responded quickly in a crisis: back in 2001, judges ruled in just over two months in a case on foot and mouth disease; its average time to hand down a judgment in so-called urgent preliminary cases has been between 2.2 months to 2.9 months since 2013.

Mixed reception

Remain campaigners have hailed the legal opinion, saying it greatly boosts their efforts to stop the process of exiting the EU. Chris Bryant, a Labour MP campaigning for a second EU referendum who became involved in the legal action in Luxembourg, said the advice meant “the terms of the Brexit debate have fundamentally shifted”. Bryant said it finally killed off claims by Theresa May that the UK could choose only between her widely criticised deal or no deal at all. „The real choice is now clear: a Brexit deal negotiated by the government, or staying in the EU. It is imperative that the final say on this is handed back to the public because only the people of the United Kingdom can sort this out,” he said.

But not everyone was happy about the advice to the EU’s top court. Nigel Farage, a Member of European Parliament who rigorously campaigned for Brexit, said it shows „every effort is being made on both sides of the (English) Channel to stop Brexit.” Downing Street officials downplayed the significance of the legal opinion and insisted the question remained hypothetical, since the UK government had no plans to reverse Brexit. “The position of the government has always been that it will not be revoked. That remains the case,” a spokesman said. “You should be careful on what’s happened today. It’s an opinion from the advocate general; it’s not a final verdict of the court.” UK government sources also believe the opinion strengthens May’s hand. One source said that if the European court’s position increased the chances that Brexit could be stopped, the pro-remain block would be under even greater pressure not to sabotage the PM’s deal in this week’s crucial Commons vote.

There are still three days before the Brexit summit, and officials in Brussels know a lot can happen before then. That’s why they haven’t made firm plans about Thursday’s discussion. On signing an agreement with the British PM last month, EU officials – as Theresa May as well – described the draft withdrawal treaty and accompanying political declaration on the future relationship as the deal – the only deal possible”. Despite of these facts, others – like former Italian PM, Romano Prodi and former British Foreign Minister Boris Johnson – suggested it would still be possible to find a negotiated settlement in the increasingly likely event May suffers a heavy defeat in the Commons. „What people want to hear now is not stuff about leadership elections and personalities, what they want to hear is that there a plan to get out of this mess,” leading Brexit campaigner Johnson stated, who also feels deep sense of personal responsibilityfor Brexit, and for everything that has happened.”

Difficult relationship – Europe ‘à la carte’?

It might seem that the EU would welcome the UK back with open arms if Brexit were canceled. „The door remains open,” European Commission President Jean-Claude Juncker and European Council President Donald Tusk have often said. European Commission Vice President Frans Timmermans said „much has changed” since the UK voted to leave the EU in 2016. „As far as I’m concerned, the UK is always more than welcome to stay,” he stated at the European Socialists’ congress in Lisbon on Saturday. The leaders of Germany and France, the EU’s most influential countries, have also expressed hope that the UK would stay. But whether it’s really desirable for the EU to keep the UK within the fold is another matter.

Even before Brexit was on the agenda, the UK wasn’t exactly popular in the bloc. According to a 2017 paper by Marco Fantini and Klaas Staal, the UK has been the country that has garnered the least support from other member states in the European Council, which means its policy preferences have been the least aligned with those of other member states. In recent years, it’s been by far the most outvoted country in the Council. 

Even though the level of agreement in the European Council has been generally high and the UK has only dissented in about every eighth case, it voted against the majority most frequently on budgets, foreign and security policy and international development, which are especially important areas for the EU today. What is more, the UK is the EU member state with the most opt-outs from EU agreements. It refuses to think about joining the euro or the common border area, and it’s haggled relentlessly over every EU project that required giving up even a small part of its sovereignty. 

****

If the ECJ endorses the Advocate General’s views on Monday, it could kickstart a fresh legal battle between UK government lawyers and remain campaigners that is expected to end in the Supreme Court early next year. The opinion means Britain has a wonderful opportunity to be readmitted to the Block – but not necessarily in their hearts...

 

For the list of references, click HERE.

Author: 

Petra Ágnes Kanyuk, PhD Student, University of Debrecen, Faculty of Law

 

Source of the image used:

https://www.wsj.com/articles/the-great-brexit-breakdown-1544215917?ns=prod/accounts-wsj

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