20 September 2020
Lawful composition – the EFTA Court’s approach
On 10 September 2020, the British Advocate General at the Court of Justice of the European Union, Eleanor Sharpston, was replaced by the Greek lawyer Athanasios Rantos. Most of the commentators of the incident, which stirred up a great deal of dust, focus on the question whether the termination of Ms. Sharpston’s mandate on 10 September 2020 was lawful. The following considerations, on the other hand, examine the legal situation in the event that her expulsion from the ECJ was after Brexit in line with EU law. A precedent of the EFTA Court in 2016 may be relevant in this context. Continue reading >>
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16 September 2020
A Matter of Faith
The purpose of Brexit, we have been told, is to “take back control”. It should hardly come as a surprise therefore that this involves the reassertion by Parliament of its prerogative to determine the domestic effects (if any) of international agreements within the UK legal system. Wresting this power away from Brussels goes to the very root of Brexit’s raison d’être. Moreover, why have this power if you’re not going to use it? It is in this context that the furore concerning the Internal Market Bill, presented last Wednesday by the Johnson government, should be viewed. Continue reading >>
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15 September 2020
That Depends
The controversial debate about Eleanor Sharpston’s position as Advocate General has raised a lot of questions: political as well as legal. Many of the legal questions have not been decided by the Courts, the law is ambiguous, and the circumstances with one Member leaving the European Union are unprecedented. And yet, the Court of Justice treated those questions as if the answers were straightforward and clear-cut. In doing so, the Court seems to have ignored the complexity of the legal questions and thereby undercut the effectiveness of the proceedings for interim measures. Continue reading >>10 September 2020
In the Name of Peace and Integrity?
Last Tuesday, something rare took place in Westminster. The UK Government officially announced its intention to breach the Withdrawal Agreement that it had signed and ratified a few months ago. Prime Minister Boris Johnson valiantly defended the draft by declaring that such breach is necessary in order ‘to uphold the integrity of the UK, but also to protect the Northern Irish peace process and the Good Friday agreement.’ Is that really so? Continue reading >>
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08 September 2020
A Test for Sovereignty after Brexit
Speaking in the House of Commons on the eve of the publication of the Internal Market Bill and in response to an urgent question, the Secretary of State for Northern Ireland Brandon Lewis stated that ‘Yes, this does break international law in a very specific and limited way'. Can the UK, by domestic legislation, limit the direct effect of the Withdrawal Agreement? Continue reading >>
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08 September 2020
Contested Justice
As the UK and the EU are entering the final phase in the negotiations over a post-Brexit trade deal, it has become clear that there is a fundamental clash of interests not only about fishing and governance issues but also about human rights. For people outside the UK it has often been difficult to comprehend the persistent contestation of the HRA and the European Convention, as well as their lack of public support. There are three main reasons behind this conundrum. Continue reading >>
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29 July 2020
Schrems II: The Right to Privacy and the New Illiberalism
This post unpacks the implications of Schrems II for this new, unstable, and in many instances, illiberal political landscape. A number of excellent posts on this blog have already examined the impact of Schrems II on the corporate actors that transfer EU data globally. My focus here is on how Schrems II and the CJEU’s evolving jurisprudence on the right to privacy can be read as targeting the political developments of recent years. Continue reading >>
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29 June 2020
Frankenstein’s Court
Due to Brexit, the remaining 27 EU Member States would like to remove Eleanor Sharpston, an Advocate General nominated by the United Kingdom, from the CJEU. Many have criticized this idea, claiming that a removal would undermine the judicial independence of the Court. This post argues that the position taken by the EU 27 to remove Eleanor Sharpston from the Court is actually well-reasoned and lawful while leaving her in office would lead to strange consequences e.g. that the Judges of the Court are less protected than its Advocate Generals. Continue reading >>26 June 2020
No unity in the United Kingdom
The United Kingdom has not achieved a unified approach towards COVID-19. Rather, the crisis has exposed the transformation of the UK into nations pulling in quite different directions. This post will discuss the disunity in the British response to coronavirus, focusing on the Scottish and British governments. COVID-19 illustrates the political and legal instability of the British constitution as the country exits the European Union. Continue reading >>
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29 May 2020