10 June 2024
Waiting for Kinsa
On 18 June 2024, the Court of Justice of the European Union will sit as a Grand Chamber in a hearing addressing the compatibility of the so-called Facilitators Package with the principle of proportionality set out in the EU Charter of Fundamental Rights (CFR). The Kinsa case (previously named Kinshasa) provides an opportunity for the CJEU to counteract the trend towards overcriminalisation of humanitarian action that has taken hold across the EU. This blog highlights the ways in which the Facilitator Package fails to take account of important fundamental rights and why the criminalization of solidarity that it has facilitated is not an inevitability but a political choice. Continue reading >>
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05 June 2024
From Strasbourg to Luxembourg?
KlimaSeniorinnen has established a remedy which, in EU law, is not easy to locate and may actually be unavailable in light of restrictive CJEU case law. Whatever one’s views on this restrictive case law, it is a fact that the EU Charter of Fundamental Rights now obliges the CJEU to do as much as it can to accommodate the KlimaSeniorinnen remedy and to interpret the relevant TFEU provisions flexibly. One may assume that, sooner or later, the CJEU will be confronted with a KlimaSeniorinnen claim. If the CJEU were to declare such a claim inadmissible, it will put itself in the corner of courts refusing to engage with climate change policies. That would be unfortunate for a court that has long been at the forefront of legal progress.
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15 May 2024
The New Transgender Ruling in Czechia
In a recent decision in the case of N.G. (Pl. ÚS 52/23), the Czech Constitutional Court (CCC) addressed the pressing issue of trans persons’ rights, more specifically the requirements for legal gender reassignment, involving (often involuntary) sterilisation and castration. When compared to the earlier decision in T.H. (Pl. ÚS 2/20), the new ruling represents a major shift. In fact, the CCC changed its legal position by 180 degrees, giving preference to protecting individual rights over deferring to the legislator’s choices. Continue reading >>
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20 February 2024
The CJEU’s Feminist Turn?
In Case C-621/21, the Grand Chamber of the Court of Justice of the European Union (CJEU) held that women in general and women facing domestic violence in their country of origin in particular, qualify as a protected ‘social group’ under EU Directive 2011/95 and thus avail themselves for refugee status or subsidiary protection in the Common European Asylum System. This contribution applies the perspective of feminist approaches to international law to critically analyze what this decision means for women and victims of gender-based violence – in- and outside of the European Union. Continue reading >>
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13 October 2023
A Hidden Success
Following the EU General Court’s dismissal of the complaint of WS and other asylum seekers against Frontex in its ruling on September 6, 2023, scholarly commentary has largely expressed disappointment. However, a more optimistic way of reading the judgement is also possible. By declaring the lawsuit admissible, the court confirmed that factual misconduct by Frontex can be addressed with action for damages claims – and this in itself is a major step forward in the system of fundamental rights protection in the European Union. Continue reading >>
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12 September 2023
The Price of Transatlantic Friendship
While the citizens of most EU Member States enjoy visa-free travel to the US, citizens of Bulgaria, Romania and Cyprus do not. Following the Commission’s repeated refusal to activate the reciprocity mechanism in EU visa law to remedy this inequality in access to visa-free travel, the European Parliament asked the CJEU whether the Commission was under an obligation to do so. The Court answered in the negative, holding instead that the Commission had wide discretion in this regard. Its reasoning centers the sensitive political nature that visa retaliation vis-á-vis the US implies, while failing to instill a sense of urgency in working towards equal treatment of EU citizens. This threatens to perpetuate a situation in which the advantages of supranational integration in the context of the Schengen acquis are permanently withheld from nationals of Romania, Bulgaria and Cyprus. Continue reading >>16 May 2023
Strawberry Fields Forever
Reading the brilliant blog post of my colleague Teresa Navarro, one may get the impression that the situation in Doñana is principally the epitome of an ongoing electoral process. However, the threats to the ecological integrity of that unique natural space emanate from the very origins that justified its protection. The current crisis is but the culmination of the constant and serious threats, caused by the proposed bill to legalize new irrigation and aggravated by incompetence and lack of responsibility of the state, regional and local authorities ignoring the requirements of EU law. Continue reading >>
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04 November 2022
Uniform Interpretation and Primacy of Union Law in the Dialogue of the Courts
The issue of uniform interpretation and primacy of Union law raises a fundamental question concerning the allocation and distribution of judicial power in the European Union. From the point of view of Union law practice, however, the discussion, which is now beginning with renewed vigor, seems strangely out of touch with the times. Without offering any solutions or "last words" in this debate, some remarks on the current EU treaty law and its interpretation are in order. Continue reading >>
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02 November 2022
Between preservation and clarification
When assessing the liability rules in the DSA it is evident that the its emphasis has been on preservation of the E-Commerce Directive's rules. However, that does not mean that nothing at all has changed. In fact, a closer look reveals that in some respects a notable evolution has taken place. Continue reading >>
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27 October 2022