Archive for the ‘rule of law’ Category

Javier García Oliva: Sentencing the Catalan Separatists: The Painful Vindication of Equality Before the Law and Separation of Powers

As the dust settles following Miller (No. 2)/Cherry, tension inevitably mounts over the next instalment of the Brexit saga, and how the Prime Minister will interpret his commitment to respecting the Benn Act. Against this backdrop, it is interesting to speculate as to whether recent events in Spain will have any impact upon his decisions, because the Tribunal Supremo in Madrid has just sentenced the Catalan politicians who chose to disregard both the Spanish Constitution and the courts. In short, although cleared of the most serious charge of rebellion, the majority were convicted of the lesser (but still extremely grave) offence of sedition, whilst others were found to be guilty of misusing public funds. 

Even though the incarcerated separatists and their followers argue that this was a political decision, maintaining that they are prisoners of conscience, there is no evidence to support such an allegation. Indeed, it flies in the face of undisputed facts, given that their illegal acts are neither denied nor in doubt. Whilst such a rallying call for protest and sympathy was widely anticipated, being effectively their only remaining strategy in pragmatic terms, there is little, if any, objective basis to justify it. The politicians concerned knew that they were breaking the law, but hoped to generate enough pressure to avoid sanction. No State committed to the Rule of Law could allow them to succeed.

It is no accident that early indications from the Spanish legal community are almost universally in agreement with the verdict, and that mainstream figures from both left and right-wing parties equally endorse its inevitability. As the Spanish premier Pedro Sanchez observed, all citizens must be equal before the law, and nobody in these proceedings has been judged for their ideas. It is rightly accepted that an ideological commitment to Catalonia’s independence is an entirely legitimate position, and it is widely recognised that separatists have as much right to the political arena as anybody else. The men and women facing substantial jail terms are in that situation because of their actions, and these have been declared wrongful not as the result of some subjective moral or political assessment, but because they were in clear contravention of Spain’s 1995 penal code.

There have been many twists and turns in relation to the separatist Catalan politicians at the centre of this maelstrom (a synopsis of them can be found in previous blogs). However, for present purposes, the key fact is that in 2017 they chose to wilfully defy court rulings and arranged an unconstitutional referendum at the tax-payers’ expense. At that point, they effectively placed themselves above the law. It is also important to remember that they were fully aware that violence and casualties were likely to ensue in such a situation, but pressed ahead regardless.

Without a doubt there is scope for debate about the rights and wrongs of events prior to this point. On the one hand, the intransigence of Rajoy’s regime in refusing to even enter into dialogue about Catalonia and its future was an understandable cause of deep frustration and bitter resentment. On the other hand, though, it should be recalled that the Puigdemont regime had itself been accused of abusing due process in Catalonia’s Parliament, and that 52 opposition members had left the chamber in protest at the manner in which legislation enabling a referendum was passed. Consequently, the separatist faction never possessed an unsullied claim to be knights in shining armour, galloping in to defend the interests of the whole Catalan community, a consideration worth stressing, because concerns about the probity of Puigdemont’s executive were largely overlooked by the Anglophone media. Nevertheless, wrangling over the lead up to the illegal referendum is a distraction from the main issue now facing us.  

The fundamental point is that a group of people exercising political power decided that they were justified in ignoring a court of law which was delineating the scope of their authority. This is key, because if the executive is free to set the limits on the boundaries of executive power, then the separation of powers becomes a mockery, and no effective safeguards against tyranny remain. This is such a basic constitutional principle, that to flout it was to cross the Rubicon. In the same way Julius Caesar very deliberately brought his troops over the river in defiance of the Roman Senate, Puigdemont and his followers understood that they were breaking with the existing legal order, but were gambling on getting away with it.

It must be highlighted that unlike Caesar, these politicians were not appropriating military force, and although the Supreme Court concluded that there had been undeniable acts of violence in Catalonia in autumn 2017, these were not severe enough to justify a conviction for rebellion. Interestingly, the judges appear to have adopted a fairly restrictive interpretation of the Spanish penal code, which has worked to the defendants’ advantage. The text of Article 472 setting out the crime of rebellion, requires the accused to have risen up “violently and publicly”, but does not actually set any threshold on the level of violence required. This is not to suggest that the justices were incorrect in their ruling, quite the opposite: the offence is geared towards threats to national stability and the Constitution, and it would have been, in our view, excessive to invoke it in other circumstances. Nonetheless, had the Supreme Court been minded to pursue the most punitive approach possible towards the accused, it could have opted for rebellion without in any way straining the words of the text. The fact that they refrained from doing so demonstrates the fallacy of presenting this ruling as the outcome of a witch-hunt.

As previously stated, the crime of which they major-players were convicted is that of sedition, which is set out in Article 544:

Conviction for sedition shall befall those who…publicly and tumultuously rise up to prevent by force or outside the legal channels, application of the law, or any authority or public officer from the lawful exercise of the duties thereof or implementation of the resolutions thereof, or of administrative or judicial resolutions.

Given that the defendants had ignored a court ruling suspending the legislation enabling their referendum, on the grounds that it was being arranged in an unconstitutional manner, and proceeded to organise the vote with public funds with which they were entrusted, it is difficult to see how they could not be convicted of those charges as outlined. Significantly, they deliberately defied a court order, presumably hoping that their position and status would shield them from the consequences. The vote on Catalonia’s independence could not be regarded as a democratic mandate for anything, given that there was no neutral oversight of the ballot, and that it took place in an atmosphere of violence, combined with known illegality, meaning that many citizens were unwilling or unable to participate.

Therefore, the politicians who used that vote as a mandate to place themselves above the law had to face a reckoning. Otherwise, how could the State justify using coercive force against any citizen who claimed a personal moral or political belief necessitated them to sell controlled drugs, or indulge in hate speech? Civilised society cannot function at all if everyone can opt in or out of legal rules, whilst a country which permits only the powerful to do this has lost any commitment to democracy and equality. If politicians were allowed to decide whether and when to obey the law, nobody’s fundamental freedoms would be safe. Spain and its Supreme Court were compelled to defend the Rule of Law and impose substantial prison terms for such abuses. Yet the sentence hardly constitutes a happy ending. There are no winners in this situation, and whilst acknowledging the inevitability of this outcome, many Spaniards feel sorrow and discomfort that it ever came to this. Fairness requires an acknowledgment that it was an honourable decision on the part of these defendants, including Oriol Junqueras, to face prison and trial, especially when Puigdemont chose to abandon them and flee the jurisdiction. Moreover, whilst many are keen to draw a line and move onwards, the fate of the jailed politicians is likely to ferment bitterness and unrest, as is evidenced by some of the protests which have already occurred in Barcelona.  This must be a cause of ongoing concern for Spanish citizens across the political spectrum when reflecting on the path ahead.

Looking across the water, there are some salutary lessons which the United Kingdom and other countries might draw. Although purely advisory in nature, the vote on Brexit was lawful and properly conducted, meaning that it would be a gross distortion to compare it to the purported referendum which took place in Catalonia. Notwithstanding, the decisions in Miller (No 1) and Miller (No 2) /Cherry make it abundantly clear that the Government cannot act without sanction and approval from Parliament. If political players attempt to step outside the bounds of the law, even whilst believing that they have a groundswell of popular support or a vote on their side, they will inevitably be damaging their own future, but much more importantly, the wider public interest.   

Dr Javier García Oliva, Senior Lecturer in Law, The University of Manchester

(Suggested citation: J. García Oliva, ‘Sentencing the Catalan Separatists: The Painful Vindication of Equality Before the Law and Separation of Powers’, U.K. Const. L. Blog (16th Oct. 2019) (available at https://ukconstitutionallaw.org/))

Rotten tomatoes or standing ovations? Commissioners’ hearings reviewed

It’s the theatrical run everyone had been waiting for. Well, everyone in the Brussels bubble. Maybe.

Over the past couple of weeks, aspiring European commissioners have been putting on a series of one-woman and one-man shows at the European Parliament. Their aim: to convince MEPs that they deserve a five-year run on the Brussels stage.

So who won over the audience and the critics in their confirmation hearings? Who was more “meh” than megastar? And who had the punters reaching for the rotten fruit?

POLITICO watched every performance (so normal people didn’t have to) and the reviews are in.

Top performers

Frans Timmermans (Executive Vice President for the European Green Deal, Netherlands) 

High point: Timmermans’ rendition of a snippet of poetry from Edwin James Milliken to liken the Earth’s climate trajectory to that of a man who falls asleep while driving a train — a rather dramatic end to the hearing. “For the pace is hot, and the points are near, and sleep hath deadened the driver’s ear; and signals flash through the night in vain. Death is in charge of the clattering train!”

Timmermans charmed MEPs with his linguistic skills, made some firm policy pledges and kept the drama to a minimum Aris Oikonomou/AFP via Getty Images

Low point: The largely polished Timmermans flubbed in a couple policy areas that did not go unnoticed by MEPs — he erroneously suggested the EU’s Emissions Trading System did not cover aviation and was accused of dodging questions on agriculture.

Key quote: “It’s absolutely clear there’s no future in coal.”

Verdict: Akin to a well-produced documentary. Timmermans charmed MEPs with his linguistic skills, made some firm policy pledges and kept the drama to a minimum.

Rating (out of 5): ⭐⭐⭐⭐ 1/2

Didier Reynders (Justice, Belgium)

High point: Reynders championed the rule of law and consumers. He pleased many MEPs by pledging to push hard for an answer from the Council on a controversial proposal that would allow groups of consumers to sue companies and seek compensation.

Low point: MEPs tried to push Reynders on domestic allegations of corruption but he stuck to his lawyer-approved boilerplate answer and denied all allegations. “This person publicly stated he wanted to stop me from becoming European commissioner,” he said. “I wouldn’t wish on anybody what my family, my spouse, those close to me had to experience.”

Key quote: “We need to ask more and more information on the algorithms” — promising to open the black box of artificial intelligence.

Didier Reynders didn’t get into trouble, dodged domestic allegations successfully and smoothly handled questions| Aris Oikonomou/AFP via Getty Images

Plot twist: The lights went out in the middle of the hearing, forcing everyone to move two floors up. The ushers got a huge round of applause for preparing a new room within 20 minutes.

Verdict: Solid all-round performance. Didn’t get into trouble, dodged domestic allegations successfully and smoothly handled questions ranging from consumer rights to rule of law, and from data protection to AI.

Rating: ⭐⭐⭐⭐ 1/2

Stella Kyriakides (Health, Cyprus)

High point: A breast cancer survivor and former president of a breast cancer patients group, Kyriakides got into the weeds on cancer prevention methods as she called for “all hands on deck” to beat the disease.

Low point: “I’m trying to understand why I haven’t been convincing on pesticides,” Kyriakides said after fielding five questions on the topic.

Though MEPs were, indeed, unconvinced by what she said on pesticides, they soaked up Stella Kyriakides’ expertise on health | Aris Oikonomou/AFP via Getty Images

Key quote: “In no way do I underestimate the effect that pesticides have on health, and it would be unheard of to be health commissioner and not to take this on.”

Verdict: Though MEPs were, indeed, unconvinced by what she said on pesticides, they soaked up Kyriakides’ expertise on health — especially given that her hearing was immediately after Polish nominee Janusz Wojciechowski’s first, bumbling performance.

Rating: ⭐⭐⭐⭐

Phil Hogan (Trade, Ireland)

High point: Hogan won spontaneous applause from across the political spectrum after a hearing in which he ticked all the boxes: He knew the MEPs and the subjects that mattered to them. He had the talking points to address each major political group’s priorities.

Low point: He kept getting his future boss’s name wrong: He talked about a certain “Mrs. van der Leyen.” He also ducked questions on how he planned to enforce environmental and labor rights chapters in trade agreements.

Hogan was well-prepared. It was clear that he was not on the parliamentarians’ hit list | Kenzo Triboullard/AFP via Getty Images

Key quote: “Europe has to stand up for itself.”

Verdict: Hogan was well-prepared. It was clear that he was not on the parliamentarians’ hit list.

Rating: ⭐⭐⭐⭐

Helena Dalli (Equality, Malta)

High point: Dalli quickly shot down an MEP from the far-right ID group, who suggested that allowing people to “choose” their gender would allow people to “cheat” sporting rules. “Gender reassignment is certainly not a walk in the park,” Dalli said to applause.

Low point: Dalli didn’t reply directly to a question about whether she was satisfied with the public inquiry set up last month by the Maltese government to look into the murder of journalist Daphne Caruana Galizia.

Helena Dalli’s strong and personal testimony impressed MEPs| Aris Oikonomou/AFP via Getty Images

Key quote: “The 21st century must be the century of women being equal.”

Verdict: Dalli’s strong and personal testimony impressed MEPs and within hours it was clear she had the necessary majority to be confirmed.

Rating: ⭐⭐⭐⭐

Virginijus Sinkevičius (Environment & Oceans, Lithuania)

High point: “For us 2050 is not just a target on a piece of paper, we have to live it,” the 28-year-old nominee said of the lofty goal of reaching climate neutrality by mid-century.

Low point: May regret overpromising. He pledged a non-toxic environment strategy that “needs to go beyond” what the outgoing Commission proposed and an update of air pollution standards in line with World Health Organization recommendations. Those would need the approval of the entire College of Commissioners — no easy task for a newbie.

Virginijus Sinkevičius was well prepared, often citing facts and figures | Oliver Hoslet/EPA-EFE

Key quote: “This mandate will be the greenest that Europe has ever seen.”

Verdict: Smooth sailing. Sinkevičius was well prepared, often citing facts and figures, and his bold ambitions impressed MEPs. Within hours they gave him the green light.

Rating: ⭐⭐⭐⭐

Elisa Ferreira (Cohesion & Reforms, Portugal)

High point: Ferreira decided to address concerns about potential conflicts of interest head-on. She said she’d abstain from EU funding decisions which could directly or indirectly impact the personal interests of her husband, who works for a regional development body.

Low point: Couldn’t give a clear answer on where the money will come from for a Just Transition Fund, meant to ease the move to green energy for countries heavily dependent on fossil fuels.

Ferreira’s hearing ended with a long round of applause from MEPs from across the political spectrum | Aris Oikonomou/AFP via Getty Images

Key quote: “You will be hearing from us soon, with a Commission proposal in the first 100 days” on that transition fund.

Verdict: Ferreira’s hearing ended with a long round of applause from MEPs from across the political spectrum, showing she enjoys broad support. She may not have had all the answers but they liked her nonetheless.

Rating: ⭐⭐⭐⭐

Maroš Šefčovič (Vice President for Interinstitutional relations & Foresight, Slovakia)

High point: “As an expert on foresight, you already know what I’m going to say … What will I have for dinner?” asked Green MEP Nico Semsrott, a satirist by profession. “It’s true, some of my colleagues have been asking me if I can tell them what will be the next Lotto numbers,” Šefčovič quipped back.

Low point: Šefčovič struggled to defend his boss Ursula von der Leyen’s plan for a “one in, one out” policy to limit the volume of EU legislation — something MEPs said could reduce consumer and environmental protections. “The European Union isn’t a nightclub,” German MEP Tiemo Wölken said.

Maroš Šefčovič made sure to hit the right notes to fuel Parliament’s ambitions | Kenzo Triboullard/AFP via Getty Images

Key quote: Šefčovič pledged a “special partnership” with the European Parliament that includes “a new right of initiative, which I know is very important for you.”

Verdict: A smooth opening act in which Šefčovič made sure to hit the right notes to fuel Parliament’s ambitions.

Rating: ⭐⭐⭐⭐

Paolo Gentiloni (Economy, Italy)

High point: “I shall defend to the hilt the cause of Europe,” the former Italian prime minister said in closing remarks that put an exclamation point on his overall approach: show gravitas and present himself as someone able to put aside nationality.

Low point: Asked about his assets — property including four apartments plus €620,000 of securities — Gentiloni turned slightly defensive, perhaps not in tone but in words. “I wasn’t rich by any means,” he said and offered a joke that didn’t quite land about how Italian media had inflated his holdings into “the portfolio of a millionaire.” But he said he’d sold off his stocks, which had included more than €100,000 in Amazon shares.

Paolo Gentiloni showed a deft hand in signaling to both sides of Europe’s north-south divide |Aris Oikonomou/AFP via Getty Images

Key quote: “I want to be very clear on this, crystal clear, if possible. I’m not and I will not be the representative of a single government in the Commission.”

Verdict: Put the issue of national loyalties to bed from the start, with a mix of high rhetoric about European ideals and some skillful bureaucratic misdirection. Also showed a deft hand in signaling to both sides of Europe’s north-south divide, calling for a shared unemployment program while pledging no “permanent transfer from country to country” of funds.

Rating: ⭐⭐⭐⭐

Nicolas Schmit (Jobs, Luxembourg)

High point: Schmit assured Nordic MEPs that a minimum wage framework he plans to put forward “rapidly” won’t undermine their collective bargaining systems.

Low point: British MEP Matthew Patten accused Schmit of failing to address discrimination in the labor market. The bloc’s motto may as well be, “united in diversity, as long as you’re white,” Patten said.

For Nicolas Schmit this was an easy game | Aris Oikonomou/AFP via Getty Images

Key quote: “No country should be allowed to use social dumping for its own workers. That flies in the face of the European spirit.”

Verdict: For Schmit, a longtime employment minister turned MEP in Parliament’s Committee on Employment and Social Affairs, this was an easy home game.

Rating: ⭐⭐⭐⭐

Jutta Urpilainen (International Partnerships, Finland)

High point: “Eradication of poverty is at the center of our work,” Urpilainen told legislators. That likely came as a relief to many development advocates, who fear development funding will be hijacked for other policy priorities, such as migration.

Low point: There wasn’t really one in what was a low-key hearing.

Jutta Urpilainen flew through her friendly hearing, finishing half an hour ahead of time | Kenzo Triboullard/AFP via Getty Images

Key quote: “I see that we need to invest more in Africa, and we need to have [the] private sector to be part of that approach.”

Verdict: The former Finnish finance minister flew through her friendly hearing, finishing half an hour ahead of time.

Rating: ⭐⭐⭐⭐

Margaritis Schinas (Vice President for Protecting our European Way of Life, Greece)

High point: Schinas deftly deflected concerns about his job title. After three hours of questions, it was even a subject for humor. Juan Fernando López Aguilar, who co-chaired the hearing, joked that “working this late is definitely not in line with the European way of life.”

Low point: For those who tuned in for answers on the EU’s plans to fight disinformation and digital threats, Schinas’ hearing was a disappointment — with no mention of fighting hybrid threats, cybercrime or other security threats.

The hearing of Margaritis Schinas was a smooth operation | Aris Oikonomou/AFP via Getty Images

Key quote: “The job I am entrusted to do is one that has never existed before. It is a new job,” Schinas said. “Although the job is new, the problems are old, and they are deeply rooted.”

Verdict: Smooth operation. All the communication skills of the Commission’s former chief spokesman were deployed to defuse arguments over his job title and win confirmation.

Rating: ⭐⭐⭐⭐

Middle of the road

Johannes Hahn (Budget & Administration, Austria)

High point: Auditioning for his third term as a commissioner, Hahn made the most of his strong relationships with MEPs, noting many in the room already have his mobile number.

Low point: He struggled to answer the question of how the new Commission will finance its ambitious policy pledges, in particular on climate.

MEPs were not always convinced by Johannes Hahn’s replies, but were nonetheless impressed by his years of experience | Kenzo Triboullard/AFP via Getty Images

Key quote: “It would be not serious if I give you a promise about a certain percentage,” Hahn told MEPs when discussing the size of the future EU budget. Not a great soundbite but smart — as that figure will be the subject of bitter debate among member countries.

Verdict: MEPs were not always convinced by Hahn’s replies, but were nonetheless impressed by his years of experience, directness and knowledge of topic area.

Rating: ⭐⭐⭐ 1/2

Josep Borrell (EU high representative for foreign affairs, Spain)

High point: (For Borrell, anyway. Not for Parliament as a watchdog.) Getting a round of applause for stopping to drink some coffee before giving his closing statement.

Low point: Coming under repeated questioning over his financial affairs, including a fine for insider trading. Borrell repeatedly insisted he had not deliberately done anything wrong and suggested the timing of the controversial share sale was an unfortunate accident.

Josep Borrell was always unlikely to face a rough ride | Kenzo Triboullard/AFP via Getty Images

Key quote: “I believe that borders are the scars that history left engraved on the skin of the earth, has etched with blood and fire, and that the progress of humanity consists in overcoming borders.”

Verdict: As a former president of the Parliament, Borrell was always unlikely to face a rough ride. Assured but not dazzling display.

Rating: ⭐⭐⭐

Margrethe Vestager (Executive Vice President for Europe fit for the digital age, Denmark)

High point: When told by Brexit Party MEP John Tennant that he was looking forward to Britain’s departure from the EU so the country could gain greater sovereignty (particularly over its tax dealings) but that she should “carry on,” Vestager quipped: “I don’t share your views, but I appreciate your good wishes.”

Low point: Vestager did not provide convincing replies to MEPs asking about how she would manage her two hats, as executive vice president for digital affairs and also competition chief. There are worries she can’t be Europe industry’s coach and referee at the same time. She kept repeating that “the independence in law enforcement is non-negotiable,” but conceded the issue would require “some care.”

Margarethe Vestager is barely changing portfolio and she already had first-hand experience of what confirmation hearings are all about | Aris Oikinomou/AFP via Getty Images

Key quote: “I will do my best in the second season.” (In a reference to the hit Danish political TV drama “Borgen,” which she reportedly inspired.)

Verdict: Good but not wow. Vestager is barely changing portfolio and she already had first-hand experience of what confirmation hearings are all about. Not a standout performance from the nominee — or her remarkably tame audience.

Rating: ⭐⭐⭐

Věra Jourová (Vice President for Values and Transparency, Czech Republic)

High point:  Striking a balance between the work of the current Commission on rule of law and making clear she’d do things her own way. Managed to pay respect to current rule-of-law supremo while also making clear she wouldn’t just be Timmermans II.

Low point: Jourová struggled with questions about threats to journalists coming from their own national governments inside the EU, admitting that there’s not much the Commission can do to help: “This is a very difficult question, and I will not pretend that the European Union is equipped with strong legislative or executive power in these cases.”

Věra Jourová’s performance, in which she also struggled to keep to time, did not wow those expecting more innovative and substantive ideas  | Stephae Lecocq/EPA-EFE

Key quote: Pledging to make tech platforms more accountable for the content they carry. “The e-commerce directive is still a very strong legislation, which says that platforms are not responsible for the content … And we will have to look at this to see if we need a stronger push to increase the responsibility,” she said. “I am convinced that we need such a push.”

Verdict: The veteran commissioner’s performance, in which she also struggled to keep to time, did not wow those expecting more innovative and substantive ideas on improving transparency, protecting European democracy and enforcing the rule of law.

Rating: ⭐⭐⭐

Valdis Dombrovskis (Executive Vice President for an Economy that Works for People, Latvia)

High point: Dombrovskis delivered a clear pledge to introduce legislation for the virtual currency backed by Facebook — calling out Libra by name, with no hedging about commissioning studies, convening expert panels or plotting roadmaps.

Low point: Right-wing Slovak MEP Miroslav Radačovský devoted part of his question time to name-checking a businessman from his hometown and voicing hope that more people from eastern Slovakia would make it to the Parliament.

Valdis Dombrovskis was successful in his mission of displaying a steady grip on his familiar subjects of finance and economics | Kenzo Triboullard/AFP via Getty Images

Key quote: “We’ll need to regulate Libra to supervise it on EU level both from the point of financial stability and the protection of investors.”

Verdict: The candidate was focused, crisp, detailed — and successful in his mission of displaying a steady grip on his familiar subjects of finance and economics. But his nearly three hours of reciting directives and action plans lacked something: any sense of drama or other entertainment value, at least beyond eastern Slovakia.

Rating: ⭐⭐⭐

Mariya Gabriel (Innovation and Youth, Bulgaria) 

High point: Her smooth, uncontroversial confirmation.

Low point: Dodging a question on how to ensure research investments go to green tech. And the hugs and kisses with MEPs after the hearing, which suggested Parliament had hardly acted as much of a watchdog.

Love was definitely in the air as Mariya Gabriel, a former MEP, returned to the European Parliament | Kenzo Triboullard/AFP via Getty Images

Key quote: “I’m clearly on the side of the European Parliament … I support increasing the budget for Horizon Europe [research funding]. it’s not an item of spending but investment.”

Verdict: Political equivalent of a three-star romcom. Love was definitely in the air as Gabriel, a former MEP, returned to the European Parliament.

Rating: ⭐⭐⭐

Janez Lenarčič (Crisis management, Slovenia)

High point: Lenarčič claimed to have the answer to the famous question attributed to Henry Kissinger: “Who do I call if I want to speak to Europe?” To applause and laughter at the end of his hearing, he held up a piece of paper with the number of the EU’s emergency response center.

Low point: Didn’t really face one in a low-key hearing. Lowest point for observers was when one MEP delved deep into the EU jargon bag and came out with the “external action cluster.”

Solid, unspectacular performance by a career diplomat, Janez Lenarčič ,who’d clearly done his homework | Oliver Hoslet/AFP via Getty Images

Key quote: “It is a noble mission, it is a way to show the best face of Europe around the world,” Lenarčič said of his new post. “Solidarity is something that people don’t think about until the moment they need it. And then they remember it. Forever.”

Verdict: Solid, unspectacular performance by a career diplomat who’d clearly done his homework. Hardly the toughest of grillings — it’s hard to be against humanitarian aid.

Rating: ⭐⭐⭐

Ylva Johansson (Home Affairs, Sweden) 

High point: No standout moment but the former minister was able to reassure some who feared she was too leftwing.

Low point: Her reluctance to share details on how she wants to reform EU asylum policy. That earned her the nickname of the “comeback commissioner” from Portuguese MEP Paulo Rangel, as she kept promising to come back with answers later. Her vagueness meant she was required to answer additional written questions.

Perhaps it’s understandable that Ylva Johansson didn’t want to share details on her ideas for reforming EU asylum policy | Kenzo Triboullard/AFP via Getty Images

Key quote: “I have been tackling and cracking tough nuts before in my political career.”

Verdict: Perhaps it’s understandable that she didn’t want to share details on her ideas for reforming EU asylum policy, given the sensitivity of the subject. But this leaves an open question: Does she actually have a plan?

Rating: ⭐⭐⭐

Strugglers

Kadri Simson (Energy, Estonia)

High point: A tweet by Estonian Prime Minister Jüri Ratas during her hearing, saying her home country is now on board with an EU-wide climate neutrality goal of 2050. That helped burnish Simson’s climate credentials, which were under fire from Green MEPs attacking Estonia’s reliance on shale oil.

Low point: Simson’s nervousness and hesitation made her unable to give MEPs clear answers on a number of questions.

For environmental NGOs, Kadri Simson’s performance was “alarmingly weak” | Aris Oikinomou/AFP via Getty Images

Key quote: “I can closely cooperate with member states, and motivate them to raise their targets.”

Verdict: Underwhelming. For environmental NGOs, Simson’s performance was “alarmingly weak.” She made it through confirmation but will still need to prove she’s up to the job.

Rating: ⭐⭐ 1/2

Dubravka Šuica (Vice president for democracy and demography, Croatia)

High point: She showed she knew her audience by wishing French MEP Pascal Durand a happy birthday after he asked her a question. That prompted a smattering of applause.

Low point: Rambling closing remarks in which she admitted to MEPs that she hadn’t really focused much on the topics in her new portfolio until she was nominated a few weeks ago.

Dubravka Šuica had a shaky showing, but enough to win confirmation to a post that’s unlikely to be key in the new Commission | Oliver Hoslet/EPA-EFE

Key quote: “I think that someone’s private beliefs are not relevant to their job.” (When questioned about her views on abortion.)

Verdict: Shaky showing, but enough to win confirmation to a post that’s unlikely to be key in the new Commission. Durand described her as “just sufficient but hardly inspiring” — and that was after she’d wished him a happy birthday.

Rating: ⭐⭐

Janusz Wojciechowski (Agriculture, Poland)

High point: In his second hearing, he won a warm round of applause for choosing to speak in Polish, after struggling in English in the first session.

Low point: After the agonizing first hearing, when lawmakers were invited to applaud, they remained silent.

Janusz  Wojciechowski came across as vague and overly keen to give answers that pleased everyone | Kenzo Triboullard/AFP via Getty Images

Key quote: “I was raised on a farm!”

Verdict: Wojciechowski came across as vague and overly keen to give answers that pleased everyone, but the lawmakers knew that he had experience in agriculture and feared that Poland could send a worse candidate if he were rejected.

Rating: ⭐⭐

Sylvie Goulard (Internal market, France)

High point: Solid on policy but that didn’t count for much, in two hearings.

Low points: Too many to give all of them a mention. Faced repeated questions about an investigation into possible misuse of EU funds for payments to a Parliament assistant, and about her highly paid side gig with a U.S think tank. “How many French people earn €13,000 for making phone calls?” asked Virginie Joron, from the French far-right National Rally. Lowest point of all was her rejection by Parliament’s internal market and industry committees on Thursday.

Key quote: “I am clean.” (from her first hearing)

Many MEPs, especially those from the European People’s Party, seemed to have decided from the start that Sylvie Goulard was going down | Kenzo Triboullard/AFP via Getty Images

Verdict: Emmanuel Macron’s pick was unconvincing, but she may also have been doomed before she entered the room. Many MEPs, especially those from the European People’s Party, seemed to have decided from the start that she was going down.

Rating: ⭐

POLITICO’s Statlers and Waldorfs: Jacopo Barigazzi, Lili Bayer, Hannah Brenton, Hanne Cokelaere, Cristina Gonzalez, Laura Greenhalgh, Andrew Gray, Anca Gurzu, Jakob Hanke, Melissa Heikkilä, Laura Kayali, Thibault Larger, Christian Oliver, John Rega, Eline Schaart, Bjarke Smith-Meyer, Marion Solletty, Paola Tamma, Sarah Wheaton.

Daniel Halberstam: EU Brexit Litigation: A Short Guide to the Perplexed

Given Boris Johnson’s explicit vow that he’d rather “be dead in a ditch” than ask Brussels for an extension, and his consiglieri’s statement that the government would “scupper” any extension by refusing to negotiate because the “duty of sincere cooperation will be down the toilet,” one might be forgiven for thinking that the Government’s strategy—despite the occasionally hopeful press release—is to run out the clock on the October 31 deadline or the next one, in the hope that, no matter how, they will have succeeded in taking the U.K. out of the EU.

It may, therefore, be useful to remind No. 10 of the practical legal consequences of some of their actions. To be sure, the law is only a backdrop when the aim is revolution. But if the aim is to work within the law, there are a series of constraints the current government may wish to consider.

Jeff King has taken great care to explain some of the domestic limitations under which the Government currently labours (see here and here). I shall take up the thread here by turning to how EU law ties into the U.K.’s constitutional obligations.

Preliminaries

Begin with basics. Article 50 TEU allows a Member State to withdraw “in accordance with its own constitutional requirements.” As the European Court of Justice held in Wightman, Article 50 demands that the withdrawal process be “orderly” and “democratic.” The decision to withdraw, the Court also held, was not finalized by the original notification, but an ongoing intention subject to revision and reconsideration through that state’s “democratic process in accordance with its constitutional requirements.”

Although the Wightman court only addressed a possibly changed intention, I suggest the same must hold true for an unchanged intention, i.e. that the refusal to change one’s intention to withdraw cannot be tainted by manifestly undemocratic and unconstitutional conduct. How else could we be certain that the intention we must respect was still there?

We can, then, in my view, infer from Wightman that not just the initial decision to trigger Article 50, but the Member State’s entire withdrawal process must be democratic and heed that state’s constitutional requirements.

And, here, we’re already in for the first catch among many: for as long as the European Communities Act of 1972 (“ECA 1972”) – which is a constitutional statute – is in force, the U.K.’s constitutional duties include heeding foundational EU law duties, including the duty of sincere cooperation. See Miller v SS for Exiting the EU [2017] UKSC 5.

Lest you think of paper tigers, let me count some ways to enforce this.

Member State Courts

Domestic courts may enforce these obligations, of course, as did the Scottish Court of Session earlier this week when it took the remarkable measure of invoking nobile officium to retain jurisdiction and monitor the Government’s implementation of the European Union (Withdrawal) (No.2) Act 2019 (“Benn Act”), which demands that the Government seek an extension if no agreement is reached by October 19.

Domestic courts can and should similarly enforce other constitutional requirements, e.g., ensuring that the Government has not disregarded Parliament’s requirement in the European Union (Withdrawal Act) 2018 (a constitutional statute, I would argue, in light of Miller I) to give “due regard” to the Belfast Agreement and the Northern Ireland Act (another constitutional statute) by triggering the repeal of the ECA 1972 in the absence of any withdrawal agreement.

And, not least because following EU law is also a U.K. constitutional requirement for as long as the ECA 1972 is in force, domestic courts can and should also enforce the Government’s duty of sincere cooperation – say, if the Government were to return to its position of categorical refusal to negotiate in the hope of running out whatever the next exit clock may be.

CJEU

The Court of Justice could become involved in a host of ways. Let me mention just a few of the more salient ones.

First, Member State courts hearing claims concerning an unconstitutional exit, could (and under Article 267 TFEU, under certain circumstances, must) send a reference to the ECJ on the consequences under EU law from such action.

Second, the Commission could sue the U.K. before the CJEU directly under Article 258 for failure to fulfill its Treaty obligations.

Whichever way these claims come to Luxembourg, the CJEU could, if necessary, as others already pointed out [e.g. Pavlos Eleftheriadis], immediately toll any upcoming Brexit deadline by interim measure under Article 279 TFEU until the matter was properly heard. Moreover, in its final judgment, the CJEU could pronounce the withdrawal period tolled until any manifest domestic constitutional violation was cured. Indeed, the CJEU may even hold that the unconstitutional action at some point has undermined exit to such an extent as to require the U.K. to start its withdrawal process all over again!

Whichever way these claims come to Luxembourg, the CJEU could, if necessary, as others already pointed out [e.g. Pavlos Eleftheriadis[ALY1] ], immediately toll any upcoming Brexit deadline by interim measure under Article 279 TFEU until the matter was properly heard. Moreover, in its final judgment, the CJEU could pronounce the withdrawal period tolled until any manifest domestic constitutional violation was cured. Indeed, the CJEU may even hold that the unconstitutional action at some point has undermined exit to such an extent as to require the U.K. to start its withdrawal process all over again!

And that’s just playing nice. For those who think the U.K. is out after this or the next Brexit deadline passes no matter what EU law says, there could be even greater surprises down the line.

One would be a lawsuit by the Commission, again under Article 258 TFEU, or another Member State under Article 259 TFEU, against the purportedly “former” Member State that wasn’t. One way or another, the CJEU could hold the U.K. had not, according to EU law, left the EU, and order the U.K. to comply with the Treaty or face fines. Fanciful, to be sure, in terms of actually keeping the U.K. in the Union. But those fines would be added to the U.K.’s divorce bill, raising the baseline for negotiations of what the U.K. would have to pay to really get out.

Lastly, there’s the nuclear option. Either by suit against the EU Council under Article 263 TFEU or by simple referral (say from a Member State or the European Parliament) under Article 218(11) TFEU, the CJEU could examine the Council’s decision to begin negotiations for an association agreement with the purportedly “former” Member State, i.e. the state that thinks it left. The CJEU could hold that, for these purposes as well, there had been no legal exit from the Union due to failure to heed the Member State’s constitutional requirements. Regardless of whether any U.K. official at that point thinks the duty of cooperation was “down the toilet,” under EU law such a ruling would bar all EU institutions from negotiating an association agreement with the U.K. After all, association agreements cannot be made between the EU and a current Member State.

This last option, i.e., declaring the U.K. never left and hence cannot become partner to an association agreement, would not need to come before the Brexit deadline. Indeed, there’s no rush at all. It could be initiated just before, or sometime after, the Council opened negotiations on a future association agreement with the Member State that thinks it left but never did.

A final Twist – or “Catch-22”

If the CJEU were to hold that an association agreement with the U.K. were impossible because of a disorderly, undemocratic, and unconstitutional withdrawal process, only a Treaty amendment pursuant to Article 48 TEU could legally lift that bar. Under Article 48, however, such an amendment would require unanimity in the Council, the European Parliament’s consent, and ratification in all the Member States. And this, in turn, could require ratification by the U.K. as Member State of the EU— even if the U.K.’s voting rights in the EU Council had been suspended under Article 7 TEU for a persistent breach of the rule of law.


Daniel Halberstam, Eric Stein Collegiate Professor of Law, Associate Dean for Faculty & Research, and Director of European Legal Studies at the University of Michigan Law School

(Suggested citation: D. Halberstam, ‘EU Brexit Litigation: A Short Guide to the Perplexed’, U.K. Const. L. Blog (11th Oct. 2019) (available at https://ukconstitutionallaw.org/))

Powered by WordPress | Designed by: index backlink | Thanks to insanity workout, car insurance and cyber security