Case C-181/19, Jobcenter Krefeld: The End of the Union Citizenship as Previously Understood?

The European Court of Justice has taken a restrictive approach vis-à-vis economically inactive Union citizens ever since its rulings Brey and Dano. In a recent preliminary ruling, Case C-181/19 Jobcenter Krefeld, the Court confirms this approach with regard to social security benefits that resemble social assistance. Such benefits fall, just as the Court in held in Brey and Dano, under the Citizenship Directive and can be made dependent upon a right to reside. Thereby, the Court holds that the Citizenship Directive overrule Regulation 883/2004, that coordinates social security benefits, and its equal treatment principle which rule out additional residence requirements. However, the Court clarifies that if there is a right to reside on basis of Regulation 492/2011, such a right overrides the more restrictive right to reside that follows from the Citizenship Directive. Different standards seem to apply to economically active Union citizens and economically inactive Union citizens. Challenges lie ahead for the Member States' administrations as different authorities apply the respective Union law instruments.

So Long Solange? The PSPP Judgment of the German Constitutional Court and the Conflict between the German and the European ‘Popular Spirit’

The judgment by the German Constitutional Court (‘BVerfG’) of 5 May 2020 has caused a stir all over Europe. The relationship between the BVerfG and the European Court of Justice (‘ECJ’) has never been an easy one, especially after the Solange judgment of 1974. The Solange jurisprudence has, however, not only been synonymous with conflict and rivalry but also for dialogue and, eventually, mutual respect. With the PSPP judgment, this dialogue seemed to have found an end, while by the order of 29 April 2021 the BVerfG appears to have returned to a more conciliatory tone. Nonetheless, the disruption between Karlsruhe and Luxembourg persists. In this article, the PSPP judgment will be examined in detail, presenting it as the last step of long, contorted jurisprudence. It will be shown that the rupture that occurred in May 2020 was technically unnecessary and rather the result of deep-rooted cultural conflict with a clear economic background. The legal reasoning on both sides—that of the BVerfG and that of the PSPP judgment's most outspoken critics—is problematic at best. While for the time being the BVerfG seems to have learnt the lesson from the conflict provoked by its own judgment, the underlying, substantive conflict is still unresolved. It will be shown that this conflict can only be solved on a political level. Thereby, cultural pre-concepts will have to be overcome. Uncompromising reliance on a national ‘popular spirit’ (Volksgeist) will not offer a way out but neither will, for the time being, exclusive reference to a European Volksgeist ignoring Member State realities. The ‘weighing and balancing’ the BVerfG has missed in the previous Weiss ECJ preliminary ruling (again on the PSPP programme) will have to take place on a far broader scale.

Czech Litigation on Systematic Detention of Asylum Seekers: Ripple Effects across Europe

This article investigates the development of national litigation against the Czech Republic’s governmental policy to detain asylum seekers under the Dublin III Regulation, as a means to address the so-called refugee crisis. The outcome of this litigation has been the preliminary ruling of the Court of Justice of the European Union in the Al Chodor case, which has been praised for enhancing domestic standards of protection of asylum seekers and returnees’ right to liberty across the EU. The article demonstrates that this preliminary ruling has been a catalyst for domestic legislative and jurisprudential reforms across the EU, improving to a certain extent the protection of the right to liberty of asylum seekers. However, it is argued that in the Czech Republic the case has not initiated a change in the legislation, nor has it reduced the systematic use of asylum detention. The article identifies some important legal, political and social factors from within and beyond courtrooms that have contributed to this ambiguous outcome of the Czech litigation. It concludes by identifying circumstances that need to be taken into account when using the preliminary reference procedure as a tool for strategic litigation.

Judicialization of Economic and Monetary Union: between a rock and a soft place?

The European Central Bank has been active since the sovereign debt crisis that struck European Union Member States by putting in place several asset-purchasing programmes such as Outright Monetary Transactions and Public Sector Purchase Programme. As much as these decisions have proven the pivotal importance of this institution within the monetary union, they have also spurred controversy on potentially having exceeded the competences attributed to the Union. The german federal constitutional court heard challenges to both and requested the Court of Justice to decide on their validity within the framework of a preliminary ruling. The decision of the former court to declare the Public Sector Purchase Programme ultra vires —in this way countering the preliminary ruling decision— as well as its argumentation could produce many institutional consequences to both the European Central Bank and Court of Justice of the European Union. Finally, it has shown the limits of European Union integration and will inevitably propel discussions on which way to go in the future: it is time for this discussion to come out from courtrooms into the public sphere. Received: 11 November 2020Accepted: 26 May 2021

Judicial Reform and the European Court: Not a Numbers Game

Judicial Reform and the European Court: Not a Numbers Game examines the reforms, and major proposals for reform, of the European Union court. The most successful reforms have been initiated by the Court of Justice itself, concerned about its burgeoning workload, and have comprised either increasing the number of judges, or establishing a new judicial body competent at first instance for direct actions. The latter approach led first to the setting up of the General Court, and subsequently a specialized court. The Court has now changed tack, and the number of General Court judges has been doubled. To address the rising volume of preliminary ruling requests, an ‘EU Appeals’ procedure is proposed, allowing the Court of Justice largely to control its own workload. It would be a radical change, designed to break the mould before the mould breaks the system.

Combating the constitutional crisis in Poland – Can the European Union provide an effective remedy?

Recent constitutional reforms in Poland have demonstrated a lack of respect for the rule of law and for the fundamental values which form the foundations of the EU legal order. The Polish authorities have substantially deviated from principles that the country has accepted as a part of the Copenhagen criteria. The aim of the article is to analyse the mechanisms and procedures applied by the EU institutions to address the systemic threats to the rule of law in Poland. The main focus of the assessment is on the effectiveness of the measure and its potential for a proper solution to the problem. The response provided by the EU demonstrate that there has been a shift from a political to judicial enforcement of values. The article argues that the remedies that were deemed to be the least suitable to address the systemic deficiencies in the rule of law – an infringement action and a preliminary ruling procedure – proved to be the most effective remedy to defend independence of the Polish judiciary. Unexpectedly, the most efficient institution to ensure the respect for values enshrined in Article 2 TEU in Poland proved to be the CJEU, providing extensive interpretation of Article 19 (1) TEU and Article 47 of the Charter. Nevertheless the values are still much more difficult to enforce than the law. While the most serious infringements have been reversed, this has not prevented the Polish authorities from further violating the rule of law.

6. Remedies in EU Law: Direct Effects, Indirect Effects, State Liability, and Art 267 TFEU

This chapter brings together a number of related issues that are indirectly linked to the preliminary ruling procedure under Art 267 of the Treaty on the Functioning of the EU (TFEU)—the vehicle by which the leading principles and remedies in EU law were developed by the Court of Justice; in particular, the means by which EU law could be enforced by individuals via the national courts, rather than by the Commission, or other institutions, or member states in direct actions before the CJEU. The discussions cover Art 267 TFEU; direct applicability and direct effects; state liability; and national procedural law and the system of remedies.

The Google Ireland Case and the Legal Battle over Digital Taxes in the European Union

The preliminary ruling of the Court of Justice of the European Union in the Google Ireland case turned on the compatibility with the rules on free movement of some of the administrative arrangements put in place by Hungary in order to administer its controversial advertisement tax (namely, the obligation to register and the penalties attached to the failure to comply with that obligation). The preliminary ruling offers some interesting insights on the way in which the Court assesses the compatibility with the freedom to provide services of national administrative arrangements aimed at ensuring the effective collection of taxes. This is a topical issue in the context of the recent efforts made by Member States to tax the digital economy more effectively.

Is a Municipal Sales Tax Compatible with VAT?

This paper analyses the Judgement of the Court of Justice of the European Union (CJEU) of 7 August 2018, case C-475/17, on the request for a preliminary ruling made by the Estonia Supreme Court on the compatibility between the municipal sales tax, which said country’s legislation allows municipalities to establish, and value added tax (VAT), which is Community-wide in scope. Pursuant to its interpretation of the VAT Directive, the CJEU concluded that this municipal tax is compatible with VAT and therefore endorses its levying. Based on an analysis of said Judgement, this paper assesses its potential transference into domestic Spanish legislation, be this within the current legal framework or as a possible new tax type within a future reform of the local finance system.

Legal Considerations on the cjeu Judgement of 9 July 2020, C-272/19

In a preliminary ruling procedure initiated by the Administrative Court of Wiesbaden (Germany), the cjeu ruled that the processing of personal data carried out by the Petitions Committee of the Parliament of Land Hessen is subject to the gdpr in so far as the Committee determines, alone or with others, the purposes and means of the processing, and thus it must be categorised as a ‘controller’, within the meaning of the gdpr. This article takes a critical look at the legal arguments of the cjeu.