Xenakis the fisherman and the tangle of EU law

Dead Southern bluefin tuna (Thunnus maccoyii) caught in a tuna pen, Port Lincoln, South Australia.

Understanding Standing: Post 1 of 3

Recently, we posted on a proposed action against the European Commission, or, more precisely, the action of its president. The applicants’ greatest challenge in those proceedings will be to persuade the European Court of Justice in Luxembourg that they should be allowed to take their case at all; in other words, whether they have “standing” under the rules of the European Treaties. We are grateful therefore for an in depth analysis of the subject by regular UKHRB contributor Michael Rhimes.

Michael is currently fourth référendaire at the Court of Justice of the European Union (CJEU), and this and the following two posts on the subject are summaries of what he has set out in an article in the European Journal of Legal Studies  The views he expresses are personal only, and the article was written before he took up his current responsibilities at the CJEU.  

Introduction   

Standing is a hot topic in EU law, and it is certainly of considerable academic interest. The legal commentary in this area over the last 50 years would occupy a small mansion. I confess I am guilty of adding to this proliferation – my own 70 page contribution in the European Journal of Legal Studies may be found here. Yet it is also an area of great practical interest. This is because it is essential to have standing to directly challenge an EU act in the EU Courts. No standing means no admissibility, which means no case to be heard by the Courts.

The overall question to these three Posts is whether the EU provides effective judicial protection in relation to the challenging of EU norms. Each of the three Posts has a deliberately different scope and purpose.

  1. The first is introductory. It summarises what standing is, introduces the main features of direct/indirect enforcement and explains how they are relevant to EU standing. It then offers an overview of the application of the heads of standing in Art 263(4) TFEU.
  2. The second is technical. It examines the case-law under Art 263(4) TFEU offers a more detailed insight into the problems with the application of the three elements in the third head of standing.
  3. The third is polemic. It seeks to explore how the application of effective judicial protection results in gaps in the ability to challenge EU law.

Continue reading

Does a judge have to consider Article 8 in possession proceedings brought by a private landlord? – Millie Polimac

Image result for front doors terrace guardian

Photo credit: the Guardian

No, said the Supreme Court in McDonald v McDonald [2016] UKSC 28 – read judgment.

Facts

Fiona McDonald was a private sector tenant.  The landlords were her parents who had purchased the property by obtaining a secured loan from a private company.  They fell into arrears of the monthly payments, and the company sought possession pursuant to a s.21(4) Housing Act 1988 (‘HA 1988’) notice. The arrears were not substantial, but they had persisted for some time.

An Article 8 defence was raised as Fiona had mental health problems in the form of psychiatric and behavioural issues.

The Supreme Court rejected her defence for the following reasons.

No Article 8 assessment

The appellant argued that the court, as a public authority under s.6(1) of the Human Rights Act 1998 (‘HRA 1998’), was required to carry out an Article 8 assessment in such circumstances. Continue reading

Successful compensation appeal by rape victim

By Pritesh Rathod

RT v (1) The First-Tier Tribunal (Social Entitlement Chamber) and (2) Criminal Injuries Compensation Authority [2016] UKUT 0306 (AAC) – read judgment.

The Upper Tribunal has ruled that, in deciding whether or not an applicant has cooperated with the prosecution of her assailant where she made and later retracted an allegation of rape, it was necessary to see why that retraction was made and whether it was done truly voluntarily, rather than simply assessing whether she was responsible for the retraction.

Background facts

The Applicant (“RT”) was married to H and had four children with him between 2001 and 2008.  From 2004, she was subject to physical and mental abuse by H, culminating in three incidents of rape.  What followed was a somewhat protracted and complicated course of events relating to H’s prosecution.

Initially, H was arrested and charged with six counts of rape.  He was bailed subject to certain conditions.  While H was in custody, RT wrote to him saying that she missed him and wanted him back home.  Over Christmas 2009, H returned home and he and RT had “something of a reconciliation”, including having consensual sexual intercourse.

By January 2010, RT sought to withdraw the complaint (she had commenced divorce proceedings against him).  In February 2010, RT telephoned the police to ask what would happen if she had lied about the rapes.  Later that month, she retracted her allegations, saying that all of them were untrue.  H appeared at the Crown Court and was acquitted after the prosecution offered no evidence. Continue reading

Pressing the Red Button on Rights – Joelle Grogan

Article 50 of the Treaty on European Union (TEU) is the red button for the nuclear option of withdrawal from the EU, and in its design, it was never really, truly envisioned to be pressed. Without testing, and without precedent, we are left with no idea of the potential fallout of pressing that red button. Compared to the quasi-constitutionism of Article 2 TEU evoking the values ‘common to the Member States’ of ‘pluralism, non-discrimination, tolerance, justice, solidarity and equality between men and women’; or the brutal legalism of Title VII of the Treaty of the Functioning of the European Union (TFEU) on competition, tax and the approximation of laws; Article 50 TEU is anaemic. It is, essentially, a button triggering a countdown clock, which is on a comparable level of advancement to the 1980s floppy disk.

The two-year countdown

Triggering Article 50 TEU will begin a two-year countdown to the end of UK Membership of the Union. Within that two-year period an agreement determining the withdrawal arrangements and the future relationship with the Union must be made. Barring a unanimous decision to extend the period, at the end of two years from the point of notification, the UK will no longer be a Member. The Treaties, and all rights and duties therein, cease to apply.

But now, as the British political establishment play a game of “pass the red button”, we are faced with some confounding, and concerning questions from a rights’ perspective. Likely to be lost in the two-year scramble for a political and trade agreement between the UK and EU, which will attempt at all costs to avoid the fall-back position of the application of WTO trade rules, are the very rights and values held as common between the (ex-)Member State(s). During that two-year period, EU law and (pertinently) EU rights will continue to apply in the UK. Free movement will still be (from a legal perspective) free, and claimants may still rely on their EU rights in the Courts. But then what? What happens when the clock strikes zero? Continue reading

Book Review – Marshall Hall: A Law Unto Himself by Sally Smith

Marshall-Hall-biog

Owain Thomas QC reviews this new book by 1 Crown Office Row’s own Sally Smith QC.

Sally Smith’s wonderful new biography of the great Edwardian advocate Edward Marshall Hall is the first reappraisal of his life and career since the celebrated biography by Marjoribanks, published only two years after his death. Since then the worlds of law, journalism, celebrity, and crime have become intertwined in so many complex ways, but Smith charts in this book the quite remarkable public life of the era’s most sought after barrister. He attained celebrity beyond the dreams of even the most fervent publicity hungry barrister. His cases were regularly front page news. Because of the deliciously lurid subject matter some might have got there anyway, but his name added a lustre and whetted the public appetite for the scandal to come with the promise of a coup de théâtre. Thousands waited for the verdicts outside the Old Bailey. Continue reading

Where does the European Court of Justice go now?

BrexitWe’re quiet at the UKHRB, but working on it. In the meantime, here is a level headed prognostication of where the EU arbiter – no longer head arbiter for us, but for the time being – will need to go.

Thank you Eutopia law for permission to repost this instructive article by Professor Peter Lindseth.

“What if…?” These kinds of questions may now seem pointless in the aftermath of the victory of Leave in the EU Referendum. Instead we hear ‘What’s done is done’, ‘Leave means Leave’, ‘out is out’, etc., etc., etc.

But one question has always nagged at me ever since David Cameron brought his renegotiation deal back to the UK in February: What if it included a serious commitment to alter the role and doctrines of the European Court of Justice? Would that have tipped the balance toward the Remain side? Would we have been talking instead about a 52-48 victory for Remain? Would serious ECJ reform, both institutionally and doctrinally, have been enough to peel off the likes of Boris Johnson from the Leave camp, harnessing his energies for Remain and reform?

We will never know. But the question is still of interest, if for no other reason than the remaining Member States must now seriously consider a range of EU reforms in order to prevent further contagion of the Brexit virus. As former German Constitutional Court Judge Gertrude Lübbe-Wolff said in an interview on Verfassungsblog,

the shock over what has happened, and the fear of further disintegration, might produce an awakening effect. So I try to remain optimistic.

This post is in that spirit. Continue reading

Families separated for immigration purposes

I MISS MY MUMLast year 32,446 people subject to immigration control in the UK were detained by the government. Some had entered the country irregularly and were quickly removed. Others were detained pending removal or deportation. More than half of them were released back into the community, meaning that their detention had served no purpose.

But what many people don’t know is that many of those detained were ordinary people, many of whom had lived in the UK for decades and, until they were detained had been quietly going about their everyday lives with their partners and children.   Some have never known any other home, and have husbands and wives, sons and daughters, jobs, homes, lives right here in Britain. Decisions to detain pay no heed to the impact of such a decision on the wider family. Parents are removed without warning from the heart of the family. Continue reading