EU Law Blog

Blogging break

We'll be taking a break from blogging for a couple of weeks.

Bloggers need rest too. Enjoy the break too and read something fun !

Welsh, Gaelic Languages and the United Kingdom Administrative Arrangement with the Council

Remember that Council "conclusion" of June 13th 2005 on "the official use of additional languages within the Council and possibly other Institutions and bodies of the European Union" ? We mentioned it in this post back in September 2005.

We noted also back in February 2006 that Spain had concluded an administrative arrangement about the use of languages other than castilian recognized by the Spanish Constitution.

Now, the United Kingdom has concluded a materially identical administrative arrangement with the Council about the use of languages other than English recognized by United Kingdom law.

In practice, that means the use of the Welsh language which gets its status from the Welsh Language Act 1993 and the Government of Wales Act 1998. It also means the use of Gaelic which derives its official status from the Gaelic Language (Scotland) Act 2005. (On languages in the United Kingdom generally, see here).

Like the Spanish arrangement, the one with the United Kingdom provides that a person any may write to the Council - but indirectly - in any one of the languages recognised by law in the United Kingdom and receive a response in it. That person cannot write to the Council direct but must send the letter to a body designated by the United Kingdom government which body then translates it into English and sends it on to the Council. The Council responds in English, sends the response to the designated body which then translates it into one of the language of the addressee and sends it on. There are provisions in the arrangement also for oral debates in the Council to be in one of the languages recognized by United Kingdom law and for measures adopted by co-decision to be translate into them. The cost of all this is borne by the British government, not by the Council.

Rome I Regulation: British Opt-In

Here's a piece of good news, as our friends over at the Conflict of Laws blog have already noted. The British government has decided to opt-in to the Rome I regulation, Regulation 593/2008.

You can find the letter of notification here.

Extension of European Ombudsman's powers

The European Parliament has adopted Decision 2008/587/EC extending the powers of the European Ombudsman. Decision 2008/587/EC thus amends Decision 94/262, which sets out the conditions governing the performance of his duties.

One of the major changes that Decision 2008/587 makes is to remove the possibility that European institutions and bodies had to refuse to disclose documents to the Ombudsman on grounds of secrecy. The institutions must even disclose secret documents sent to them by the member States (provided that the latter consent). That, of course, has ominous implications given the sort of information that now transits the institutions in the field of police and security coöperation. It would seem that secret or confidential documents received from non member States are completely unprotected from his gaze and his right to make public. That is even more ominous.

Let's hope the next appointee to the position is vetted carefully.

Another interesting extension of the Ombudsman powers concerns his newly granted right to coöperate with bodies entrusted with the protection of fundamental rights.

New Judge for the Court of First Instance

The Irish government has nominated Judge Kevin O'Higgins of the Irish High Court to replace Judge Cooke at the Court of First Instance.

You can see the official letter and his resume here.

If his appointment is confirmed, it will be another father-son act because his father was a judge at the Court of Justice back in the late 80s and early 90s.

We'll keep you posted on the outcome of the appointment process.

UPDATE: An alert reader, Madeleine, points out that the new judge is not in fact the son of a former judge at the Court of Justice. We apologize for the mistake and thanks for the correction.

Amendments to the Rules of Procedure of the Court of First Instance

The Court of First Instance has adopted a new series of amendments to its Rules of Procedure.

Those amendments basically do two things:

- First, they provide for better involvement of the European Parliament in proceedings in which the validity of an act adopted by co-decision is at stake, and

- Second, they provide that the Court of First Instance may dispense with an oral hearing in intellectual property cases.

The amendments come into force on September 1st, 2008.

Urgent Preliminary Ruling, The First Judgment and Speed: Case C-195/08 PPU Rinau

As pointed out by our friends over at the Conflict of Laws Blog, the Court of Justice has handed down its first judgment using the urgent preliminary reference procedure in Case C-195/08 PPU <i>Inga Rinau</i>.

The judgment is still not available in English although there is quite an informative press release here. For other language versions of the judgment, look here.

The case concerned the interpretation of Council Regulation 2201/2003 (‘the Brussels IIa Regulation’) of November 27 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility.

We'll leave the substantive comments to the folks at Conflict of Laws Blog. We just want to draw attention to speed with which the Court dealt with the case. The Supreme Court of Lithuania seised the Court of Justice of a preliminary reference in May 14th 2008 and requested that the urgent preliminary reference procedure be applied on May 21st 2008, the request reaching the Court of Justice the following day. The Court of Justice agreed to apply the urgent procedure on May 23rd 2008 - one day after it received the request. The parties, six governments of member States and the Commission made written or oral submissions on June 26th and 27th 2008. And finally, judgment on July 11th 2008.

That's less than two months for a rather complicated case, translated into so many languages too. It is gratifying to see that the urgent preliminary reference procedure really works.

Access to Documents, Legal Advice, Legislation and Pluralism: Joined Case C-39/05 P and C-52/05 P

The Court of Justice in Joined Case C-39/05 P and C-52/05 P Sweden and Turco v Council overruled a judgment of the Court of First Instance refusing to give public access to a document of the Council's Legal service containing legal advice.

It seems that the Court of Justice has been reading up on Sir Isaiah Berlin and pluralism.

What happened was that Mr Turco asked the Council for access to the documents appearing on the agenda of the ‘Justice and Home Affairs’ Council meeting, including an opinion of the Council’s legal service on a proposal for a directive laying down minimumstandards for the reception of applicants for asylum in Member States. The Council refused to disclose the legal opinion on the ground that it deserved special protection so as not to create uncertainty regarding the legality of the measure adopted further to that opinion.

Mr Turco then challenged the Council's refusal before the Court of First Instance. That court upheld the Council decision in its judgment in Case T-84/03 Turco v Council. The Court of First Instance held that disclosure of legal opinions such as the one requested could give rise to lingering doubts as to the lawfulness of legislative acts to which such advice related and could also compromise the independence of the opinions of the Council’s legal service. The Court of First Instance held that the overriding public interest in disclosure must be distinct from the principles underlying Regulation No 1049/2001, in particular the principle of openness, relied on by Mr Turco.

Finally, Mr Turco and Sweden both appealed that judgment to the Court of Justice.

The Court of Justice held that the reasons advanced by the Council and upheld by the Court of First Instance for withholding legal advice from public gaze were wrong.

It held, first, as regards the fear expressed by the Council that disclosure of an opinion of its legal service relating to a legislative proposal could lead to doubts as to the lawfulness of the legislative act concerned, it is precisely openness in this regard that contributes to conferring greater legitimacy on the institutions in the eyes of European citizens and increasing their confidence in them by allowing different points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole.

The Court continued that the risk that doubts might be engendered in the minds of European citizens as regards the lawfulness of an act adopted by the EC legislature because the Council’s legal service had given an unfavorable opinion would more often than not fail to arise if the statement of reasons for that act was reinforced, so as to make it apparent why that unfavourable opinion was not followed.

Thus, the Court found that to submit, in a general and abstract way, that there is a risk that disclosure of legal advice relating to legislative processes may give rise to doubts regarding the lawfulness of legislative acts does not suffice to establish that the protection of legal advice will be undermined for the purposes of the second indent of Article 4(2) of Regulation No 1049/2001 and cannot, accordingly, provide a basis for a refusal to disclose such advice.

The Council also submitted that public disclosure of its advice would erode the independence of its lawyers because pressure would be put on them by their political masters to change the advice. The Court dismissed that argument too. It held that, as regards the risk of pressure being applied to influence the content of opinions issued by the Council’s legal service, even if the members of that legal service were subjected to improper pressure to that end, it would be that pressure, and not the possibility of the disclosure of legal opinions, which would compromise that institution’s interest in receiving frank, objective and comprehensive advice and it would clearly be incumbent on the Council to take the necessary measures to put a stop to it. The risk of affecting the independence of legal advice should be weighed against the overriding public interests which underlie Regulation No 1049/2001. Such an overriding public interest is constituted by the fact that disclosure of documents containing the advice of an institution’s legal service on legal questions arising when legislative initiatives are debated increases the transparency and openness of the legislative process and strengthens the democratic right of European citizens to scrutinize the information which has formed the basis of a legislative act, as referred to, in particular, in recitals 2 and 6 of the preamble to Regulation No 1049/2001.

The Court did state that legal advice could be kept secret in some circumstances. The advice may be of a particularly sensitive nature or having a particularly wide scope that goes beyond the context of the legislative process in question. In such a case, it is incumbent on the institution concerned to give a detailed statement of reasons for such a refusal.

Rome I Conference in London

While we're on the subject of the new Rome I Regulation, our friends over at the Conflict of Laws Blog have asked us to draw to your attention, Good Readers, their excellent sounding conference on the new Regulation.

It will be held in London, England, on September 19th 2008.

More details here.

Rome I Regulation Published

As pointed out over at the Conflict of Laws Blog, the Rome I Regulation has been published. Its more technical appellation is Regulation EC N° 593/2008 of the European Parliament and of the Council of June 17th 2008 on the law applicable to contractual obligations (Rome I).

It will apply to contracts concluded after December 17th 2009. The Regulation will apply in Ireland. On the other hand it will not apply in Denmark and does not, at present, apply in the United Kingdom.

The Rome I is a major piece of legislation and replaces the Rome Convention.