Collective Management of Music Copyright Directive

While the internet and digital culture has changed the way we consume media, the internal market hasn't quite kept up. The Commission's approach to extending the internal market online is based on the Digital Agenda for Europe (PDF) and the Single Market Act (PDF), which show a greater emphasis on EU legislation to extend the internal market online. When it comes to online music services and the transparency of collecting societies, so far there has only been a non-binding recommendation (PDF) inviting the Member States to promote these goals, but now the Commission has introduced a draft Directive to tackle these issues (PDF).

On the transparency and accountability of collecting societies (that collect royalties and then distribute them to the artists after taking a cut), the directive would codify minimum requirements governing the membership and powers of the members, along with the societies' duties when performing their financial and negotiation roles (such as distributing income due to the artists without undue delay and requiring negotiations to be conducted in good faith) (Title II). The Directive is intended to shift the power balance in favour of the members by setting out reporting duties for the collecting societies - the idea being that a better informed membership will be equipped to demand better services and so improve the position of music artists.

The second pillar of the Directive introduces multi-territorial licences to break down barriers within the internal market (Title III). Currently music rights are granted on a territory-by-territory basis, which naturally gives raise to barriers in the market. The multi-territorial licences (MTLs) won't replace the current system, but they will be an extra option for collecting societies. Interestingly, the Directive provides for artists being able to by-pass their collecting society under certain circumstances (Article 30) if the collecting society does not grant MTLs in music rights. The rightholder will be then be able to grant licences for their own online rights either directly or through another intermediary. Clearly this is meant to free artists to exploit their work across the EU and boost the use of MTLs by ensuring that rights will not be bound up nationally because of the policy and power of collecting societies (or by their inability to process them or otherwise fulfil the MTL requirements).

One of the major concerns for the music industry is that this would promote the homogenisation of music across Europe. While it may intensify homogenisation, there is already a degree of globalisation and Europeanisation of music that it unlikely to diminish by maintaining some market barriers. Having MTLs could also open up more audiences for niche artists as well by making a wider variety of music available to consumers - after all, the internet can prove useful as a tool for band promotion.

Legislatively, the directive is still at the first reading stage in the European Parliament, with Marielle Gallo (EPP) working on as the rapporteur for the Legal Affairs committee. The EESC has delivered its (non-binding) opinion on the draft, which largely welcomes the draft in its current form.

European Stability Mechanism before the ECJ

Irish independent TD (MP) Thomas Pringle’s case against the European Stability Mechanism has reached the Court of Justice in Luxembourg, referred there for interpretation on 3 questions by the national court. The 3 questions, are:



(1) Whether the European Council Decision 2011/199/EU of 25th March 2011 [PDF] breaches the EU Treaties or general principles of EU law (i.e. is it valid law?);

(2) Whether Eurozone Member States are entitled to enter into extra-EU Treaties on the Euro, and if this infringes on the EU’s exclusive competence over the Euro; and

(3) If, should the European Council decision be ruled valid, Member States are only allowed to enter into (ratify) the ESM Treaty following its entry into force (1st January 2013)?


The case will be very important for 3 reasons. First, it will help decide if the stability mechanism is compatible with EU law; second, if non-EU treaties can be used to change the governance of the Eurozone or if the EU’s exclusive competence over the Euro means that the EU treaties would have to be changed; and third, the extent to which the European Council can amend the EU Treaties. All obviously important not just for solving the economic crisis, but for how the EU and the Eurozone is governed generally.


RTÉ has reported that all 27 of the court’s judges will sit on the panel for this case – an unprecedented for a case referred to the court by a national court. On the proceedings before the court, RTÉ reported:

“Michael Cush SC for Ireland said the ESM amendments were "fully compatible with the treaties".

He countered that the ESM "will not affect the union's exclusive competence regarding monetary policy for the euro area nor will it increase the limited competence that it has in respect of the coordination of the member states' economic policy."

Thomas Henze, a lawyer for the German government, said there was no indication of any infringement of EU law.

He countered Mr Rogers' assertion that the ESM should not have been ratified when the relevant treaty, the Fiscal Treaty, did not come into force until January.

[...]

After three hours and 30 minutes of questioning, the ECJ Judges asked legal representatives to stand over their statements.

Most of the questioning of the bench was focused on the oral statements from the European Commission and the European Counsel, although Mr Rogers was called to clarify and justify his arguments on several occasions.”

The ruling is expected by the end of the year in what could be a landmark judgment.

ESM to be examined by the European Court of Justice

The Irish Supreme Court, following a challenge by independent TD Thomas Pringle, has referred 3 questions on the European Stability Mechanism to the ECJ in Luxembourg to test its compatibility with the EU Treaties. Given that securing access to the permanent bail-out fund was the main reason most Irish people voted Yes to the Fiscal Compact, it has the potential to cause severe economic and political fallout.

The questions are:

"1.Is the EU Council decision of March 25th 2011 to amend article 136 of the TFEU valid and does it violate treaty or EU law principles?


2.If the decision of March 25th 2011 is valid, is a member state entitled to join the ESM before the decision comes into force?

3.Is the terms and operation of the ESM Treaty compatible with the principles and provisions of the EU Treaties?"

As far as I know, this is the first time that either the Fiscal Compact (not included in this challenge because the referendum changed the constitution to permit ratification) or the ESM Treaty will be examined by the ECJ for compliance with the EU Treaties. The Supreme Court has asked for a quick answer from the ECJ given the seriousness of the matter (The Journal.ie reports that a full panel of seven Supreme Court judges heard the case).

Even should the Treaty prove to be in compliance with the EU Treaties, it still needs to be decided by the Supreme Court whether or not it violates the Irish Constitution.

The EU's PNR Directive in Parliament

As well as Sophie in ‘t Veld reporting on the proposed EU-US PNR Agreement on Monday, Timothy Kirkhope (ECR) presented his draft report on the EU’s own Passenger Name Record regime. The PNR Directive is technical, but it involves a huge amount of data collection on people not suspected of a crime, and the processing of data to create models used to identify unknown criminals. The law poses major questions on data protection, and there are also issues of how necessary and effective the system is, and how much of the costs airlines (and therefore consumers) will bear to pay for the system. I’ll divide this post into outlining and discussing the proposed directive and briefly looking at Kirkhope’s report to the Committee on civil liberties, justice and home affairs.

The PNR Directive.

The proposed PNR Directive (PDF) would introduce a system where a wide range of data gathered by airlines on passengers on flights into and out of the EU would be processed for the purposes of fighting terrorism and serious transnational crime. The data gathered includes the information on passports, flight arrival and departure times and destination, check in status, payment details, address and contact information, frequent flyer information, travel agent, travel itinerary, general remarks (including information on unaccompanied minors and their guardian’s contact details and relationship to the minor), seat number, baggage information, code share information, ticketing field information, and date of reservation/issue of ticket. This data would be collected from everyone on flights into and out of the EU regardless of whether or not they’re suspected of a crime and without distinction to how susceptible an air route is judged to be to use for terrorism of serious transnational crime (also the UK has suggested an amendment for the latter). This raises questions of proportionality.

PNR data is to be used in three different ways: re-actively, in real time, and pro-actively. The re-active use of PNR data is the use of data in the investigation or prosecution of a crime which has already taken place; use of PNR data in real time entails the use of data to arrest or place an individual under surveillance for a crime being committed or about to be committed; and the pro-active use of PNR data is using PNR data to build up criteria against to identify persons worthy of further surveillance or action. “Serious transnational crime” isn’t really harmonised by the Directive – it uses the list of crimes in the European Arrest Warrant, but Member States can decide to exclude some of these crimes from their transposing legislation if they think one is too “minor” – so the Directive can’t even decide what’s a “serious crime”!

The data is transferred by airlines to “Passenger Information Units” (PIUs) that will be set up to process and analyse the data, and alert national law enforcement agencies if necessary. PIUs can be national, or countries can set up joint PIUs if they want to share the costs. (The vast majority of EU Member States don’t have a PNR regime, so this PNR Directive will effectively introduce PNR systems into most Member States for the first time). The data will be retained for 30 days, after which it will be “depersonalised” (identifying data removed, but not deleted so it can still be restored and used) and retained in this masked state for a further 5 years. Data can be kept for longer if it’s used in criminal investigations or prosecutions. 5 years seems disproportionate if the data isn’t being used in an investigation or prosecution – and even the Council’s own legal service has suggested a maximum retention period of 2 years ("Draft Agreement on the Use of Passenger Name Records (PNR), Note for the Attention of Mr Stefano Manservisi Director General, DG Home, European Commission Legal Service, SJ.f(2011)603245, 18/5/2011").

Data subjects (people who own data that is being stored or processed) have rights of access, rectification and erasure, and the National Supervisory Authorities set up under EU data protection legislation (Framework Decision on Data Protection) monitor the PIUs’ use of data and assist data subjects with their requests to exercise their rights. However the purposes for gathering and processing the data is so wide that it’s debateable how much substance there is to these rights. For example, PIUs can use the data for general analysis work and to update and create criteria for “objective assessment criteria” to identify unknown criminals – a very wide purpose to use and process data, so PIUs could probably refuse under the Directive to erase a person’s data even if they aren’t suspected of a crime. Also, this use of objective assessment criteria means that the PNR regime is open to the profiling of individuals by law enforcement authorities, where they might be put under closer scrutiny simply because they happened to match a certain pattern of behaviour. There are no safeguards for independent external review of these objective factors (the National Supervisory Authorities don’t seem to have the power to do so), and nor has there been an assessment of the effectiveness of this method in identifying unknown criminals versus the false identification of innocent people.

There’s also little satisfactory evidence that PNR is necessary or effective for fighting terrorism and serious transnational crime. We already have the Schengen Information System, the Visa Information System and the Carrier’s Directive (Link) permitted the use of a less invasive Advance Passenger Information system in 2004, where airlines would transfer passport information of passengers and flight arrival/destination details (rather than the whole gamut of PNR information) – but there’s been no assessment of the effectiveness of API, or whether changes in it or the other systems could provide a cheaper and less invasive alternative. The main advantage offered by PNR is presumably the detection of unknown criminals. The Commission has used crime statistics to highlight the levels of serious crime and terrorism to establish the need for further security measures to be introduced and it has also used statistics on the of PNR data in drug seizures (see its impact assessment here: PDF) Interestingly, some of these impressive PNR statistics derive from some Member States which do not currently have a national PNR regime! (Like Belgium - PDF).

So PNR faces a lot of questions on several fronts: is it necessary, does it work, are there cheaper and less invasive alternatives? So how does the draft report in the Committee deal with this?


Timothy Kirkhope’s report.

The draft report (PDF) has contains a long list of proposed amendments to the directive (it should be noted that the report is open to amendments from the Committee before it votes on the report as a whole).

Some of these amendments would clarify the scope of the Directive – by stating that it applies to airlines incorporated in the EU and that store data in the EU, and expanding the Directive to include intra-EU flights as well as flights entering and leaving the EU. By including intra-EU flights, there would obviously be a much, much greater amount of data gathered on people. In Committee it was explained that the Commission wanted the Directive to avoid including intra-EU flights so it could test the system out first (the Directive includes provision for a review in 5 years on whether to include intra-EU flights), while Kirkhope countered that gradual introductions of schemes rarely work in his experience. The costs of transferring data to the PIUs would be borne by the airlines, while Member States would pay for the PIUs and their work. Kirkhope said that the estimated costs that would be passed on to consumers in ticket prices would be between 10 to 18 cents.

The report’s amendments insert provisions regulating the transfer of data between Member States to ensure that safeguard standards are maintained and that data is only shared in certain circumstances. There are also new provisions to more extensively regulate the transfer of data to third countries, though the assessment is still left to Member States so there isn’t a common decision on the adequacy of a third country’s data protection standards like there is for internal market matters.

The amendments would also clarify the state of data after the initial 30 day period – the Directive uses the phrases “masked” and “anonymised”. Unfortunately, the draft report decides to simply change the phrasing to a more unified “masked” terminology rather than changing the procedure so identifying data will be deleted after 30 days. Some amendments do aim to strengthen data protection by setting down punishment for data breaches such as demotion, denial of system access, formal reprimands, and removal form duty, as well as an obligation to inform data subjects that might be affected by a data breach. National Supervisory Authorities would be given powers to take disciplinary action against persons responsible for a privacy breach, increasing their powers of independent oversight.

Kirkthorpe believes that the use of a PNR regime is necessary and proportional. While the necessity of the Directive is probably best debated by the Committee and whole Parliament, there are still questions over how proportional the Directive would be even with the report’s amendments, particularly over the targeting (or lack of targeting) of air routes, the oversight of creating and use of objective assessment criteria, and the length of the retention period. It does provide some good improvements to people’s rights to access, rectify and erase their data and makes it easier and more effective to exercise these rights (though the problem of the content of these rights given the wide use of data remains).

I’m very sceptical of the necessity for a PNR system – a lot of the analysis backing up the proposal seems to be based on numbers on the increase of crime together with rhetoric on fighting crime and anecdotal examples of how PNR could be used, rather than an analysis of the benefits of PNR versus the existing EU databases. It seems that we are being asked to accept the creation of a massive information gathering system on trust, and I’m not convinced.

ACTA referred to the European Court of Justice

The Commission has decided to refer the Anti-Counterfeiting Trade Agreement to the ECJ to assess its compatibility with EU law, including the fundamental rights guaranteed under EU law. Commissioner Karel de Gucht said:

"We are planning to ask Europe’s highest court to assess whether ACTA is incompatible - in any way - with the EU's fundamental rights and freedoms, such as freedom of expression and information or data protection and the right to property in case of intellectual property.

As you are no doubt aware, within the EU institutional process, the European Commission has already passed ACTA to national governments for ratification. The Council has adopted ACTA unanimously in December and authorised Member States to sign it. The Commission has also passed on ACTA to the European Parliament for debate and a future vote.

That said, I believe the European Commission has a responsibility to provide our parliamentary representatives and the public at large with the most detailed and accurate information available. So, a referral will allow for Europe’s top court to independently clarify the legality of this agreement."

However he goes on to say:

"As I have explained before the European Parliament on several occasions, ACTA is an agreement that aims to raise global standards of enforcement of intellectual property rights. These very standards are already enshrined in European law. What counts for us is getting other countries to adopt them so that European companies can defend themselves against blatant rip-offs of their products and works when they do business around the world.

This means that ACTA will not change anything in the European Union, but will matter for the European Union.

[...]

So let me be clear: ACTA will change nothing about how we use the internet and social websites today – since it does not introduce any new rules. ACTA only helps to enforce what is already law today.

ACTA will not censor websites or shut them down; ACTA will not hinder freedom of the internet or freedom of speech.

Let's cut through this fog of uncertainty and put ACTA in the spotlight of our highest independent judicial authority: the European Court of Justice.

This clarity should help support a calm, reasoned, open and democratic discussion on ACTA - whether at the national or at the European level. We will also be in contact with the other European institutions to explain this step and why it would make sense that they make the same move."

It seems odd to subject ACTA to judicial review when its provisions are open to national interpretation in places, while not reviewing the current IPR regime in the EU. After all, if the current regime has already largely introduced the ACTA system domestically, would a negative judgment by the Court result in a major investigation into the existing laws...?

This judicial review is mainly aimed at providing a visible counter to the accusations leveled at the Agreement by the European public. Because of the secret nature of the negotiations and the timing of the SOPA and PIPA legislative battles in the US, the Commission hasn't been able to effectively put its side of the story across, so it's relying on a court judgment to solve this problem. Given the vague nature of some of the provisions and the false accusations that have been flying around, the ECJ's judgment will be able to refute some of these. However this avoids the issue of whether we aren't balancing rights correctly through our intellectual property rights regime. The criticisms of the Treaty aren't just based on fundamental rights.

This balance has been pushed for a long time simply in the direction of ever stronger enforcement in a way that doesn't take into account the the issues raised by the internet age, particularly via the new focus on indirect "economic advantage" as opposed to commercial advantage. There are many uses of media now that are different from both their commercial use and the use of physical goods - from classic commercial activities which do need to be protected. We need to think more about the purpose of IPR and how far we should restrict "indirect economic advantage"; whether or not it should be punished at the same level as commercial advantages, or if different approaches should be used to reflect the social and economic value and impact of the relevant activity. And what about setting damages at the level of the retail price rather than the more proportionate level of the loss suffered?

This isn't a simple, headline grabbing fight over fundamental rights (although it raises some questions over how we want to balance them in practice), but also over the usefulness, proportionality and effectiveness of our IPR laws. I hope throwing out some of the wilder claims about ACTA does not puncture a necessary debate - will the EP measure up?

What legal action is the Commission taking against Hungary?

The Commission has announced that it will be taking legal action against Hungary, but only so much can be done under EU law. While people point out that:

"Viktor Orbán's regime combines the extreme centralisation of economic assets (including the expropriation of the private pension funds, of several public foundations and the forthcoming centralisation of the municipal government's assets) and the monopolisation of power in a single party that intends to dominate every aspect of social and private life, turning citizens into subjects. The improvised nature of many of the new laws creates a wide margin for arbitrary decisions that increase dependence and insecurity.

In addition to a frontal attack on civil liberties, the government has redistributed economic assets (particularly through the tax system and investment allocations) in favour of interest groups close to Fidesz and a restricted layer of the well-to-do. This group zealously defends the party's power and executes its guidelines.

At the same time – through the unilateral rewriting of the labour code, the restriction of union action and collective bargaining rights, the radical dismantling of social welfare nets and independent social care institutions – the government exposed the most vulnerable social groups (the poor, the unemployed, Roma, pensioners, sick and handicapped) to the unfolding economic crisis. Life is precarious for those who live on wages and have no reserves or additional revenue."

...the Commission doesn't have the jurisdiction (and neither does the European Court of Justice) to take Orban's government to task over all these issues. The Commission has decided to focus on the areas of the independence of the judiciary, the independence of the central bank, and the independence of Hungary's data protection authorities: probably because the EU legal case is strongest here. Let's look at some of the reasons behind the legal action:

"1) Independence of the national central bank

"The Commission has identified several breaches of primary law, notably breaches of Article 130 TFEU stipulating full independence of the central bank and of Article 127(4) TFEU requiring consultation with the ECB "on any draft legislative provision in its field of competence".

•Article 130 TFEU states that: “neither the ECB, nor national central bodies, from bank … shall seek or take instructions from Community institutions or any government of a Member State or from any other body”.

•Article 127(4) TFEU stipulates that "the ECB shall be consulted […] on any draft legislative provision in its field of competence"

Moreover, 14.2 of the Statute of the European System of Central Banks and of the ECB as well as Article 4 of Council decision (98/415/EC) on timely consultation of the ECB were not respected. On a number of elements, the Commission has invited the Hungarian authorities to provide clarification.

The infringements identified in the letter of formal notice concern both the MNB law ('Magyar Nemzeti Bank') but also the new constitution.

Under the MNB law, the Minister can participate directly in the meetings of the Monetary Council, offering to the government the possibility to influence the MNB from the inside. Similarly, the agenda of MNB meetings needs to be sent to the government in advance, thus impeding its capacity to hold confidential discussions. Also, changes in the remuneration scheme for the Governor are made again immediately applicable to the incumbent, while they should apply only as of a new term to avoid using salaries to put pressure on the MNB. Finally, the Governor and the members of the Monetary Council have to take an oath (of fidelity to the country and its interests) whose text is problematic given that the Governor of the MNB is also a member of the General Council of the ECB.

The Commission has doubts on the rules of dismissal for the Governor and the members of the Monetary Council which are prone to political interference (even the Parliament can propose to dismiss a member of the Monetary Council) and possible misuse. Also the frequent changes of the institutional framework of the MNB raise doubts, for instance via the increase in the number of Monetary Council members together with the possibility of increasing the number of deputy governors without due consideration of the MNB’s needs.

Moreover, a constitutional provision regulates the possible merger of the MNB with the financial supervisory authority. While the merger is not a problem as such, the MNB Governor would become a simple deputy chairman of the new structure, which would structurally encroach on his independence.

2) Independence of the judiciary

The infringement case affecting the judiciary focuses on the new retirement age for judges and prosecutors and relates to Hungary's decision to lower the mandatory retirement age for judges, prosecutors and public notaries from 70 years to the general pensionable age (62 years) as of 1 January 2012.

EU rules on equal treatment in employment (Directive 2000/78/EC) prohibit discrimination at the workplace on grounds of age. Under the case-law of the Court of Justice of the EU, an objective and proportionate justification is needed if a government decides to reduce the retirement age for one group of people and not for others. This principle was affirmed when the Court ruled on 13 September 2011 that prohibiting airline pilots from working after the age of 60 constitutes discrimination on grounds of age.

In Hungary's case, the Commission has not found any objective justification for treating judges and prosecutors differently than other groups, notably at a time when retirement ages across Europe are being progressively increased and not lowered. The situation is even more legally questionable because the government has already communicated to the Commission that it intends to raise the general retirement age to 65.

As regards the independence of the judiciary, the Commission is also asking Hungary for more information regarding new legislation on the organisation of the courts. Under the law, the president of a new National Judicial Office concentrates powers concerning the operational management of the courts, human resources, budget and allocation of cases. There is no longer collegial decision-making of the operational management of the courts or other appropriate safeguards. One person alone now makes all important decision on the judiciary, including as regards the appointment of judges. In addition, the mandate of the former president of the Supreme Court, who was elected for six years in June 2009, was prematurely terminated at the end of 2011. In contrast, other former judges of the Supreme Court continue their mandate as judges of the new Curia, which has replaced the Supreme Court. The Commission expects detailed answers of the Hungarian authorities to be able to decide whether further infringement proceedings are needed.

3) Independence of the data protection supervisory authority

The case on the data protection supervisor relates to Hungary's recent decision to create a new National Agency for Data Protection, replacing the current Data Protection Commissioner's Office as of 1 January 2012. As a result, the six-year term of the Data Protection Commissioner currently in office, who was appointed in 2008, will be prematurely put to an end. There are no interim measures until the term of the current Commissioner's term ends in 2014.The new rules also create the possibility that the prime minister and president could dismiss the new supervisor on arbitrary grounds.

The independence of data protection supervisors is guaranteed under Article 16 of the Treaty on the Functioning of the EU and Article 8 of the Charter of Fundamental Rights. In addition, EU rules on data protection (Directive 95/46/EC) require Member States to establish a supervisory body to monitor the application of the Directive acting in complete independence. This has been confirmed by the Court of Justice. In its ruling in a case concerning Germany (C-518/07 of 3 March 2010), the Court underlined that data protection supervisory authorities have to remain free from any external influence, including the direct or indirect influence of the state. The mere risk of political influence through state scrutiny is sufficient to hinder the independent performance of the supervisory authority's tasks, the Court ruled."

The outcry over what is going on in Hungary has been very political - in the sense that it's been about the high politics of rights and what makes a fair democracy - and rightly so. The Commission's response reveals the nature of the EU's power when it comes to protecting these key rights: as an organisation of sovereign Member States, the EU can only act where the Member States have contravened EU law. The EU treaties don't define a specific governing structure that Member States have to have, such as a presidential or parliamentary system or how their judiciary is organised (though it does set human rights and democratic tests for candidates to pass before they join), so the points of EU law can be quite narrow. This is especially obvious when it comes to the Commission's action over the judiciary laws - the action focuses on the unfair dismissal of serving judges, rather than the general separation of powers between the judiciary and the executive. The press release references these wider questions and demands answers, but whether or not there will be further legal action depends on whether or not the measures breach EU law.

The Commission (and the EU) is therefore not well placed to become a crusader for liberal democracy in its Member States, so there's a limit to what we can expect. The EU can, however, remove Hungary's EU voting rights via Article 7 TEU as a last resort, but this would require a super-majority. The Commission should investigate the changes to the electoral system and judiciary with an eye to using Article 7 if Hungary refuses to reverse any abuses. While the EU and the Commission's power might be limited (and we need to bear this in mind when Hungary claims it has changed its judicial rules in line with EU requirements), we should demand that all Member States live up to minimum democratic standards if they want to stay in the EU.

Today the European Parliament will be debating the Hungarian situation.

An Education in Fees

Should the English be charged more?

The huge rise in University tuition fees in the UK caused a massive political storm, and the devolved regional governments signaled that they would step in to prevent such increases locally. In Northern Ireland the plan is to stop any non-inflation related rise in fees and in Scotland University education will remain free, but this has raised concerns over NI and Scottish universities being flooded with English students hoping to escape the burden of higher student loans.

To prevent local students from being crowded out, Scotland will introduce fees for non-resident UK nationals at the same £9,000 level, and the Northern Ireland Executive is thinking of following suit. However, these fees are being challenged as a breach of the European Convention of Human Rights* for being contrary to its provisions on education and non-discrimination. It seems unlikely that the case will be sucessful - after all, Scotland has maintained free education for residents whereas English, Welsh and NI students would have to pay a fee (albeit lower than elsewhere in the UK) - but it has highlighted the issue of discrimination being able to take place within an EU Member State between its own nationals, and yet be outlawed between EU nationals.

Because while students will pay different fees depending on where they live within the UK, EU citizens from outside the UK will be able to access university education on the same basis - the same fees - as locals. Of course, it's not quite as simple as that because UK nationals will be able to draw on benefits that EU students who aren't working won't be entitled to, but the difference on fees is still significant. The political implications are huge - within the UK it will spark many debates: why should the regions with develoved governments be able to have lower fees? should the regions be able to discriminate against the English metropole? is it just that EU nationals should be treated better than part of the UK population?

On the EU question, it's a matter of the weakness of EU citizenship. EU citizenship is limited to cross-border situations, and Member States are free to decide how they grant citizenship and how they treat their own nationals. For a while, it looked like the European Court of Justice** would break down this connection between a cross-border element and relying on citizenship rights in the Zambrano case, but it categorically ruled it out shortly afterwards.

That students from elsewhere in the EU will be charged less is being called a "loophole", but it's a part of the fundamental rule of EU law of non-discrimination on the basis of nationality. The difference arises because EU citizenship rules only regulate cross-border relations, while these fees are being regulated by national and regional rules. The tuition fees debate will rumble on in the UK for some time yet, and get caught up in the wider debate of the relationship between the UK's constituent nations, and, perhaps, the EU too.


* Part of the Council of Europe, and not the EU!

** The EU Court.

The Curious Case of Citizen McCarthy

In my previous post I've written about how the Court of Justice (that's the EU court based in Luxembourg) has been influenced by the cases that come before it when it comes to citizenship, and how it has shaped EU citizenship. Last week the Court handed down its McCarthy Judgment which complicates things. (This post is my immediate reaction to the ruling, which I've just read).

Again, these cases and the legal arguments that go into them really affect people's lives, and it's interesting to see how the different circumstances of a person can affect which side of the line they fall on.

As a recap, in Zambrano the question was how far EU citizens can rely on their EU citizenship rights in the Member State of their own nationality, when they have never moved to another Member State. The judgment was vague so I outlined two models of citizenship: either relying on EU citizenship in your own country is only available as an option where you've either used your free movement rights before or where you might be prevented from using them effectively in the future ("Back to the Future" model; or you have a right to reside in your own Member State independent of your national citizenship,* and therefore you can rely on EU citizenship simply if EU law applies to EU citizens in those cases. This second option means that Member States can't discriminate against their own citizens so that EU citizens are treated better than their own nationals ("reverse discrimination").

[* Member States control who gets their citizenship, and therefore who gets EU citizenship deriving from this.]

The problem in the McCarthy case is pretty much an issue I raised with the Back to the Future model (because I knew the case was coming up, and I know people the senario has affected in real life [for want of a better term]):

"Under UK law if a British national marries a third country national and wants to bring them home to the UK, and they haven't used their EU free movement rights, then they have to pay to get them into the country. So other EU nationals and British nationals who have used their free movement rights have preferential treatment over British nationals who never used their free movement rights. It is unlikely that, under the Back to the Future model, that that British citizen could claim that they wouldn't be able to use their EU rights effectively in the future if their spouse couldn't join them in the UK, so they wouldn't be covered by EU citizenship law."

This is essentially what happened to McCarthy, who had never left the UK, nor been a worker under EU law. She applied for an Irish passport, which she got, and tried to assert her EU citizenship rights (based on her Irish citizenship) to bring her spouse from a third country (not an EU citizen himself) into the UK to live with her. Could she rely on her EU citizenship?

Though I stated that I thought the Court was using the "Back to the Future" model in Zambrano (the reasoning was vague), I thought that over time the Court would become more explicit in its reasoning and follow the separate right to reside reasoning. So I thought 3 outcomes were possible, in order of desending likelihood:

1. She could, because she had Irish citizenship, and therefore she could be said to be living in a Member State of another nationality despite never having moved. That she only applied for the Irish citizenship so this would be the case ("cherry picking" her legal rights in the words of Advocate General Kokott) doesn't matter as there is nothing wrong in making use of legal rights made available to you. This would not concern the Zambrano decision.

2. She could not rely on the Citizens' Directive (2004/38), because she is a national of the the UK. However, she has a right to reside due to her EU citizenship regardless of having such a right due to her nationality, and therefore the UK could not discriminate against her compared to EU citizens of non-UK nationality if they are in the same position. [Explicitly adopting the reasoning of AG Sharpston in the Zambrano case that was implicitly, but not clearly, endorsed].

3. As 2, but referring to the vague idea of the substance of EU citizenship rather than reasoning clearly. So as in Zambrano.

What the Court actually did, was rule that she did not have the protection of EU law as a citizen as she was a national of the Member State and had not exercised any free movement rights. Her Irish citizenship was irrelevant, and, in fact, there is no right of residence separate from the exercise of free movement rights. In other words, there is only the Back to the Future model.

To quote the Court (skippable if you're not interested in the technical legal reasoning of the Court):

"39 Hence, in circumstances such as those of the main proceedings, in so far as the Union citizen concerned has never exercised his right of free movement and has always resided in a Member State of which he is a national, that citizen is not covered by the concept of ‘beneficiary’ for the purposes of Article 3(1) of Directive 2004/38, so that that directive is not applicable to him.

40 That finding cannot be influenced by the fact that the citizen concerned is also a national of a Member State other than that where he resides.

41 Indeed, the fact that a Union citizen is a national of more than one Member State does not mean that he has made use of his right of freedom of movement.

[...]

The applicability of Article 21 TFEU

[...]

47 Indeed, the Court has stated several times that citizenship of the Union is intended to be the fundamental status of nationals of the Member States (see Case C‑34/09 Ruiz Zambrano [2011] ECR I‑0000, paragraph 41 and case-law cited). Furthermore, the Court has held that Article 20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status (see Ruiz Zambrano, paragraph 42).

[...]

49 However, no element of the situation of Mrs McCarthy, as described by the national court, indicates that the national measure at issue in the main proceedings has the effect of depriving her of the genuine enjoyment of the substance of the rights associated with her status as a Union citizen, or of impeding the exercise of her right to move and reside freely within the territory of the Member States, in accordance with Article 21 TFEU. Indeed, the failure by the authorities of the United Kingdom to take into account the Irish nationality of Mrs McCarthy for the purposes of granting her a right of residence in the United Kingdom in no way affects her in her right to move and reside freely within the territory of the Member States, or any other right conferred on her by virtue of her status as a Union citizen.

50 In that regard, by contrast with the case of Ruiz Zambrano, the national measure at issue in the main proceedings in the present case does not have the effect of obliging Mrs McCarthy to leave the territory of the European Union. Indeed, as is clear from paragraph 29 of the present judgment, Mrs McCarthy enjoys, under a principle of international law, an unconditional right of residence in the United Kingdom since she is a national of the United Kingdom.

51 The case in the main proceedings also differs from Case C‑148/02 García Avello [2003] ECR I‑11613. In that judgment, the Court held that the application of the law of one Member State to nationals of that Member State who were also nationals of another Member State had the effect that those Union citizens had different surnames under the two legal systems concerned, and that that situation was liable to cause serious inconvenience for them at both professional and private levels resulting from, inter alia, difficulties in benefiting, in one Member State of which they are nationals, from the legal effects of diplomas or documents drawn up in the surname recognised in the other Member State of which they are also nationals. [Own note: so EU law only applied since national law might prevent EU citizens from using their EU rights in the future].

[...]

53 Thus, in Ruiz Zambrano and García Avello, the national measure at issue had the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status or of impeding the exercise of their right of free movement and residence within the territory of the Member States.

54 As stated in paragraph 49 of the present judgment, in the context of the main proceedings in this case, the fact that Mrs McCarthy, in addition to being a national of the United Kingdom, is also a national of Ireland does not mean that a Member State has applied measures that have the effect of depriving her of the genuine enjoyment of the substance of the rights conferred by virtue of her status as a Union citizen or of impeding the exercise of her right of free movement and residence within the territory of the Member States. Accordingly, in such a context, such a factor is not sufficient, in itself, for a finding that the situation of the person concerned is covered by Article 21 TFEU."

There may still be some cases where EU citizens can rely on their Union citizenship against their own Member State on grounds of non-discrimination, but this makes it extremely difficult to argue if the Court refuses to acknowledge the significance of your Union citizenship in the first place. The judgment makes clear that in Zambrano the decisive factor was that the Union citizens would be required to leave the territory of their home country, and that of the whole Union as they were young children dependent on their non-EU national parents. We still don't know what the new idea of "substance of EU citizenship rights" is, but it doesn't mean what we thought it might mean - the Civis Europeus Sum that a more rational, unified idea of citizenship might bring.


It's obvious that the law on citizenship is messy - and, in my opinion, highly unsatisfactory. It is difficult for citizens to know when they are protected, and when they are not - and sometimes it can be based on a tiny detail of their life or how they might lead their life. Whether children are involved or not can also be a factor - perhaps this shows a certain sentimentality of the Court that it tries to rationalise through its case law. In any case, McCarthy is a blow for those supporting a more equal citizenship.




**(As an aside, the Court referred to Article 21 TFEU rather than Article 20 as it did in Zambrano - since they repeat each other to a certain extent makes the relevance unclear, but it's a debate best left to academic literature rather than this blog post).**

Citizen Zambrano

Eurocrats: reviled faceless creatures that have no sense of fellow human feeling, right? Well it actually seems that a lot of them are softies whose conscience can influence the outcome of their decisions. Even the European Court of Court of Justice in Luxembourg (not to be confused with the European Court of Human Rights in Strasbourg, which is part of the confusingly, similarly named Council of Europe), critised by the European left for the Laval and Viking decisions on union action, can be swayed by the human stories that come before them. In fact, there's a good case to be made that the development of the law on European citizenship owes a lot to the stories of families and individuals in difficult situations.

In early March the ECJ ruled in just such a case, in what is a milestone case on citizenship, in Zambrano. Not that you would have read about it in the media. In fact I only read about it in The Irish Times, which covered the case and the subsequent reaction of the Irish Government. The excellent Verfassungsblog covered it in German. Zambrano is a landmark case as it strikes a blow against reverse discrimination (the idea that Member States can give fewer rights to their own citizens than to EU ones from other Member States), and it could have an effect on immigration and national citizenship laws. So here are my own belated thoughts on the case - as with all court stories, it will require some side-stories to give it context, but I hope the human interest element will keep it interesting, and that it will provide some insight into how the Court can act and think.


Citizen Zambrano

Ruiz Zambrano and his wife , Moreno, left their home country of Colombia in 1999 for Belgium. They were looking for asylum as Ruiz had been subjected to 2 years of extortion demands, backed up by death threats, by private militias, and had witnessed assaults on his brother and his 3-year-old son had been kidnapped for a week in January 1999. Their application for asylum was refused, but a non-refoulement condition was attached - Belgian authorities could not send them home as the civil war situation in Colombia was too dangerous. Ruiz Zambrano worked in Belgium without a work permit, but he paid taxes and social security contributions. He was fired from his job as he didn't have a work permit, and he wasn't allowed unempolyment benefit as the work he had done, and contributions he paid wouldn't count as he never had a work permit. In addition, with the deportation order hanging over the family's head, it took years of legal challenges to get even a temporary residence permit. In the meantime the couple had 2 children, who had Belgian citizenship (and therefore EU citizenship) under Belgian law.

If the 2 children had been EU citizens from another Member State, they would have been protected by EU law, and their parents would have been allowed to live and work there while they were still children without permits. Even as Belgian citizens, they could have the protection of EU law if they had used their free movement rights (e.g. moving to another EU country for a while) at some point in the past, but as they had never left the country of their nationality, it appeared that Belgian law would discriminate against its own citizens. So the Belgian court essentially asked the ECJ: does EU law protect against such discrimination, and if so, would the Zambrano parents be entitled to stay and work in Belgium without the relevant permits as the carers of EU citizens?

Yes, the ECJ said, since without the right to live and work in Belgium, they (the children with citizenship) could be removed from the Union to remain with their parents if they were ejected from the country. By being removed from Belgium (or risking that removal), the children:

"... [would be deprived] of the genuine enjoyment of the substance of the rights conferred by the virtue of their status as citizens of the Union." [paragraph 42]

A victory for equality of all EU citizens before the law! Um, well, actually, not necessarily. In fact, it's a bit unclear how far reverse discrimination has been ruled illegal. What is the "substance of citizenship rights"? The ECJ hasn't mentioned it before, and it didn't explain it in its judgment. There were also 2 arguments that would have had the same effect for the Zambrano family, but different effects for other EU citizens, and it's not clear which one the ECJ accepted.


Back to the Future Citizenship

Here's where EU citizenship becomes more messy and complicated. There's a Citizen's Directive (Directive 2004/38/EC), which grants rights to EU citizens living in another Member State other than their own, and which expressly says that it does not apply to citizens living in their own Member State. The ECJ has got around this in the past by finding an EU law angle. So in Surinder Sigh, a non-EU national married a British citizen, and they then moved to Germany to live and work there until they moved back to the UK. When they moved back, his wife wanted to divorce him, and the UK tried to deport him before they were divorced. The ECJ said that it would render the right to move and work in other Member States unattractive if the spouses of citizens could be deported when they came back - however, once the divorce is final, then third country nationals no longer enjoy the rights of a spouse of an EU citizen.

In the Zambrano case there was no movement, but the ECJ may be protecting the potential exercise of EU rights by the children citizens. It's done this before in Rottmann, where an Austrian citizen living in Germany lost his citizenship of Austria when he gained German citizenship. The problem was that he hadn't disclosed all the necessary information on his application for German citizenship, and the German authorities decided to remove German citizenship from him - which would have left Janko Rottmann stateless. The ECJ stepped in and said that it was up to the Member States to decide when citizenship was granted, but they re prevented by EU law from unilaterally withdrawing it (and therefore Rottmann's German citizenship in this case) were it would result in a citizen not being able to exercise any of his or her rights. So a citizen could rely on their EU citizenship to protect thagainst their own Member State if they would be deprived of all potential future use of those rights.

The problem with the "Back to the Future Citizenship" is that it's messy and unclear when someone is covered and when they're not. Under UK law if a British national marries a third country national and wants to bring them home to the UK, and they haven't used their EU free movement rights, then they have to pay to get them into the country. So other EU nationals and British nationals who have used their free movement rights have preferential treatment over British nationals who never used their free movement rights. It is unlikely that, under the Back to the Future model, that that British citizen could claim that they wouldn't be able to use their EU rights effectively in the future if their spouse couldn't join them in the UK, so they wouldn't be covered by EU citizenship law.


Civis Europeus Sum - I am a European Citizen

While the Citizen's Directive doesn't apply to EU citizens living in their own country, the Treaty articles on citizenship and the prohibition of discrimination on the basis of nationality (Articles 18 & 20 TFEU) are, in legal jargon, "directly effective". This means people can rely on them without extra laws being passed by the EU or Member States.

Article 20 TFEU gives EU citizens the right to "move and reside freely within the territory of the Member States". The second method is perhaps an example of law being almost laughably technical, because it depends on how that "and" is interpreted. If you have to both move and reside, then you have to use free movement rights and the Back to the Future model applies. If you have 2 separate rights - to move and to reside - then citizens living in their own Member State would have a right to reside there under both their national citizenship, and their European citizenship. Then the non-discrimination clause would mean that they could not be "reverse discriminated" against by their own Member State!

This is the method proposed by British Advocate-General Eleanor Sharpston in her Opinion on the case. It would mean that just by living in the EU - anywhere in the EU - a citizen would be under the same protection as other EU citizens, and rights would not be dependent on complicated legal reasoning.


What was the Court thinking?

You can't really tell which of these the Court supported in it judgment, but it still wanted to help the Zambranos. It's not good enough, however for a Court to be so unclear about what the law is. As the Court cannot give the separate reasonings of the different judges, but only a single court judgment, there may have been a compromise to fudge the issue and not take Sharpston's more radical proposal.

However, I don't want to leave you with the impression that it's only the ECJ that influences the development of EU citizenship. The only reason a Belgian court asked the ECJ in the first place is that the Belgian constitutional court had held that reverse discrimination was not permitted, setting how EU law should work in the area into doubt.

Zambrano was a big step for EU citizenship, but it will be a long time before we know what it really means.

Is Dalli really going to introduce a European smoking ban?

"Commission preparing pan-European smoking ban" exclaims the EUobserver:

"The European Commission is preparing to introduce legislation in 2011 to ban smoking in public places right across the union.

[...]

Health commissioner John Dalli has said [...] "We need a complete ban on smoking in all public spaces, transport and the workplace," he said in an interview on Monday (11 October) with German daily Die Welt."

Gulf Stream Blues has picked up on the story, noting that the US hasn't even brought in a federal law on smoking bans, so for it to be achieved at the European level would be a big step:

"For European federalists, it would be impressive if the EU were able to enact a union-wide social/health law that the United States has never even attempted to enact federally. But for Eurosceptics, such a move will surely be seen as un inexcusable intrusion not only on member state sovereignty but on people's individual civil liberties."

But is the Commission going to introduce a pan-European smoking ban? I doubt it.


Tougher on smoking yes, European smoking ban no:


The news of this smoking ban comes from an interview the health Commissioner, John Dalli, had with the German newspaper Die Welt, published yesterday. While the Commissioner indeed wants to bring in legislation to make smoking more unattractive, he didn't exactly say that he was planning to introduce legislative proposals for a pan-European smoking ban:

"Er kündigte an, dass die Kommission im kommenden Jahr neue Gesetzespläne vorlegen werde. Ziel der neuen Tabakproduktrichtlinie werde es sein, Rauchen in allen EU-Ländern weniger attraktiv und weniger gesundheitsschädlich zu machen. Dies könnte beispielsweise durch eine maßgebliche Verringerung giftiger und süchtig machender Inhaltsstoffe wie Nikotin geschehen."

Own translation: "He [the Commissioner] announced that the Commission will introduce new legislative proposals in the coming year. The goal of the proposals will be to make smoking less attractive and harmful in all EU countries. This could be done, for example, by reducing toxic and addictive substances [contained in cigarettes], such as nicotine."

The EU already regulates the packaging of cigarettes and the contents of cigarettes (levels of tar and nicotine) under Directive 2001/37/EC (link). The Commission has indeed launched a consultation on how to strengthen this legislation to make the packaging less attractive and to reduce the harmful contents of cigarettes. Note that this is based on the legal bases in the Treaty relating to the single market - though health is a major concern here, the harmonisation is based on ensuring a single market to prevent restrictions on imports, etc.

The EU also legislates on the taxation on cigarettes through its competence in the area of VAT (to prevent smuggling, so it is still a single market related measure). The relevant legislation can be found here. So there's plenty of scope for legislative proposals in the area of tobacco products and the EU can take a harder line on them.


No European Rauchverbot:

On smoking bans, Die Welt reports:

"Dalli forderte zudem die konsequente Einführung von rauchfreien Zonen in der EU. „Wir brauchen ein komplettes Rauchverbot in allen öffentlichen Räumen, Verkehrsmitteln und am Arbeitsplatz“, sagte der aus Malta stammende Konservative. Ausnahmen für Eckkneipen und Bierzelte halte er nicht für sinnvoll. Schließlich gehe es „nicht nur um die Gesundheit der Besucher, sondern auch der Angestellten“. Zu wirtschaftlichen Begründungen von Ausnahmeregelungen beim Rauchverbot sagte Dalli, es könne nicht sein, dass der wirtschaftliche Vorteil wichtiger sei als die Gesundheit der Menschen."

Own translation: "In addition, Dalli demands the introduction of smoke-free zones in the EU. "We need a complete smoking ban in all public places, public transport and in the workplace," said the Maltese conservative. Exceptions for corner bars and beer tents do not make sense. Finally, it is not only about the health of the visitors, but also that of the employees." On the economic justifications of exceptions to the ban Dalli said that the economic benefit could not be more important than people's health".

Very strong words in support of a smoking ban across Europe, but it's separate from the suggestions of legislative proposals. Last year, the Commission introduced a proposed - non-binding - Recommendation that Member States introduce smoking bans and work to discourage smoking. I wrote at the time that claims that the EU was introducing a smoking ban were wrong in not just that case, but in the sense that the EU is precluded from harmonising health laws under the Treaties (and this is still the case under article 168 TFEU). I stand by my argument. A smoking ban in public places does not concern the single market and internal EU trade, so I cannot see how harmonisation of smoking bans could take place under the internal market heading, and such harmonisation is excluded from the competence of the EU.

In addition, on the Commission's health policy page, there is no mention of a proposed ban, while there is a link to the consultation on strengthening labelling/contents rules for tobacco products. So I think that talk of a Europe-wide ban on smoking in public places is just an over-excited media response to the German interview.

I'm chalking this one up as a Euromyth.

What Vodafone do not giveth, Vodafone cannot taketh away

The EU Law Blog has a great post explaining a recent ECJ judgment on the mobile phone roaming charges. The case concerned the legality of the regulation establishing the cap on roaming charges, and I'd recommend the article if you're interested or want to get a feel for how the ECJ decides such things.

Another interesting thing (though it's not very surprising) is the behaviour of Vodafone (and perhaps the others, but it's Vodafone that stuck in my mind). When the roaming charges legislation was passed and being announced on the news, it was noticable that Vodafone had quickly got advertising out pushing the idea that it was reducing roaming charges for its customers - as if it was an entirely voluntary decision for the good of its customers/the business. It's not surprising that Vodafone was a bit upset at loosing a nice stream of income, but the litigation proves how willingly it adopted the change.

Tobacco on Trial

EUobserver has reported that a Belgian Court has referred questions to the European Court concerning a case taken there by anti-smoking campaigners fighting to get a judicial ban on the sale of cigarettes and the collection of tax on their sale. The case is being referred to the European Court because the campaigners are relying on the Lisbon Treaty, the Charter of Fundamental Rights and the UN Convention on the Rights of the Child 1989 in their case, so this case, if admitted, has the potential to have EU-wide effects. It's important to stress that this case has not yet been admitted, and if it is, it will be well over a year before there's a ruling. Still, the issue of tobacco bans and the EU reoccurs constantly.

Last year the Commission promoted a recommendation advocating an EU-wide ban on smoking in public places. I criticised this, because it was bandwagon politics: the EU does not have the power to legislate for such a ban. Worse, for the EU bandwagon politics backfires spectacularly, almost without fail: these kind of wishful, "wouldn't it be nice...?", recommendations devalue the perceived worth of the EU, and raise fears, or hopes, of European action that cannot be fulfilled, cumulatively leading to disillusionment and resentment of the EU that tars the European idea by implication.

So is the position different under the Lisbon-amended TFEU? The old Article 152 and the new (and renumbered) Article 168 both exclude the harmonisation of the laws of the Member States. Paragraph 5 of Article 168 states:

"The European Parliament and the Council... may also adopt incentive measures designed to protect and improve human health... [highlights cross border issues]... and measures which have as their direct objective the protection of public health regarding tobacco and the abuse of alcohol, excluding any harmonisation of the laws and regulations of the Member States." [Emphasis mine].

Case law also states that legislation cannot try to harmonise laws in an area that has been explicitly excluded from harmonisation in the Treaties by relying on a different article (say, on the free movement of goods). It's hard to see the Court circumventing this purely on the Lisbon-amended treaties to bring in such radical change.

When it comes to the Charter of Fundamental Rights and the UN Convention, I'm unsure of which specific articles to look at as I haven't read the actual case that the campaigners are putting, and how far the Charter and Convention could be considered applicable. From a quick glance over the Charter, the articles dealing with health, child rights, private life, etc., are, as you would expect, general rights that don't give much scope for the positive interventionism that a smoking ban would imply. The Convention is not an integral part of EU law, but could be drawn on as a part of the legal culture of the Member States (though it's hard to see this having a huge bearing on any ruling - at least any ruling as decisive as that the campaigners are hoping for).

Health policy should largely stay at the Member State level: it consists of a large chunk of public expenditure and would be best dealt with at the national level - particularly as dealing with health policy on any scale beyond what is necessary to deal with cross border matters and low-level integration logically implies a shift to what would be a high level of social and economic integration (to eliminate inequality of health care between all EU citizens), and there simply isn't the political will or political engagement to support such a project. Banning smoking isn't of this scale necessarily, but it would entail a significant extension of EU law.

The health and taxing policies of Member States when it comes to drugs such as tobacco and alcohol, etc., are very culturally sensitive. There are different drinking and smoking cultures in different states; Ireland was the first EU state to adopt a smoking ban in public places and in the work place, and Sweden and Denmark have high alcohol taxes. If the European Court was to look at the legality of the sale and/or tax collection of these drugs as something the EU and EU law should deal with, it could set precedent for the expansion of EU competences (which could lead to a clash with the German Bundesverfassungsgericht).

I have not been able to read the cases lodged with the Court yet, and they will be very interesting to follow should they be admitted, but on first glance I cannot see anything approaching the radical imposition of a ban being the result. This is for 3 main reasons:
1. I think that the exclusion of harmonisation, and the supporting case law, is strong enough to prevent such extreme judicial activism - it would require too many stretches of judicial imagination and intellectual squaring of circles.
2. A ban, or a ruling that implies that the Court/EU has more rights in this area than would seem to be the case on the face of the Treaties could risk a backlash from the Bundesverfassungsgericht, which has renewed its claim to the right to police the competences of the EU in its ruling on the constitutionality of the Lisbon Treaty.
3. The area is just too radical for judicial activism. Surely the argument that this is a matter for law-makers rather than the judiciary will weigh heavily on how the case, if considered, would be decided. Laws and taxes on drugs are well debated and discussed; how justifiable could it be, for instance, that the European Court could make such decisions on drugs on health grounds, when their place in society is regularly debated in each Member State? What about the liberal drugs laws in the Netherlands? Could the work of public debate and cultural considerations be overturned by the extension of principles established under a radical tobacco ruling?

Again, it will be interesting to see how the court deals with the cases, should it be admitted, and perhaps I'm judging it too much on face value and it will become clearer to me upon a full reading, but I think that the Court would be wise to resist the radical wishes of the anti-smoking campaigners.