European Union Law Briefing - May 2019

Eoin Molloy (Content Editor) Ireland

May 15, 2019

Request for preliminary ruling as to whether prosecutor is a ‘judicial authority’

On 4 February 2019, Donnelly J on behalf of the High Court lodged a request for a preliminary ruling pursuant to Article 267 TFEU, to clear up issues which had arisen in the ongoing case of Minister for Justice, Equality and Law Reform v Cornea.

At issue here is the question of whether or not a public prosecutor, in this instance one based in the town of Zwickau in Saxony, could be considered a ‘judicial authority’ for the purpose of Article 6(1) of the Council Framework Decision of 13 June 2002, which provides that only designated competent bodies may issue European Arrest Warrants.

Section 2 of the European Arrest Warrant Act 2003 defines a judicial authority as meaning: ‘The judge, magistrate or other person authorised under the law of the Member State concerned to perform functions the same as or similar to those performed under s 33 by a court in the State’.

Section 16 of this Act further provides that: ‘Where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent under s 15(9), the High Court may, upon such date as is fixed under s 13, make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him…’

The respondent, who it should be noted will remain in custody pending the ruling, is sought by the German authorities on foot of an EAW issued on 15 March 2018 for the purposes of investigating seven potential offences of organised or armed robbery. The maximum sentence faced by the respondent is 10 years. 

In support of their argument that the German prosecutor is not a judicial authority within the meaning of the Framework Decision, the respondent adduced expert evidence from one Professor Dr Hans-Walter Forkel – a qualified German lawyer holding a master’s degree in EU law from the University of London.

In his affidavit, Dr Forkel contends that the prosecutor in this case does not enjoy the sense of ‘autonomy’ that would be required to be considered ‘part of the judicial corps in Germany’. Indeed, a similar contention was made in expert evidence given by Dr Forkel in the case of Minister for Justice and Equality v Dunauskis. However, due to a divergence in judicial opinion in this case between the superior courts, Donnelly J opted to refer once more on similar grounds. The case, and the questions referred, can be accessed in full here.

 

‘We are obliged to confront enduring and complex Brexit issues’ – Hogan

In an article published in the February 2019 edition of The Bar Review, Bloomsbury author and Advocate General at the Court of Justice of the European Union, Gerard Hogan, offers a broad lens view of the future of the common law system in Europe post-Brexit.

In this article, entitled ‘Laws in Common?’, AG Hogan opens by discussing the present position of common law within the EU, remarking that ‘the last 60 or so years of the new legal order has not changed the fabric of the 28 legal systems’… which to this day remain ‘recognisably either common or civil law jurisdictions’.

As Hogan explains, the common law is characterised by sparing legislative intervention in ‘key areas of private law’ – whereas civil law is primarily concerned with codified statute. That said, he identifies areas of overlap, ie the Succession Act 1965 and the Occupiers’ Liability Act 1995.

In pointing out these areas of common-code overlap, previously dominated by judge-made law, where the common law functions smoothly, AG Hogan proves that a clean-cut distinction is not strictly necessary to the maintenance of a functioning judicial system. Moreover, he remarks that: ‘At the same time the civil law jurisdictions have taken on more of the characteristics of the common law, with greater attention being paid to earlier court decisions’.

Hogan then goes on to discuss the opinion of AG Kokott in Commission v Ireland, whereby the ‘civilian distaste’ for judge-made law was revealed. In this opinion, AG Kokott contended that Ord 84A r 4 of the Rules of the Superior Courts, which concerns the time limits for challenges to public tendering decisions, undermined a European directive which sought to allow contracting parties to effectively review decisions by affording too much discretion to judges.

The potential benefits of the disentanglement of the UK from the EU were explored at length in Chief Justice Frank Clarke’s September 2018 address delivered at Fordham University entitled, ‘Ireland as a Common Law Port After Brexit’. Chief amongst these was the potential for Ireland to become an international hub for high-value commercial arbitration. However, this would not be possible if we do not maintain our ties to the common law system.

The obvious implication is that in the future, without the deterring effect that is the presence of the largest common law jurisdiction within the EU, efforts to harmonise Europe towards a more civilian conception of law are likely to be more successful. As Hogan notes, without the UK, further proposals to bring in a codified version of contract law across the European Union will arise through the new version of Common European Sales Law. As such, this could then extend to other areas of private law like tort – to the point where common law is all but extinguished.

 

Google fined for abuse of dominant position

Following hot on the heels of CNIL’s decision to fine Google €50m for data protection breaches, the Dublin-based tech giant were on 20 March fined once again – this time by the European Commission – for abuse of a dominant position pursuant to Article 102 TFEU.

According to Murdoch and Hunt’s Encyclopedia of Irish Law: ‘Dominance in EC law is a position of strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and ultimately of the consumers.’

Key to the commission’s decision was the fact that Google has at times held over 90% of the market share in many of the EEA countries it operates in. The decision to fine Google €1.49bn, amounting to just about 1% of global turnover of 2018, is far from an insignificant amount, especially given how heavily Google have invested in hardware and personnel over the past few years. This follows on from a €2.42bn fine in June 2017 and a €4.34bn fine in July 2018, which have been discussed at greater length in this article by ComputerWeekly.com.

 

New title: Constitutional Law of the EU’s Common Foreign and Security Policy (Hart)

Hart Publishing, an imprint of Bloomsbury Publishing have just commissioned a new European Union law title, Constitutional Law of the EU’s Common Foreign and Security Policy: Competence and Institutions in External Relations.

Written by Graham Butler, Associate Professor of Law at Aarhus University, this book is the first to be dedicated exclusively to the oft-overlooked area of CFSP. The author explores how the legal framework for EU foreign affairs can be adapted to a changing world so as to ensure that the EU treaties can cater for a more assertive Europe on the world stage.

The book is scheduled for release in October and can be pre-ordered here.

 

 

This briefing is for general interest only and has been compiled using secondary sources, which have been acknowledged throughout. This briefing should not be regarded as a substitute for professional advice.