Kücükdeveci - A European case

If you believe the comments of bloggers from all over Europe, the Kücükdeveci case (C-555/07) in front of the European Court of Justice might have been both, another milestone in the legal primacy of EU law over national law and a precedent for the importance of the Charta of Fundamental Rights after the ratification of the Lisbon Treaty.

The case in itself is already a European case with a lot of European topics:

Seda Kücükdeveci, a German citizen (apparently a (Turkish) immigration background) in her twenties has been dismissed (youth unemployment) by a company that calls itself a European supplier (internal market) of communication materials. She has been going to court because she claims that the conditions of her dismissal were discriminatory (anti-discrimination).

Funny enough, the discrimination did not come on grounds of her gender or her immigrant background, but based on her age, based on the fact that she was younger than 26.

According to German law, her employer was right, according to EU law, the conditions were discriminatory, so the EU court found that:

"[T]he principle of non-discrimination on grounds of age as given expression by Directive 2000/78, must be interpreted as precluding national legislation"

and the judges went even further and became more clear:

"By reason of the principle of the primacy of European Union law, which extends also to the principle of non-discrimination on grounds of age, contrary national legislation which falls within the scope of European Union law must be disapplied"

But the case is not only a European case because it involves the EU court and European legal principles, it is also dealt with by European and national bloggers from different member states.

The main players are the bloggers from Adjudicating Europe who did not only pre-warn readers that an important ruling was about to come up - which prompted a direct reaction by the German Verfassungsblog - but they also follow-up with a brilliant series of articles discussing the effects as well as the pros and cons of the ruling:

Blogger Eurostein concludes in his article "Mangold II":

"I am afraid Kücükdeveci is Mangold II: an even bolder, but simultaneously also more porously argued decision. At least for me this is not the right way of redefining the very fundamentals of EU law. Just wait and see."

Pescatories, referring to the fact that the Court used the Charta of Fundamental Rights for his reasoning although the case is pre-Lisbon underlines in his article "Making History, Making Law":

"[T]he Court has interpreted that Lisbon has reinforced its authority in a way that it has never enjoyed in the past. After all, a Charter of fundamental rights is not the ordinary type of thing you run into every day.

Maybe the Charter is a momentous text that has given the Court the will and drive to legitimize its decision-making process and reinforce thus its judgments. And if so, the Court can not afford to simply look towards the future. In that circumstance, the Court MUST apply the Charter even when the cases are coming from the distant (and not so distant) past."

and he ends his post with the bold statement

Long live Kücükdeveci. And long live (very long, please) the European Court of Justice.

And in the third post of the series titled "In Defence of Paragraph 22", Cartesio also underlines the new importance of the Charta of Fundamental Rights in the EU's legal system:

"We have now the Kücükdeveci scenario in which a national horizontal situation fall within the scope of EU law when a non-implemented Directive contains a general principle/ EU fundamental rights. This is very far-reaching…. Kücükdeveci will be both hated and glorified…"

The bloggers from EU Law (Typepad), who link to the three articles mentioned above, summarise the ruling, starting from the conclusion that

"The Court of Justice has handed down a major judgment on the horizontal direct effect of directives."

and also Bulgarian euroblogger Viharg in his blog EU Law (Wordpress) finds that

"[t]his is really interesting, because the ECJ actually says that any directive can “give expression” to a general principle of EU law, and thus have horizontal direct effect."
(there is also a Bulgarian version of the article)

At the bloggers of The European Journal, Margarida took the time to write an extensive article about the case, highlighting that

"[t]his is another example of the ECJ expanding the scope of EU law.

In this case, a Directive giving expression to a general principle of EU law, prohibition of discrimination on the grounds of age, applies to a national horizontal situation binding not only the Member States but also individuals and due to the primacy doctrine national courts must not apply the national provision contrary to the general principle as expressed in the directive.

Hence, the provisions of directives expressing general principles of European Union law have full direct effect, even in horizontal situations."

As I have noted short after the ruling was published some weeks ago, Verfassungsblog predicted that this ruling will cause an "arms race" between the German Constitutional Court and the European Court of Justice. The seriousness of this argument is taken up by the Kartellblog, checking how the case of Kücükdeveci could effect cartel adjudication.

Other German blogs, like Das letzte Wort have critically noted that Kücükdeveci is another example of the idiosyncratic jurisprudence of the EU court. Michael Rahe in his blog also seems to be mildly critical, putting the case into the context of the rather negative perception of the Mangold II case.

But the case has not only been noticed by eurobloggers and German bloggers, but also received notice in the Dutch Belgian Sociaalrecht Blog as well as in the Romanian Antidiscriminare Blog. The Eurosceptic UK blogger The Boiling Frog doesn't "hold much hope" that the German Constitutional Court will be able to withstand the European court's powers. And the discussions at Adjudicating Europe and European Union Law summarised earlier are even noted in the Hungarian blog Jogvélemény.

French blog Combats pour les droit de l'homme also published a short article on the case, and in a post by the Journal du Marché Intérieur there is an interesting comment by Romain who challenges all those who see this case as an example of "direct effect" of EU law, claiming that it is "just" an example of the primacy of EU law:

"De mon point de vue, cet arrêt reconnaitrait plutôt l'invocabilité d'exclusion d'un directive dans un litige entre particuliers. Il n'est absolument pas certain qu'il soit question ici d'effet direct. Le principal apport serait alors que la Cour généralise l'hypothèse posée dans son arrêt Unilever s'agissant de "l'effet procédural" des directives. Il s'agirait alors d'une preuve supplémentaire de la distinction entre effet direct et invocabilité..."

So we have European and national blog reactions (plus the comments to all these posts) from more than eight countries on a case that is European in content and European in scope - a strong example of an emerging European public sphere and the existence of a European blogosphere as well!

Update: Magdalena from ECJ Watch published an article on Kücükdeveci this evening and, as many others, she shares the view that this case is exceptional:

"Kucukvedeci is about so much more than age disrimination. It is also about the effect of directives containing fundamental principles of EU law [...]. As we know, directives do not have horizontal direct effects. Or do they now? Here we are dealing with a Directive establishing a Fundamenal Principle of EU law, and this one WAS HELD TO BE DIRECTLY EFFECTIVE IN A HORIZONTAL SITUATION!"

That was more than explicit...!

Update 2: The Blog aproximativ juridic continues the debate, putting Kücükdeveci and the idea of direct effect into the Romanian legal context.

Update 3: Via @vihargg I found this comment on the case in the German Law Journal.

Update 4: Humanrights.ie discusses the effects of the Kücükdeveci case on the legal impact of the Charta of Fundamental Rights.

The EU in German blogs (10): EU debates health policy - and nobody notices

The well-known German health politics blogger strappato just published an article titled "Die EU debattiert unbemerkt über Gesundheitspolitik" (English: "EU debates health policy - and nobody notices") in which he criticises a recent public consultation by DG SANCO that remained almost unseen by a wider public.

Strappato was so kind to allow me to translate the integral post and to publish it here on my blog:

The influence of the EU on health policies is underestimated. Not even the recent debates on controversial initiatives like the strengthening of patient rights in cross-border health care or the maceration of the ban on advertisement for pharmaceutical products have been noticed by the public or the media.

Hence, it is no surprise that the EU [Commission] Directorate-General Health and Consumers (DG SANCO) invited to contact the administration in several online fora without being noticed. The occasion: The tenth anniversary of DG SANCO. From 14 September to 9 October, European citizens could use the opportunity to raise their voice in their own languages to address consumer and health policies and to share their views with others, according to the goals formulated.

The response rate was far from overwhelming. In the German forum only eight posts are losing themselves. And not much difference in the other official EU languages. Only the English forum was more lively.

The communication deficit, however, is on the side of the initiators. Established without proper public relation activities, for a too short time period, without moderation. The EU Commission has shown how much she appreciates the participation of citizens. And the announcement that five participants of the "European debate" were to be invited to a seminar together with Commissioners and former Commissioners for health and consumers on 23 October 2009 in Brussels seemed helpless.

Travel and accommodation costs were paid by the EU Commission. A press release on the event? Nothing so far.

Did anyone of you notice this "debate" or the event with citizens? I haven't heard anything about it...

The EU in German blogs (9): Leak of Swedish Presidency draft of Stockholm Programme (updated)

----------------------------------------
UPDATE (16 October 2009, 17:45): About 24h after netzpolitik.org informed about the leak, and some 15 hours after this blog post was published, the Swedish EU-Council Presidency announced via Twitter that they had made their draft of the Stockholm Programme public.

Here is the webpage with the announcement and here is the official document.
----------------------------------------

In general, the German blogosphere is swinging between apolitical nothingness and overpoliticised commentaries, but it lacks a sense of investigative or analytical blogging that would fill the gaps left by classical media outlets.

And there is even less relevant content on EU-related subjects, not to speak of "news".

But yesterday, the most important German blog, netzpolitik.org, helped to inform about the leak of the latest Swedish EU-Council Presidency draft of the Stockholm Programme (own translation; 1 link added, 1 link adapted):

"We had just reported about it, and now a current version of the Stockholm Programme has been leaked from the negotiations in the EU Council of Ministers. Here is the PDF [and here a better version; JF].

The document dealing with internal security in the EU between 2010 and 2014 is the basis for the decision of the Justice and Home Affairs Council at the end of November and of the European Council at the beginning of December.

It would be nice if someone could produce a synopsis where one could easily see the differences to the first version issued by the Commission in June. In other words: Who could make a diff?"

Thanks a lot to netzpolitik.org for spreading the news!

Maybe some of the European readers will find this document - and also others provided by Statewatch.org - helpful to prevent our governments and the EU administration from making our Union a place where state security and fear dominate over freedom and the rights of citizens (or of any human being staying within our borders).

The EU in German blogs (8): The priorities of the Greens in the European Parliament

New MEP Ska Keller reports about the discussions around the priorities of the Greens in the European Parliament as well as about her own priority (own translation; links added):

"Last week there was a meeting of the group in which the priorities for the group for the next year were discussed. It's just the first reading, and I ask myself how the board will bring together all the different (good) proposals. There are just too many huge problems that are all important, but there is no sense in putting up 20 priorities at once.

Jan and I are already planning to work mainly on the Stockholm Programme during this year. [...]"

The EU in German blogs (7): EU-US payment data exchange

Last Tuesday, the most important German blog Netzpolitik published a very critical article on the recent Council EU-US payment data exchange guidelines that - very simplified - would allow the US Treasury Department to continue to access bank transfer data of EU citizens in the fight against terrorism.

The decision is put in the context of the so-called Stockholm Programme, the EU's Justice and Home Affairs programme for 2010-14, which is also criticised by the author.

The article is a good example of well-done national reporting on EU politics, using hyperlinks to European and national sources, including Council Presidency press releases and original Commission proposals. This allows a wider audience to understand the whole story without going into all details within the article, thus leaving room for those of us who are interested in the details - just as I argued recently.

It is also putting the right attention to the EU-level dimension of the problem, while still linking it to the national debate.

If this would be the standard on EU reporting, we'd be much better off!

Also on this topic: Planet in Progress (ZEIT), Krüdewagen

The EU in German blogs (6): A slap in the face of Silvana Koch-Mehrin

Der Spiegelfechter wrote in his article "A slap in the face of the FDP showgirl" on the election result of Silvana Koch-Mehrin during the EP bureau elections (own translation):

"There is room for 14 vice presidents in the European Parliament - this year, there were 15 candidates for this rather unimportant honorary post. So one of the 15 candidates had to miss out.

Admittedly, this over-supply of candidates wasn't planned - in the last moment the British MEP McMillan-Scott used the opportunity to run as an additional candidate for the eurosceptic ECR. Thereby, he expressed his protest against the British Tories who were participating in this group for the first time.

In the first round, Silvana Koch-Mehrin received only 148 of 683 votes - by far the worst of all results and thus a resounding slap in the face of the blonde hope. In the second round, Koch-Mehrin also received the worst of all results. In the third and last round it was finally all about whether Koch-Mehrin or the eurosceptic, far-right Michał Kamiński would fail - and Koch-Mehrin, by the skin of her teeth, could capture penultimate place.

This result is a clear vote of the MEPs against the liberal showgirl."

Since major German news services like Spiegel.de or Sueddeutsche.de are reporting on this catastrophic result for Ms Koch-Mehrin, I expect more German blogs to report about it tomorrow.

I will add their links to this post as soon as I see them.

Here we go: Robin Haseler, mediaclinique, Ruhrbarone.

The EU in German blogs (5): Internet filters in China and Germany - updated

A considerable number of German blogs like knick.knack, Lars Heise, Feistes Ding, Addliss, P-Pricken, Nicht Spurlos, Blogwürdig, The Archangel, Rappelsnut, Windflüchter, Kamikaze-Demokratie, uebergeek, schongehoert, and also the most important and influential German blog Netzpolitik have reacted to a statement by EU Commissioner Viviane Reding against internet filters in China.

If they don't cite netzpolitik.org, they all refer to a news article at a German radio station published 4.30 pm yesterday. I don't think that this is not the original, since a German AFP press release with the same content came out earlier. But why checking sources when it comes to EU politics?

In fact, I was unable to find this statement on the press overview of the Commissioner herself, so it is quite hard to verify in which context it has been said. EUobserver had the statement yesterday morning, but quoting Martin Selmayr from the DG Communication.

The reason why the German blogosphere is sarcastically reacting to this statement is that the German parliament just passed a law to charge the Federal Criminal Police Office to centrally filter child porn pages.

This legislative proposal (the story in English) has led to the largest reaction of the German internet community ever, unsuccessfully trying to prevent the installation of censorship mechanisms (which also proved to be ineffective against the diffusion of child pornography) by the German legislator.

The non-responsiveness of the governing parties (Christian Democrats and Social Democrats) to the concerns of hundreds of thousands who reacted online and offline is likely to cost them many votes of the "internet generation" at the parliamentary elections in September, possibly even strengthening the German Pirate Party.

Having the EU Commission react to China but not to Germany therefore sounded rather ridiculous in the ears of German bloggers

See also: Dyrathror

The EU in German blogs (4): Lobby register celebrates 1st birthday

LobbyControl "celebrates" the first birthday of the Commission's lobby register (own translation):

"The lobby register of the European Commission celebrates its first birthday today. The Commission used this occasion to draw some first conclusions - a complete analysis is due to follow in July. Yesterday, the responsible director Jens Nymand Christensen declared the voluntary approach a success because the number of registrations was steadily increasing. Thus, there would be no need for an obligatory register.

This assessment can not be held up at a closer look as our study that we publish together with Alter-EU and some newer figures prove:

There are 1,604 lobby groups registered by now. Only 625 of those actually have an office in Brussels. Many of the associations registered are totally irrelevant for the lobby register because they are not based in Brussels and dispose only of minimal lobby budgets. If we use the estimations of the European Parliament that 2,600 lobby groups have their seat and an office in Brussels, only 24% have registered themselves until today. [...]

Speaking about of the register under these conditions is not a sign of an objective perspective. The register is and remains the unloved child of the Brussels lobby scene. Law firms and think tanks refuse completely to accept it. They have boycotted the lobby register from the very beginning. [...]

[...]"

Looks like the register has still a long way to go...

The EU in German blogs (3): Debut in Brussels

Franziska "Ska" Keller is a young newly elected Green MEP from Germany (I already covered her some time ago).

In her blog she reports about her first days in Brussels (own translation):

"Becoming an MEP is like marrying: you don't feel much different afterwards than you felt before. Despite the fact that from now on one has to care for committees and offices, taxes and insurances.

Last week we had the first group meeting in Brussels. Before we had to go through a show-jumping course of information desks, badge presentations, photo shootings etc. Next week we will get our committees and delegations (after day-long negotiations about who gets what), we will be able to hire our assistants (no more applications, please, I am already taken!), set up our offices and sit in trains for many many hours.

On July, 14th the Parliament will constitute itself officially in Strasbourg. Whether we will have to vote for - or against - Barroso at the same time is not sure yet.

By the way, the youngest Green MEP's name is Emilie, she is 25 and comes from Denmark. The next one is Jan [Philipp Albrecht; JF], 26, from Lower Saxony [Germany; JF]. Only then come Karima from France and me, both 27."

I am really looking forward for her continuing reports about her "debut" in Brussels...!

The EU in German blogs (2): Co-operation in police & justice matters

Under the title (translated)

"Bundestag: Police from EU member states will be allowed to use guns in Germany"

author Daniel Neun of the Radio Utopie blog covers a number of matters now implemented into German law by the German parliament (the Bundestag) in the field of justice and policy co-operation.

Based on the Prüm Convention, the EU justice ministers had agreed in late 2007 to extend co-operation, e.g. in the exchange of data (e.g. in the context of EUROPOL) or the co-operation during large events, which now has to be introduced into national legal systems.

The article is extremely critical of most of these measures and sees the extension of transborder and intra-state competencies of national and supranational police authorities as a threat to human rights and democracy, widely unnoticed by the national press and political parties.

(via Duckhome)

The EU in German blogs (1): The light bulb ban

Yesterday, the German blog Duckhome published a longer article on the EU's light bulb ban.

The blogger is asking for active resistance by citizens against the goals of the directive by buying large stocks of old-fashioned light bulbs before they will be forbidden from September (i.e. the first category of high energy light bulbs):

In her kindliness, the EU that regulates everything from salad cucumber curvature to the size of condoms in the best bureaucratic manner, has decided to do something nice for the European producers of energy saving lamps. [...]

Her calculations on energy saving are absolute horseplay since the life expectancy is limited to two years, which makes these lamps very expensive, and in addition you can expect that their illegal disposal will bring a lot of mercury into the environment. [...]

But this time it is simple for the citizen. You can resist. Those who are clever buy a five year stock of 100 watt light bulbs and do the same in 2011 with other kinds of light bulbs. This is an manageable investment, and light bulbs, different to pears, do not lose value if stocked.

(own translation)

The (known) arguments brought forward by Duckhome are that a) the energy savings are only minor and that b) in the near future LEDs will become affordable and can thus replace the unnecessary switch to classical energy saving lamps.

This is the first example of the image of the EU on the national level: A regulator of little details which are already antiquated as soon as the regulation is in place.

Related articles of mine:

• 29 August 2009: The light bulb ban rage - just a symptom of the EU communication disaster

The EU in German blogs - New series

One of the lessons I have learned over the last twelve months and through these European Parliament elections:

We will have to foster transnational communication on European issues in order to create a European public sphere!

I will therefore start monitoring German blogs to see if and how they treat European issues. This will become a new series on Julien Frisch - Watching Europe titled

"The EU in German blogs"

As far as possible, I will also comment on those issues in German blogs in order to create argumentative links to European discussions or realities.

The Euroblogosphere has to become a hub for the wider European blogosphere instead of being a separate group of bloggers - and if we manage to do so, we will win as much the national blogospheres!