Weekend Edition Nº5 by eulawlive

Nº5 FEBRUARY 15

2020

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Interview with Maciej Szpunar, Advocate General of the Court of Justice PAGE

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Brexit – England’s ﬂight from disenchantment and the search for its identity By Aidan O'Neill QC PAGE

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Interview with Maciej Szpunar, Advocate General of the Court of Justice By Daniel Sarmiento

The name of Maciej Szpunar is now inextricably linked to some of the landmark cases on which he advised the Court of Justice of the EU through his Opinions as Advocate General. His advice to the Court in cases like McCarthy, Rendon Marin, Uber, Google, Airbnb or Junqueras Vies, to name but a few, are a stimulating blend of an academic’s search for coherence with the practitioner’s keen eye for solving concrete problems.

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To better understand how this fusion of academic rigour with lawyerly skills took shape, one has to look into the background, and journey Maciej Szpunar went on, prior to his tenure at the Court of Justice: in an interview in his Chambers at the Court of Justice in Luxembourg, I had the privilege of talking to the Advocate General about his professional parcours, and obtained an insight into his Opinions through a better understanding of the man and the lines of thought that underlie them.

The rst part of the interview tracks the Advocate General's evolution as a lawyer, a fascinating account that we are publishing today in EU Law Live’s fth Weekend Edition. In an upcoming podcast, the second part of the interview, in which the Advocate General expresses his views on his role, the Court of Justice’s position as a supreme interpreter and his views on the role of courts, will be available on EU Law Live.

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Daniel Sarmiento: Advocate General, you are a very well-known personality in the European legal community, but your background and your evolution as a lawyer might not be so well-known. You were born in a country that went through a huge constitutional transformation at the time of your youth, a crucial time in which a young person’s plans and ambitions take shape. How do you think that the events that followed 1989 had an impact on your decision to become a lawyer and to devote your professional career to European law? AG Szpunar: Well, if you look at the trajectories of the Members of the Court of Justice of the EU, you can immediately see that we come from completely different backgrounds and different professions. It is true that in comparison to other Members I am one of those who were brought up under a totalitarian regime. This is the case of Members coming from the former Eastern bloc. I started my legal studies in 1990, one year after the changes that came due to the rst partly democratic elections and the victory of the Solidarity Movement. I think that I could draw two conclusions. First of all, and due to the fact that I was brought up under a totalitarian regime, I can see that freedom cannot be taken for granted. Everything we achieved we must appreciate. The second consequence is that as a lawyer, I had a chance to be educated after changes in a democratic country had occurred and my legal education was based on democratic principles of the legal systems and the rule of law. I still remember, however, that when I started my studies some of the textbooks we used were from old communist times. These textbooks included chapters about the unity of the state power (under the totalitarian regime, the State rejected the division of powers) and the leading role of the communist party. As students, we were therefore in a position to compare what things should look like and how they had looked before.

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Daniel Sarmiento: As a young student in Poland in the 90s, how did you and your generation perceive the European Union? Did the EU have any particular inuence in the way you approached your legal studies, or was it still a distant project that had a minimal role in your progression as a lawyer? AG Szpunar: We did not know a lot about European integration. We knew that it existed. But we were not aware of how important EU law was in the process of European integration. As you know, the countries of the former eastern bloc did not recognise the European Communities. We knew that a political creature like the European Communities existed, but we did not know much about EU law. In the 90s, EU law gradually started to be taught in Polish universities. Nevertheless, I must admit that it was only many years later that I discovered to what extent the law was essential for the European integration process.

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Daniel Sarmiento: So how did you come into contact with European law? We had young scholars from Western Europe as guest lecturers who taught us basic notions of European Law. These were not, however, regular courses... I remember, for example, that in the third year of my studies, we had lectures delivered in French, by a French lawyer, about basic notions of the European legal system. Daniel Sarmiento: That was your rst contact with EU Law? Yes, it was my rst contact. It was there where I learned basic notions about EU Law, but I must admit I was not particularly fascinated. At that time my main interest was in private law. And you may ask: why private law? Well, in the totalitarian regime, public law was very much affected by ideology. But that was not the case of private law. Private law had remained neutral.

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Daniel Sarmiento: So the love affair started in Bruges.

Daniel Sarmiento: But nevertheless, you did eventually nd an interest in EU law and also beyond private law.

Yes. That was purely accidental. You started the interview with a reference to the notion of ‘planning your career’. I never planned to be a specialist in EU law, it simply came later and I will tell you exactly how it happened.

Daniel Sarmiento: And after Bruges you started an academic career?

Yes, but things were very different in comparison with the situation of current graduates. There was a huge demand for legal services, and very little supply. After coWhen I graduated, at the end of 1994 and ming back from Bruges I could work for the beginning of 1995, I must admit that, in any faculty of law or I could earn immense comparison to contemporary graduates, I amounts of money in law rms, even when had immense possibilities. I could go to any you compare it to current law rm, I could go into pustandards. It was a period of blic service, I could continue an emerging capitalism that I in education, or I could study heard from my German somewhere else. A friend of At that time, European friends had also happened in mine told me there was a law programme at the College of law was considered like West Germany in the 50s, the law of the moon when there were huge possiEurope. He noted that I spoke bilities. The economy was some French and some Enbooming and the legal marglish, and thought maybe I ket was not very competitishould try it. I was not partive. There were very few law cularly convinced, but I aprms able to offer legal services that would plied. A funny thing is that – for unknown meet the challenges of emerging capitareasons - I was not informed about the relism. sult of the selection procedure. I thought that I had not been admitted. Suddenly, at At that time, I resisted the temptation of the beginning of September, I received a letgoing to a law rm. I did do an internship in ter from Bruges that the preliminary proan international law rm in Warsaw, but I gramme would start in one week. said to myself: “better go to academia”, because that represented my true interest. After a few months I discovered that European Law was a fascinating adventure. I And thus I started to teach private law. My found it surprising, since in my country, at research, however, was mainly focused on that time, European Law was considered lidifferent aspects of EU law. ke the law of the moon. And then, if I can use the term, I fell in love with EU law.

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In 2010, the Ofce merged with the Ministry of Foreign Affairs. But I must admit that I was doing the same job there, although my responsibilities grew a little because I was also responsible for public international law issues, as well as supervising the work of the agents before the European Court of Human Rights.

Daniel Sarmiento: You did your PhD on EU law, on free movement of goods? Indeed, but it had links with private law. It devoted considerable attention to the inuence of fundamental freedoms on conict of law rules. Daniel Sarmiento: Poland joined the EU in 2004 and you were appointed Undersecretary of European Affairs in 2008. Very early on in Poland's membership of the EU, you were at the forefront of EU affairs. What are your main recollections of those early days of Polish membership and organising legal teams from scratch?

During those years as an agent I was denitely a very young person. But from the perspective of the Polish public administration I was one of the oldest, because all of my collaborators were younger than myself. This was typical for the so-called new Member States that joined the EU in 2004. The average age of our members in the public administration was much lower than that of our colleagues from the West.

From the very beginning of my academic career I was operating closely with the Polish Ofce of the Committee for European Integration, a newly established body within the Polish administration responsible for accession negotiations. From the very beginning I advised that committee on different aspects of legal issues of EU integration.

Daniel Sarmiento: From your days as an agent, what do you consider to be the most relevant case or cases you handled? Which cases had a more profound impact in your work and understanding of EU Law? There was a case that came a few weeks after our accession, Poland v Council, concerning the non-publication of some pieces of EU legislation in languages of new Member States. We had only theoretical experience about the Court, and suddenly we were asked to draft an action for annulment against the Council. There was a problem concerning our locus standi. It was a huge challenge. But at the end of the day, even though we did not succeed - because the relevant acts of secondary legislation were not annulled - we were very pleased, because Advocate General Miguel Poiares Madu-

When I nished my habilitation thesis in 2008, it was proposed that I become Undersecretary of State at the ofce of the Committee for European Integration. I was also responsible for the team of Polish agents that would represent Poland before the Court of Justice. My initial scope of responsibilities was devoted to everything that was linked with EU law. I represented Poland before the Court of Justice, but I also dealt with issues pertaining to the implementation of directives, providing advice on compliance with EU law, etc.

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ro admitted that we had a point. This case actually encouraged us to believe that we were also able to participate actively in proceedings before the Court. I think that some years later, in a certain way, that case was indirectly won. In the Skoma-Lux judgment, the Court of Justice conrmed that the EU could not impose obligations on the basis of secondary legislation that had not been translated into the language of the particular country.

regrets about things you did or things that you decided not to do? I think you should not look behind you. When you make a particular decision in your life about your future career, you never know what the consequences will be, and what would have happened if you had taken another decision. So it is difcult to say whether I regret anything. I was always trying to act and make decisions in accordance with my conscience. That would be my principal advice - always act in accordance with your conscience.

Daniel Sarmiento: You have a very successful and comprehensive legal career, and you are an example for any young student aspiring to become an EU lawyer. If you had to give recommendations to a student who wishes to pursue a career in EU law, what would your suggestions be?

Be open to possibilities that might emerge, and be courageous in your decision-making

My own experience says that you cannot really plan your career. I never use the term ‘to plan your career’. First, one should do what one likes, and not think only of nancial gain. I asked myself this question when I came back from Bruges, when many of my friends joined big international law rms and made enormous amounts of money. Secondly, one should be open to possibilities that might emerge, and be courageous in the decision-making. This applies especially to young people. Young people should never be afraid of rising to new challenges. Daniel Sarmiento: And looking retrospectively at your own background, what do you think is missing? Do you have any

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Brexit – England’s ﬂight from disenchantment and the search for its identity By Aidan O'Neill QC

Irish reunication. The fact that Sinn Fein, the main ‘reunionist’ party in and for Ireland, has done so well in the Republic of Ireland’s February 2020 elections, shows that this groundswell is not conned to the north of the island or its nationalist community.

The Brexit referendum in the UK and Gibraltar in June 2016 revealed – and the UK general election in December 2019 conrmed – that England is not a happy country. The voting patterns in both of these polls showed that the English are politically riven in terms of class, educational level, age, and (non-)metropolitan status. They uncovered what was for so long obvious; that London is not in, or of, England. London’s political instincts, economic aspirations and social attitudes are wholly different from so much of the rest of England, the submerged nation whose capital it nominally is. The encircling M25 haloes and isolates London, just as the medieval palisade separated pre-Tudor Dublin from ‘Irish’ Ireland. L’Angleterre profonde now lies beyond the Pale, and London is profoundly out of sympathy and out of step with it.

Meanwhile, Scotland is another country; they do things differently there. Not only did a signicant majority of the voters in Scotland vote for the UK to remain in the EU at the referendum, but in December 2019 the Scottish National Party (SNP) campaign’s slogan was simply “Stop Brexit”, and they gained signicantly in votes and seats in the UK Parliament. Meanwhile, the most recent opinion polls show that in Scotland support for remaining in the EU has increased since the Brexit referendum, and that there is now a slim majority of voters in favour of Scottish independence. This increase is largely attributable to remain voters who had previously voted against Scottish independence in the 2014 independence referendum to ensure (as promised) Scotland’s continuing place in the European Union, shifting their position. In general Scottish voters do not express England’s concerns over the free movement of people (perhaps because Scotland remains a country which is more characterised by the emigration of its native-born, often taking the high road that

England is not a happy country

In making special provision, even after the island of Great Britain ceases to form part of the customs territory of the European Union, for Northern Ireland to be treated as if it continues in the customs territory of the European Union and to maintain frictionless borderfree trade with the rest of the island of Ireland, the Brexit Withdrawal Agreement has undoubtedly given new impetus to the idea of

1. Aidan O’Neill QC is an advocate, barrister, and Queen's Counsel at both the Scottish and English bars..

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It is notable that among the biggest publisleads to England (the ‘noblest prospect for a hing successes in Britain in recent years has Scotchman’ as Dr (Samuel) Johnson had it) been Hilary Mantel trilogy of novels about rather than by large scale inuxes of other Thomas Cromwell, special adviser to Henry European free movers seeking work north of VIII and principal architect of the English the border. Neither does there appear to be church’s break from Rome in the Reformaan issue with the idea of being a rule-taker tion. She writes, of course, of a period when from a bureaucracy and legislature based a Welsh usurping family, the Tudors, had seioutside the country. Three hundred years of zed the English throne. After providing for rule from London was perhaps good the ‘country or dominion and principality of psychological preparation for 50 years of ruWales’ to be ‘wholly incorporated, united le from Brussels. And, nally, being part of and annexed into the realm of England’, this the European Union does not seem to trigger (ultimately dead-end) dynasty ruled the land any form of identity crisis among Scots, who for 100 years, over just three had perhaps the good fortune generations. This was at a tiof having the distinctive geme before England had acquiniuses of Robert Burns, Walred an overseas Empire; when ter Scott and Prince Albert, to People want to show it stood alone against the maallow distinctively romantic Scottish identity - marked by they are not ashamed chinations of the great powers of continental Europe - Spain, and marketed as kilts and tarof being English France, the Holy Roman tan, haggis and porridge, waEmpire, and the Church of Roter and whisky, islands and me; and before any union mountains – to be invented with Scotland or Ireland, its and encouraged within the unruly neighbours in the Anglo –Celtic context of political unionism. Archipelago. But where is the romance in being English ? This period may be said to mark the last of The June 2016 Brexit referendum result and ‘olde England’. The English crown was, in the victory of the Tory Party in the Decem1603, inherited by the ruling Scottish ber 2019 could also be seen to be another exdynasty, the Stuarts, and united with that of pression of an anxiety about England and Scotland. A century later in 1707, the ParEnglishness. There seems to be a semi- or liamentary Union between England and subconscious desire for somewhere and soScotland while ensuring the demehow to express a respectable – that is, not politicisation of Scotland, put into place mearacist or semi-fascist – English nationalism. sures intended to protect - and indeed to People want to show they are not ashamed of strengthen - other aspects of Scotland’s disbeing English, that Englishness is not captutinctive continuing nationhood: notably its red in images of drunken football fans riodistinct and distinctive legal, ecclesiastical ting abroad. What the Brexit referendum beand educational systems. came was a form of displacement activity, a chance for the English voters to afrm their The other great publishing success in Britain Englishness by stating that they were nothas been Phillip Pullman’s Dark Materials, European.

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A vote in favour of Brexit means ultimately that England leaves not just the European Union but that it repudiates the British union

Looking back on the Brexit vote, future historians may well conclude that the postWWII United Kingdom of Great Britain and Northern Ireland was, like Belgium, held together by the European Union. Flanders and Wallonia dare not split into independent countries (despite decades of mutual antipathy and non-co-operation) because neither wishes to lose Brussels as its capital. But London does not hold the UK together. So I think the former Prime Minister Sir John Major, is right: a vote in favour of Brexit means ultimately that England leaves not just the European Union but that it repudiates the British union. Stands England where it did? Alas, poor country, almost afraid to know itself.

a series of novels which imagines an alternative past for England and for Europe, in which the reformation resulted in a move of a reformed papacy to Geneva with John Calvin as its head and no resultant break by England from mainland Europe. The result is, however, that the good and proper governance of England is undermined by agents of the supra-national Geneva Magisterium, acting for or in collusion with sinister foreign born black clad clerics – the invading or inveigling Jesuits of Elizabethan imagination – who are in the business of stealing children’s souls. Quite why a series of novels about an opportunistic multiply-married philandering ruler assisted by a sociopathic political genius to break from Europe (such as Hillary Mantel’s’ book speak) or of Phillip Pullman’s account of the battle for the soul of the nation and its children against a cruel and heartless supra-national European bureaucracy should so have captured England’s imagination at this time, is anyone’s guess.

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News Highlights 10-16 February 2020

CJEU question on taxation of provision of medicinal products subject to statutory health insurance schemes

CJEU to decide on the scope and purposes of EU rules on the approval of motor vehicles

Monday 10 February

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Through three preliminary references (C-759/19, C808/19, and C-809/19), the Regional Court of Gera, Germany, asked the CJEU for clarication of the meaning of certain provisions of Directive 2007/46/EC and of Regulation 715/2007 regarding the approval of motor vehicles.

In Company Z v Tax Ofce Y (C-802/19), the German Federal Finance Court made a preliminary reference request on whether a pharmacy which supplies medicinal products to a statutory health insurance fund is entitled to reduce the taxable amount as a result of a discount granted to the persons insured under a health insurance scheme.

ECtHR identiﬁes ﬂaws in the effectiveness of constitutional redress proceedings in Malta

Citizens’ Initiative on Common Commercial Policy and international law compliance reaches the General Court

Tuesday 11 February Monday 10 February

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In the cases of Marshall and Others v. Malta and Galea and Pavia v. Malta, the European Court of Human Rights found there had been violations of Articles 6(1) and 13 ECHR because of the unjustied excessive length of proceedings and because of the low amount of compensation granted.

The promoters of the initiative ‘Ensuring Common Commercial Policy conformity with EU Treaties and compliance with international law’ launched legal proceedings against the Commission’s Decision that the initiative manifestly fell outside the framework of the Commission’s powers to submit a legal act.

HSBC bring an appeal before the CJEU

Open letter calling for live-streamed hearings at CJEU

Tuesday 4 February

Tuesday 11 February

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An appeal brought by HSBC Holdings plc, HSBC Bank plc, and HSBC France against the judgment of the General Court in T-105/17, HSBC Holdings plc and Others v Commission (C-883/19 P) was published in the Ofcial Journal.

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In an open letter published on the eve of the Google and Alphabet v Commission hearing (T-612/17), Alberto Alemanno and Nicholas Petit call on the President of the Court of Justice of the EU to enact measures to allow the live streaming of hearings in cases before the EU courts. Read more on EU Law Live

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Human rights failures lead to partial withdrawal of Cambodia’s preferential access to EU market Wednesday 12 February

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The European Commission decided to withdraw some of the tariff preferences granted to Cambodia, on the grounds of serious and systematic violations of human rights committed by it.

European Parliament grants consent to EU-Vietnam Trade and Investment Agreement Wednesday 12 February

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The European Parliament has voted on the Agreements signed by the EU and Vietnam, granting its consent with a favourable vote of 401-192.

Hearing in Google and Alphabet v Commission Wednesday 12 February

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The Court of Justice of the EU started a three-day hearing in the case brought by Google and its parent company Alphabet seeking an annulment action of a Commission Decision, which found that Google and Alphabet had abused their dominant position in breach of EU competition law rules, (T-612/17), and published a report on it.

Commission refers ﬁrst Reasoned Opinion to UK after Brexit Wednesday 12 February

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The Commission issued a Reasoned Opinion to the UK, for failure to comply with the Eurovignette Directive (1999/62) on road charging for heavy goods vehicles. The UK has two months to notify the Commission of how it is complying or will comply with the Directive.

European Parliament passes resolution on ECB policies Wednesday 12 February

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Following Tuesday’s debate with the European Central Bank’s (ECB) President Christine Lagarde, the European Parliament approved a resolution on the ECB’s Annual Report for 2018, setting out the Parliament’s priorities on ECB future policies.

ECtHR’s Grand Chamber quashes 2017 Chamber judgment and supports Spanish system of immediate returns in Melilla Thursday 13 February

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The Grand Chamber of the European Court of Human Rights delivered its judgment in N.D. and N.T. v. Spain (application nos. 8675/15 and 8697/15), in which it departed from the previous Chamber’s judgment and held, unanimously, that Spain did not violate Article 4 of Protocol No. 4 or Article 13 ECHR.

AG advises a broad interpretation of ‘working time’ and recalls the principle of primacy for national courts

New Practice Directions to parties before the CJEU

Thursday 13 February

Friday 14 February

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Advocate General Pitruzzella delivered his Opinion in XR v Dopravní podnik hl.m. Prahy a.s. (C-107/19), a case on the interpretation of the Working Time Directive and on the ability of a rst instance court to depart from binding opinions of higher courts when such opinions conict with EU law.

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The new Practice Directions to Parties concerning cases brought before the Court, adopted by the Court of Justice of the EU on the basis of Article 208 of its Rules of Procedure, were published.

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This Week's Analyses & Op-Eds Exploring the nature and scope of Article 18 TFEU: Opinion of AG Bobek in ‘Defective breast implants’ case By Nicole Lazzerini

Advocate General’s Opinion on Italian rules regulating cooperative banks By Laura Wissink

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Analysis of Advocate General Hogan’s Opinion, ‘a rather straightforward and a correct analysis of the relevant prudential EU rules’, in Adusef and Others, C686/18. The Court of Justice is asked whether national measures which imposed an asset threshold on cooperative banks, and concerning shareholder redemption rights are compatible with EU rules on prudential supervision for credit institutions, free movement, and State aid.

Analysis of the Opinion of Advocate General Bobek in C-581/18. Defective breast implants were manufactured by a French company, which was required to have insurance allowing third parties to bring a direct claim: the insurance contract in question territorially limited damages to France. The AG considered the nature and scope of the prohibition of discrimination on grounds of nationality in Article 18 TFEU, in the context of a request as to whether that provision can apply horizontally between the appellant and the insurer.

The Commission reviews the EU’s economic governance: There is time to reﬂect and time to act

The Kolev saga and yet another clash of national courts over EU law By Daniel Sarmiento

By Napoleon Xanthoulis

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Editorial Opinion by Napoleon Xanthoulis on the reform of the Economic Monetary Union, discussing the Commission´s key ndings in its review of the EU´s economic governance framework.

Daniel Sarmiento gives us his view on the Court of Justice’s judgment of Wednesday 12 February, in Kolev (C704/18), an answer to the referring Bulgarian court’s question: ‘Must Article 267 TFEU be interpreted as authorising a national court not to apply a preliminary ruling in the main proceedings with regard to which it was issued in reliance on the factual circumstances taken into account by the Court when it gave the preliminary ruling?’.

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Library - Book Review DIMITRY KOCHENOV

By Sara Iglesias Sánchez

The MIT Press Essential Knowledge series. 344 pp.

Citizenship

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Sara Iglesias Sánchez reviews the book ‘Citizenship’ by Dimitry Kochenov, on ‘one of the most complex and difcult subjects from the point of view of law and political theory’, and gives her account of a book that ‘narrates how citizenship has historically been a vehicle of sexism and subjugation of women, how citizenship has played out in the hands of different governments as a tool of political control and how the rules on granting and withdrawing citizenship have traditionally been not only politically motivated but also often openly racist’.

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