Id-Dritt XXVIII - Volume 2

ID - DRITT volume xxviii

2018 Published by Għaqda Studenti tal-Liġi

Produced and published by Għaqda Studenti tal-Liġi (GħSL), the University of Malta’s Law Students’ Society.

Correspondence in relation to this publication should be forwarded to: The Publications Officer / Editor-In Chief, Id-Dritt Room 219, GħSL Office Faculty of Laws University of Malta Msida, Malta or Email us at: publications@għsl.org © Għaqda Studenti tal-Liġi 2018 All Rights Reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of the copyright holder and the publisher, application for which shall be made to the publisher.

Proofreading and editing done by the Editorial Board and the Publications Office. Some articles have been modified for reasons of clarity and/or uniformity.

Opinions expressed in Id-Dritt Volume XXVIII do not necessarily represent the views of the Editorial Board, the Publications Office, the Publications Officer, or Għaqda Studenti tal-Liġi.

Printed in Malta by Progress Press Co. Ltd Żona Industrijali, Triq L-Intornjatur, Mrieħel, BKR 3000, Malta Cover and Publication Design by Matthew Charles Zammit ISBN no: 978-99957-857-7-2

Opening Address Matthew Charles Zammit Publications Officer, GħSL

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O

n behalf of the GħSL Executive Board, the Publications Committee and the Id-Dritt Editorial Board, it is a great honour and privilege to present to you the 28th Edition of Id-Dritt, the annual law journal published by the Malta Law Students’ Society.

This law journal is the cumulative effort of a large number of people - the contributors, who dedicated large swaths of time to form and research their points of view, which are then expressed in the written form; the editors, who shaped and edited the content into the recognisable standard that Id-Dritt has become synonymous with; the peer-reviewers, who gladly accepted our invitation in providing a professional feedback about the content and the quality of the articles; and the GħSL Executive Board, without whose backing and support the whole idea of another edition of Id-Dritt would be nigh impossible.

What initially commenced back in 1944 as a highly-ambitious project by a small number of legal students with an amaranthine passion for the law, through many trials and tribulations, has now transformed itself into a quasi-customary obligation for this student organisation, both because of its timely delivery year after year, but also due to it being a product and a detailed examination (or in some cases, a rebuttal) of external events, technological advancements and societal questions prevalent in our community. Id-Dritt, along with its online sister the GħSL Online Journal, are amongst the only mediums accessible by students, academics and professionals in the legal field alike who are willing to not only pursue the further dissemination of legal knowledge and appraisal, but to encourage the fruition of healthy academic discourse and well-researched criticism, in a world seemingly lacking of both.

In a hyper-connected environment, where foreign and domestic policy is expressed through 140-character statements, and longstanding normative practices are being mercilessly discarded while we witness the creation of enterprises hell-bent on democratising basic norms and truths in ever-efficient ways, the need for clarity has never been this high of an antecedent. viii

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It would be easy for one to refrain from having to willingly differentiate between fiction and fact, instead opting for a policy of non-committal in the pursuance of further knowledge: this, in a world with open access to an infinite database of information at the touch of a button, seems rather sardonic, if not plainly comical. It seems that the Aristotelian means of a sturdy middle-ground remains elusive, hidden under the influence and end-product of multiple self-serving stakeholders, whilst a deep undercurrent of Socratesian cynicism slowly rears its ugly head with exponential frequency.

While the problems plaguing public discourse are well known (perhaps the result of a convoluted past, an ever-changing present, a hazy future or possible a concoction of all three), the stability allegedly defining academic writing features its own distinct set of new challenges. Some of the elements, which are inherent and contribute to the apparent niche of this medium (a protracted indepth examination of the subject matter; a discrepancy between the mainstream and the technical definition of terms which are the result of the insatiable need for accuracy and clarity; and a prevalent focus on the content as opposed to the aesthetic appeal or the delivery) might also threaten the allure for its intended reader, which in turn intimidates the motivation needed for the potential fruits to be sowed in the first place. It is perhaps disappointing that in Malta all law journals are published only by law students, while professional bodies who are seemingly eager to limitedly contribute to these publications, are unable or unwilling to have a medium of their own.

The effects of this can be pretty damaging. On the international stage, fringe elements of academic writing have already fallen into the crevices of self-serving partisan ideology, or else sacrificed in-depth scrutiny for mainstream appeal, to the detriment of their source material. And while the technostructure behind Malta’s academia, especially the legal sphere, remains robust for the foreseeable future, it is clear for many that the demand for legal writing far exceeds the supply.

While the work done by the multiple offices inside GħSL are indubitably substantial (the vast array of policy papers, seminars, ix

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conferences and publications all speak volumes about this organisation’s illustrious history of student and legal activism, as well as its ambitions and aspirations), and whilst the efforts of other organisations must be duly acknowledged, this fruitful habitat seemingly dissipates as soon as we venture from the grounds of Tal Qroqq.

There is still a disconnect between the appreciation for academic writing inside the four walls of the University of Malta, and the acknowledgment of said writing in the Law Courts, in Parliament and in the law firms, something which does not mirror other skilled professions with similar needs for academic research. As things currently stand, members of the legal profession here in Malta must either resort to the very few student publications in existence to obtain a multi-faceted understanding of the subject, or else turn to the press, a medium whose objectives (brevity, shock value, rapid content turnover and audience responsiveness) are more often than not incompatible with those necessary for a well-construed legal article. This latter point stems from a more subjective point of view: at some point, yours truly has worn the hats of a law student, a journalist, an editor for an academic journal and the chief executive officer of a student media organisation, and is perhaps more aware of the potential pitfalls when dealing with this dichotomy than those not specifically interested in either of these fields.

GħSL, through the Publications Office as well as its other committees, still remains committed in actively participating within the legal profession, as well as beyond. I have no doubt that in the upcoming years, this organisation will continue fulfilling this rapacious necessity for academic writing: This edition of Id-Dritt is, if nothing more, a testament to the values that are held so intrinsically deep within this organisation.

However, the real legacy of Id-Dritt and the Online Law Journal would only be cemented if it inspires further academics and professionals in the field to do two things: 1) Add to the slowlyincreasing library of Maltese academic research in the legal field, at a faster rate than the present supply, and 2) come up with substantial x

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new ways of transmitting such a highly-influential collection of legal knowledge to all members of the legal profession in an efficient, practical yet secure manner; from the judiciary to the executive, from the lawyers to the legal advisors.

On a final point, I would like to thank a large number of people who, without their help and input, the 28th Edition of Id-Dritt would have merely been a pipe dream: To Daniele, Nathaniel, Lara, Agnes, Aidan, Andrew James, Celine, Cynthia, Emma, Erika, Jessica, Julia and Matt, as fellow members of the Executive Board: We few, we merry few. My brief experience in GħSL has been insanely gratifying, and while your company has been hugely appreciated, I’m more than encouraged by what the future holds for each and every one of you. Knowing I had your confidence at every turn made the work easier to conclude, yet simultaneously more gratifying. You have my thanks!

To Susan, the Editor-In-Chief: I could not have possibly asked for a superior aide-de-camp in ensuring the finalisation of this project. Your invaluable experience has helped ensure that this publication reaches the highest levels it deserves, and your mark on this publication couldn’t possibly be overstated. It’s been a pleasure.

To Daniel, Carla, Clara, Maria, Emma and Diana, the IdDritt Editorial Team: Apologies for my incessant badgering, but in case I wasn’t clear enough in our conversations, your efforts were consistently top-notch and immensely appreciated. A better legal editorial team would be excruciatingly hard to come by, and I truly wish you all the best for your future endeavours, whatever and wherever they may be.

To my direct predecessors, Corinne and Ariane: Fulfilling a personal dream since the earliest days inside the law course was always going to be a challenge, especially when I had each of your big shoes to fill. To that end, your help and your advice are immeasurably cherished, and immensely appreciated.

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To my family and to Jessica, my significant other: Without you, all of this would have been rather pointless. Your omnipresent encouragement and unconditional love will always be treasured.

To all the contributors and the peer-reviewers: Your efforts, which continued to be of the highest academic calibre, are evidence of the high reputation that Id-Dritt holds within the legal profession.

We thank you for your contributions, and we hope we have made them justice.

And finally, to you, dear reader: We wish you thanks for your interest in this publication, and we hope to encourage and inspire you to read, examine, critique, participate and encourage such publications in the future, even when it might seem that such an endeavour is facing insurmountable odds.

I finish by some final words of encouragement and ponder. The following is an extract from the Song of Lewes, a 13th Century poem (originally in Latin) which is described by contemporary accounts as ‘a religious celebration of the triumph of right over might1: The saying goes, ‘Whatever the King wishes, is law,’ but the truth is the other way round, for the law stands even if the King falls. The law is made up of truth and charity and the habits of virtue; truth, light, charity, warmth, enthusiasm catch alight. Whatever the King legislates, let it be consistent with these principles. Otherwise, the people will be miserable; and they will be betrayed if the King averts his gaze from the truth, or lacks charity, or if he does not always have the energy to do right...

The King should treat his people according to their due. If he doesn’t, if he degrades his people and demotes them, there is no point in asking why men treated in this way disobey him. On the contrary, they would be mad not to do so.’

1

Colin Firth and Anthony Arnove, The People Speak - Voices That Changed Britain (Canongate Books Ltd 2012) 14 xii

Preamble Susan Cassar Editor-In-Chief, Id-Dritt XXVIII

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our years ago, I was approached and asked whether I would be interested to help the GħSL’s Publications Office in transcribing some speeches, the main aim being to publish them in the book entitled ‘The Constitution: 50 years of proposals and Counter Proposals1’. Being highly interested in the field of Constitutional law, I immediately accepted to help the office out, and after an enriching experience, I later on decided to join the Id-Dritt Editorial Board as an editor.

After having served the Id-Dritt Editorial Board for two consecutive years, I was asked by the then-Publications Officer Ariane Aquilina on whether I would consider contesting the election for Publications Officer, or else continue aiding the office by accepting the role of Editor-in-Chief. For the greater good of the Publications Office, knowing that the fifth year of my legal studies i.e. the Master of Advocacy course, would entail extra hard work (since one would not only have to attend lectures at the University of Malta, but also attend a lawyer’s office regularly in preparation for the warrant exam), I opted for the role of Editor in Chief.

I was excited and honoured to work for the 28th Edition of IdDritt during my final year of the law course. The role of Editor-inChief is not to be taken lightly: One of my main priorities was to keep Id-Dritt pertinent and alive in an era where, in this tiny rock in the middle of the Mediterranean, only a few people really appreciate the importance of legal research. It is wonderful to witness a substantial amount of authors expressing their interest in contributing their articles for Id-Dritt or for the GħSL’s Online Law Journal, and whilst academically legal research is highly valued, one cannot ignore the fact that in practice, more often than not not the messages heralded by these prestigious publications are falling on deaf ears.

As an example, allow me to mention the fact that despite the abundance amount of legal writings suggesting ways to enhance the Attorney General’s Office in Malta by separating his roles of 1

Mifsud Ivan (Ed.), The Constitution - 50 Years of Proposals and Counter Proposals (Book Distributors Limited 2015) xiv

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Government legal Advisor and public prosecutor, our Maltese legislators (since the 1990’s) have failed to take this research into consideration and apply the necessary criminal and constitutional amendments. The latter thought is not only held by yours truly, who is merely a freshly Bachelor of Laws (Hons) graduate, a Master of Advocacy student and a trainee in a lawyer’s office, but also by two local highly esteemed legal practitioners: Specifically, former European Commissioner Dr. Tonio Borg and Magistrate Dr. Aaron Bugeja, the latter having lectured me during the year on Criminal and Constitutional Procedure, who has continuously harped during their lectures that criminal and constitutional amendments to the said office ought to take place in this day and age, because this is what research (including that published in previous editions of Id-Dritt) has shown and indicated in no uncertain terms.

The author who dedicates his time researching on a particular area of law would usually propose amendments that would improve the manner in which our legal system works. In drafting and amending laws, the House of Representatives ought to take more into consideration these legal publications such as Id-Dritt as a source of knowledge, research and legal innovation.

Volume XXVIII of Id-Dritt contains a variety of articles dealing with different areas of law, from those being mainly practiced in the Valletta Law Courts such as Criminal Procedure, Constitutional and Human Rights Procedure and Administrative law, to the more new and complex areas being primarily exercised in law firms such as commercial law, gaming law, maritime law, and ICT law. Additionally, this year’s edition boasts a very good number of articles dealing with European Union law.

The contributors of the said legal journal include members of the judiciary, expert advocates and professors, newly graduate advocates, as well as experts in their fields such as architects and doctors, all of whom had experience in the drafting and passing of new legal amendments. The inclusion of the latter category may not be so welcome by some, however allowing some space to these professionals to contribute in an area which they are specifically involved in, would xv

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definitely result in them teaching legal practitioners and law students about that particular field of the law.

My role as Editor-in-Chief would not have been accomplished without the help and guidance of certain people. Firstly, I would like to thank the Publications Officers Corinne Micallef Grimaud and Matthew Charles Zammit, for understanding my ‘limitations’ as a Gozitan when scheduling Editorial Board meetings and for their constant support and guidance throughout this whole journey. Their leadership skills, dedication, and patience have made this dream of IdDritt come to reality. I thank both of them as well as their predecessor Ariane Aquilina for giving me this opportunity to serve as Editor-inChief. It has been an honour working with all of you.

Secondly, I would like to thank my team of editors Daniel Cassar, Carla Farrugia, Clara Galdies, Maria Refalo, Emma Sammut, and Diana Ungureanu for their hard work in editing the articles whilst also being engaged in academic activities. To all of you I would like to say: ‘A big well done. Thank you for being patient with me during those times wherein I demanded perfection to the core in following Oscola rules’.

I would also like to thank all the contributors for dedicating their time to write exceptional articles, without whom Id-Dritt would not have seen the light of day. Last but not least I thank the peer-reviewers who went through each and every article ensuring that they are of good quality for publication.

I hope that this edition of Id-Dritt would be availed of not only by law students or academics conducting some form of research for their thesis or assignments but also by the practitioner in his/her office, by the judiciary and by the Maltese legislator. Let us not simply leave these legal publications on a bookshelf, but let us respect the author’s hard work.

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Foreword Dr David Fabri Head of Department, Commercial Law Faculty of Laws

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The Study of Law

L

aw is an interesting, vital, useful, necessary and evolving phenomenon. It reaches into, influences and guides most aspects of our lives. Law is a civilized and civilizing device which allows us to lead better lives together in, and as a community. It makes our lives safer and more predictable than it otherwise might have been. Law makes the lives of ordinary people less difficult, and holds government and authority to account.

Law is a special and important subject to learn and to teach. The study of law is also a wonderful intellectual challenge – it is not about merely passing exams. If mishandled, law studies can become boring and seemingly useless. Bad teachers can ruin one’s interest in law. It does not need to be like this. The study of law is not about learning stuff by heart, or memorizing set answers to exam questions not yet even set, or about class notes and past papers. These are mental traps and one should rebel against these unworthy practices, rather than idly embrace them. Certainly, dictation suits the law very badly. How could so many closed minds almost ruin it for us by transforming the study of law into a monotonous and senseless burden?

We live in a fast changing world. Knowledge is key and crucial for one’s self-development, for one’s entertainment and for one’s interactions with others. Students have made a good choice entering the law course. It is a badge of honour to be and to be described as a University student. Students have to work to deserve that privilege.

Students do not come to University just to study for exams, but to open up their minds to knowledge. Learning is fun, and one should try to have fun while learning about law and its evolution and history.

Luckily, today we have far greater access to laws, cases and publications. Students, you should surround yourselves with books.

Even books one might not eventually ever read; serious books as well as fun books. They will sit there faithfully and silently waiting their moment to arrive. Put up shelves and bookcases wherever you can possibly fit them.

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One may start with such instructive older texts as the Code of Hammurabi and the Magna Carta, any book by the brilliant Lord Denning or any from the hilarious Rumpole collection. No real alternative to reading exists, and there are no short cuts. Either you read or you don’t. If you do not like reading, then you are in the wrong profession; indeed in the wrong place.

Laws should not be examined in isolation, but within their historical and political context. Everything has a context, and law is certainly no exception. A student should try to understand what the law is seeking to achieve. Is it a good law? Is it being done for the right purpose? Who is pushing it? What led to it? Are its objectives clear and has it been properly drafted? Does it achieve the intended objectives? Is it workable? Is it comprehensible? And how can one improve upon it?

Law students cannot simply accept what they find as if no alternative exists. There is no such thing as a perfect law. One can always find a different and a better way of doing things. This is where students come in the picture: they should analyse things, criticize them and work to improve them, thus offering new insights. Students leaving from the University with a law degree should remain humble and continue studying and learning beyond that which was taught.

Perhaps more than ever before, we need to know how and why laws are being made, and why some laws have been conceived and drafted so poorly. We desperately need a more informed and coherent discussion of what we want to achieve from regulators and regulation, what the objectives are, what risks need to be better managed, what dangers lie in wait, what mistakes and deficiencies have been identified, how regulators should conduct themselves, and what the future holds for us in this area. In this context, Id-Dritt should become quality and compulsory reading.

Criticism of legislation is still too soft or inexistent and we now need to start adopting harsher pens. Id-Dritt should take the lead, build on what has already been achieved and continue to improve legal knowledge. No more mere reviews; no more descriptions; no xix

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more simplistic narratives; no more vanity articles; but more original analysis and innovative solidly researched criticism. This should be the cardinal objective of this student publication.

Writing well about law, like writing good laws, presents significant challenges. It is not enough just to write, but one should seek to make an articulate, original and substantial contribution to knowledge and to the community, a contribution imbued with a strong sense of justice.

So many legal developments have happened during these past 25 years that it may sometimes seem difficult to keep up.

So many new regulators and so many new regulations.

So many poorly drafted laws to correct; so many bad laws to improve, to strike down, to replace; so many new good laws still to adopt; so many laws not enforced or enforced selectively.

So much to read, so much to think about, so much to criticize, so many small and big injustices, so much to change and improve.

So much to write about, so little time.

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Editorial Board

Publications Officer Matthew Charles Zammit Corinne Sammut Micallef-Grimaud Editor-In-Chief Susan Cassar Editors Daniel Cassar Carla Farrugia Clara Galdies Maria Refalo Emma Sammut Diana A. Ungureanu

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Executive Board 2017 / 2018 Għaqda Studenti tal-Liġi (GħSL)

President

Daniele Gafà

Vice President

Nathaniel Falzon

Secretary General Lara Attard

Financial Controller

Matthew Booker

Public Relations Officer Cynthia Duncan

Academic Events Officer

Celine Cuschieri Debono

Academic Affairs Officer Agnes Vella

International Officer Julia Cini

Marketing Officer Emma Blake

Resources Officer

Andrew James Abdilla

Events Officer Aidan Cutajar

Policy Officer Erika Taliana

Publications Officer

Matthew Charles Zammit

External Relations Officer

Jessica Napier

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Contents

Volume 1

Administrative law The role of current Maltese legislation in the prevention of traffic accidens in Malta Mariah Mula

2

Bio-Ethics My Patient - the Unborn Human Child Godfrey Farrugia

18

Book Review The Multidimensionality of Privacy: Joseph A Cannataci’s ‘The Individual and Privacy’

Kevin Aquilina

57

Comparative Tort Law Le funzioni della Responsabilta’ Civile nel panorama Italiano, e il difficile dialogo con il Danno Tanatologico Anunziata Rapillo

67

Competition Law An effective regulatory enforcement and sanctions regime post the Federation of Estate Agents Case: the issues

Paul Edgar Micallef Grimaud

93

Criminal Law An analysis of the Maltese Criminal Law on Female Genital Mutiliation and reflections on potential legal & social consequences

Jeanise Dalli

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Evaluating the impact of the EU Directives regarding criminal investigations, namely 48/2013 regarding the rights of a suspect

Consuelo Scerri Herrera

149

Crypto-Currency Law Is current legislation ready to embrace the Blockchain revolution, and what is the legal position of Initial Coin Offerings (ICO’s)?

169 Jonathan Galea, Joe Borg, Erika Micallef, Miriana Borg

Data Protection Law Consent in light of the General Data Protection Regulation

194

The General Data Protection Regulation: Automated decisions and the impact on Big Data Analytics

215

Sharon Xuereb, Terence Cassar

Alastair Facciol

Employment Law Employment Law - Disciplinary procedures and warnings

Natalino Caruana De Brincat

227

Environmental Law The Recast Renewable Energy Directive - Any consequences for climatechange?

Rya Gatt

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Volume 2

EU Law Brussels: The new Babylon? Law and language in the European Union?

263

A Discussion of Proportionality in selected cases of EU Fundamental Rights

285

Multilingualism and EU Legal Terminlogy

316

The Eurasian Economic Union Risks and opportunities of an emerging Europe

342

Roxanne Meilak Borg

Natasha Buontempo

Diane Sultana

Werner Miguel Kühn

Gaming Law The future of Malta’s Gaming legal framework: Overhauling the System Silvana Zammit

410

International Law Some general reflections on characteristic features of International Humanitarian Law? Marcin Marcinko

423

Legal History The Malta Government Gazette: a chronicle of History in the making?

Kevin Aquilina

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Maritime Law Unmanned Surface Vehicles and Piracy Identifying the (New) Legal System Caroline Grech

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Planning Law Article 469A from a Planning Law Perspective Robert Musumeci

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Press Law Freedom of Speech and the Media: An Absolute or Derogable Human Right?

Vincent de Gaetano

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EU Law

Brussels, the new Babylon? Law and language in the European Union Roxanne Meilak Borg

Roxanne Meilak Borg graduated from the University of Malta with an LL.D in 2014, and then acquired a further post-graduate Diploma in Interpreting.

Between 2011 and 2014, she was a Freelance Conference Interpreter for the European Commission, before joining the Jesuit Refugee Service as a lawyer.

She’s currently working as a Legal Executive in the University of Malta.

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1. Law and Language in the EU: an introduction

T

he European continent is home to many a proud nation that have historically and stoically guarded both their interests and their borders: countries that waged war against other countries, indeed, against each other, in honour and defence of their sovereignty. Europe was and largely continues to be synonymous with strong and independent nations that have thus held their own not only in the European context, but also in the international sphere: nations whose peoples have proudly upheld their respective and distinct cultures, traditions, heritage and languages. The past seventy years have nonetheless witnessed a paradigm shift in the manner in which European countries have chosen to interact between themselves and to pursue relations; developments most certainly attributable to the devastation caused by the First and Second World Wars. In the aftermath of the events that shook the world to its core, six European countries came together in an unprecedented move to set up the European Coal and Steel Community (ECSC), a regional organisation aimed at encouraging economic cooperation, rather than violence, between themselves. The organisation grew and evolved to form the consolidated economic and political union known today as the ‘European Union’ (EU). Countries joining the European project became known as Member States, and were called in the process to cede a portion of their legislative sovereignty to such Union. Member States thus no longer remained the sole authority in determining what legislation applies within their respective territories. These countries agreed, in relation to pre-set designated areas of competence, to decide on and enact such legislation together, and committed themselves to implementing this legislation in their respective territories.

Despite such arrangement, the EU is decidedly not a federation; nor indeed is it akin to an international organisation. It has a distinct personality, which was recognised even in its earliest days.

In 1963, in fact, its main juridical body, known then as the European Court of Justice (ECJ), described it as a new legal order of international law:

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The Community constitutes a new legal order of international law for the benefit of which the states have limited sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals1.

On a practical level, the European project has required effective communication between individuals with diverse backgrounds and cultures, and who speak various languages. The project has prompted much debate, in fact, both within and outside Europe, not only in relation to the nature of the Union but also in relation to corresponding language and linguistic issues. Language is a necessary medium for both legislation and communication, but it is also a symbolic notion, since it is intrinsically linked to identity. To this end, linguist John Edwards observes that language is a ‘powerful pillar of identity’2, while language nationalist von Humboldt famously stated that ‘absolutely nothing is as important for a nation’s culture as its language’3. Language has played and continues to play an essential role in people’s sense of national identity, a fact confirmed by a recent study commissioned by a Council of Europe Conference4.

It is therefore for political and psychological, as well as for practical reasons, that the EU boasts national languages of its Member States as its official languages. Early on in the course of European integration, European countries agreed that they would not relinquish their national languages for a single language as a medium through which their cooperation could be negotiated and expressed. They opted, rather, to retain and indeed actively employ their national languages within the context of the Union and negotiations related thereto.

Such languages are therefore the official and working languages of the Union, and EU legislation is today widely available in twenty-four 1

Case C-26/62, Van Gen den Loos v Nederlandse Administratie der Belastingeni [1963]ECR 1.

2

John Edwards, Language and Identity: An Introduction (Cambridge University Press 2009) 205.

3

John E. Joseph, Language and Identity: National, Ethnic, Religious (Palgrave Macmillan 2004).

4

Michael Byram, ‘Languages and Identities’ (1st Council of Europe intergovernmental Conference on Languages of Schooling: towards a Framework for Europe, October 2006).

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languages. In the context of public international law, language has never been such a significant consideration: no other international entity or organisation has ever admitted – or been burdened by – as many working and/or official languages5. It is worth noting that, in stark contrast, the United Nations has six official languages (English, French, Arabic, Chinese, Russian, and Spanish)6, while the North Atlantic Treaty Organisation (NATO) has two: English and French7.

The system and mode of procedure adopted within the EU framework is thus symbolic, but also practical, in that it ensures that binding legislation is available in the national languages of the Member States. While, in the spirit of giving credit where credit is due, it is apt to affirm that the EU has promulgated a linguistic set-up that has to a large extent proved successful, the present article aims to shed light on some of the challenges that have accompanied such a set-up, particularly in relation to the availability of legislation in different language versions. To this end, the discussion herein will focus primarily on differences that arise between the various language versions of EU legislation, which differences may give rise to different rights and obligations in different Member States, and how such differences are dealt with. Whilst acknowledging other pressures caused by the Union’s linguistic regime, such as for instance, the need to ensure efficient interpretation and translation services, the author will not consider these hereunder.

2. Twenty-Four Equally-Authentic Language Versions of EU Legislation The twenty-four language versions of EU law are deemed by law to be equally authentic: 5

Roxanne Borg, ‘Law and Language in the EU: A Reflection of Unity in Diversity or An Opportunity for Judicial Activism?’ (LLD, University of Malta 2014) 26.

6

United Nations, ‘Official Languages’ (United Nations, 2018) < http://www.un.org/en/sections/ about-un/official-languages/> accessed 10 February 2018.

7

NATO, ‘Final Communiqué of the First Session of the North Atlantic Council – (Terms of Reference and Organisation) (NATO, 9 June 2010) < https://www.nato.int/cps/en/natolive/official_texts_17117.htm> accessed 10 February 2018.

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This Treaty drawn up in a single original in the Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish languages, the texts in each of these languages being equally authentic, shall be deposited in the archives of the Government of the Italian Republic, which will transmit a certified copy to each of the Governments of the other signatory states.8 The corresponding question that arises, therefore, is whether there cn be true unity between the twenty-four equally-authentic language versions of a legislative text. Although, according to Kjaer, ‘establishing equivalence between legal texts across languages is as impossible as squaring a circle’9, the existence of a legal text in several language versions is neither a recent nor a unique phenomenon to the EU. States have long entered into agreements in the form of treaties within the framework of public international law. These agreements are generally binding on the parties thereto and generally available in their respective languages10. Multilingual legislation is furthermore also prevalent in multilingual states such as Malta, for instance, where it is available in both Maltese and English, although the Constitution of Malta makes it clear that in cases where there is a conflict between the two versions, unless otherwise stated, it is the Maltese version that prevails11.

Kuner, who wisely recalls that ‘a number of diplomatic incidents and even wars have been triggered by differences between language versions of multilingual treaties’, further asserts that the existence of 8

Consolidated Versions of the Treaty on European Union [2012] C326/13, Article 55.

9

Anne Lise Kjaer, ‘The Every-Day Miracle of Legal Translation’ (2008) 21 International Journal for the Semiotics of Law 67.

10

Malcolm Shaw, International Law (Sixth Edition, Cambridge University Press, 2008) 938 and Gert Van Calster, ‘The EU’s Tower of Babel – The Interpretation of Multilingual Texts by the European Court of Justice’ in Ami Barav and Derrick Wyatt (eds), Yearbook of European Law 1997 (Clarendon Press 1998) 366.

11

Constitution of Malta, Article 74.

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a text in several languages is a ‘dangerous’ scenario12. Nonetheless, it is a necessary evil both in the context of public international law as well as in the European context. Consequently, in both scenarios, the role of translation is indispensable. Differences between multilingual treaties, as well as between the various language versions of EU law, are also inevitable and arise for numerous reasons. The implications of multilingualism and in particular, of the availability of equally-authentic legislative texts in various language versions becomes more pronounced in cases where linguistic discrepancies subsist between such language versions, and especially where these may lead to various interpretations of the law and consequently to rights or obligations which vary in the respective countries13. Queries pertaining to linguistic issues and the corresponding true and correct interpretation of law in the European context arose even in the early days of the European Coal and Steel Community (ECSC), back when negotiations on a European level and corresponding legislative texts were respectively undertaken and drafted in French, and back when French-language texts were deemed and pronounced by the Court of Justice to be the authoritative ones14.

3. The Interpretation of Multilingual Legislation Circumstances today have changed greatly. French is no longer the authoritative EU language. As exemplified above, EU law is available in twenty-four languages, which must be interpreted and applied uniformly in all the Member States. The challenging task of interpreting the equally-authentic versions of European legislation, as alluded in the preceding paragraph, continues to be entrusted to the EU’s main juridical body (hereafter referred to as the ‘Court’ or the ‘CJEU’). This 12

Christopher B. Kuner, ‘The Interpretation of Multilingual Treaties: Comparison of Texts versus the Presumption of Similar Meaning’ (1991) 40 ICLQ 953.

13

S. Weatherill and R. Beaumont, European Community Law (London, Penguin, 1993) 131: ‘At a more technical level EC legislation has the problem of being authentic in nine languages and inevitably differences can arise in the translations’.

14

See, for instance, Case 5/55, Assider v High Authority [1954-56] ECR 140, which dealt with the interpretation of the Protocol on the Statute of the Court of Justice.

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Court has jurisdiction to give preliminary rulings concerning the interpretation of the Treaties, and the interpretation and validity of the acts of EU institutions, bodies, offices, and agencies in accordance with Article 267 of the Treaty on the Functioning of the EU (TFEU)15.

In the field of international law, the interpretation of multilingual texts is governed by the 1969 Vienna Convention on the Law of Treaties (VCLT)16. Articles 31 through 33 in particular relate to the codification of customary international law and the interpretation of multilingual texts17. In the European context, there are no rules or regulations to aid the interpretation of multilingual EU legislation.

The task of interpreting such legislation and attempting to bridge the gap between the various language versions of a single text that differ from each other in some way falls to the CJEU. It should be noted, at this point, that such Court is not bound by the rules of international law in interpreting EU legislation; nor does it rely on them, since, as the Court explained clearly in Van Gen den Loos18, the European Community constitutes a ‘new and autonomous legal order’ complete with its own rules.19 On the other hand, although the Court is not bound by such rules, it is certainly and nonetheless aware of them and arguably also draws inspiration therefrom.

Several studies, undertaken along the years, attempt to shed light on the Court’s chosen method or methods of procedure in determining cases involving linguistic issues and discrepancies between the various language versions of an EU text of law. Notable research conducted in this regard is attributable to Geert Van Calster20, Mattias

15

Consolidated Version of the Treaty on the Functioning of the European Union [2012] C326/47.

16

United Nations, VCLT, 12 May 1969, UN Treaty Series vol. 1155, 331.

17

Ibid Articles 31-33.

18

Van Gen den Loos (n 1).

19

Ibid 12.

20

Gert Van Calster, ‘The EU’s Tower of Babel – The Interpretation of Multilingual Texts by the European Court of Justice’ in Ami Barav and Derrick Wyatt (eds), Yearbook of European Law 1997 (Clarendon Press 1998) 368.

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Derlén21 and Wouter Jan Berends22. Van Calster identified possible differences that could arise between different language versions of a legislative text and attempted to draw comparisons between the Court’s modes of procedure in such cases and international law principles relating to the interpretation of multilingual legislation. Derlén opted for a different perspective, studying the methods employed by the Court in reaching decisions on such cases. Derlén identified and named three distinct methods of interpretation employed by the CJEU: the classical reconciliation method, reconciliation and examination of the purpose, and the radical teleological method23. Berends undertook a statistical analysis of EU case-law and relevant CJEU decisions taken over a fifty-year period, namely between 1960 and 2010.

Berends concluded, from this feat, that the Court employed two main interpretive strategies during such time, namely, the literal approach and the teleological approach, largely corroborating Derlén’s postulations.

Derlén and Berends’ conclusions and insights have served as inspiration for the present article, which is also based on the author’s 2014 dissertation submitted in partial fulfilment of the Degree of Doctor of Laws at the University of Malta24 on the same subject. In the course of writing such Dissertation, the author undertook an in-depth statistical study of cases heard and decided by the CJEU between 2010 and 2014 concerning linguistic discrepancies between the various language versions of EU legislation. This article draws on insight gathered through such study, as well as through the above-mentioned research conducted by the above-mentioned authors. It aims to shed light on the two main approaches adopted by the Court of Justice of the EU in its interpretation of cases involving linguistic discrepancies between the various EU legislative texts and purports to do so by exemplifying each approach through judgements of the Court.

21

Mattias Derlén, Multilingual Interpretation of European Union Law (Kluwer Law International 2009).

22

Wouter Jan Berends, The Interpretation of Multilingual EU Legislation: The Practice of the European Court of Justice and its Consequences for Legal Certainty (Utrecht University 2011).

23

Derlén (n 21) 43-49.

24

Roxanne Borg, ‘Law and Language in the EU: A Reflection of Unity in Diversity or An Opportunity for Judicial Activism?’ (LLD, University of Malta 2014).

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he Vienna Convention on the Law of Treaties25. In terms of this latter provision, one must, to interpret the terms of a multilingual text, begin from the ordinary meaning of such terms and take into consideration their object and purpose. The presumption here is that the legislator’s intention has been reliably expressed in the text concerned and that it is therefore clear from the wording and language used therein. Nonetheless, it is in practical terms not always possible to ascertain the meaning of the terms used in a legislative text from a purely linguistic perspective: hence, the context of any such legislative text must also, at least to some extent, be considered.

The Court, in employing the literal approach, tends to undertake a comparison of all the language versions of the text which is the source of confusion, and attempts to reconcile these versions on the basis of one of two possible arguments: the ‘majority’ argument, or the ‘clarity’ argument. The former concept refers to the meaning expressed in most language versions, the latter, to the clearest texts.

The Court has opted for this approach, and indeed began to develop its justification therefor, since and in the 1960s. The author recalls, for instance, the reference for a preliminary ruling made to the Court in the case of Bestuur der Sociale Verzekeringsbank v J. H. van der Vecht26 in 1967 in relation to the Dutch language version of Regulation No 3 of the Council of the European Economic Community concerning social security for migrant workers27, which version differed linguistically from the other language versions of the same Regulation.

Articles 12 and 13 (a) of the said Regulation established respectively (i) the general rule that workers were subject to the social security legislation of the State in which they were employed, even if the undertaking which employed them was itself established in another Member State, and (ii) the exception to this rule, according to 25

VCLT (n 16).

26

Case C-19/67, Bestuur der Sociale Verzekeringsbank v J. H. van der Vecht [1967] ECR 345.

27

This Regulation is not available in English, but is available in French, German, Dutch and Italian. See Reglement no 3 concernant la securite sociale des travailleurs migrants [1958] OJ P 30/561.

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which workers permanently resident in one country and employed in another by an undertaking having an establishment to which the workers were normally attached in the former State, were subject to the legislation of this former State insofar as their term of employment in the latter State was for twelve months or less28. As originally drafted, Article 13 (a) of the Dutch language version, which was later amended, provided that workers had to be normally employed with an undertaking as defined above: “een bedrijf … waarbij zij gewoonlijk werkzaam zijn”29. The Court compared the provision of law contained within each latter-mentioned version, professing it as ‘comparable, if not identical’: all three versions required workers to be normally attached, rather than normally employed, to the undertaking. The Court acknowledged that this version permitted a different interpretation of the provision, but, basing its decision on the majority argument, ruled that the meaning as expressed by the French, German, and Italian versions should also be attributed to the Dutch version, notwithstanding the different term used in such latter version.

In Van der Vecht30, the Court adopted the literal approach to give a uniform interpretation of the various language versions of a Community Regulation; in the 1969 case of Erich Stauder v City of Ulm - Sozialamt31, the Court employed the same method to ensure the uniform interpretation of a European Commission Decision, issued on 12 February 196932, which established a welfare scheme for persons disabled during the war, entitling such individuals to buy butter at a reduced price by using a special coupon for the purpose.

Pursuant to Article 4 of the German language version of the said Decision, the German authorities required such coupon to be issued in the beneficiary’s name: “auf ihren Namen ausgestellten”33. The French and Italian versions of the Decision stated, however, that the 28

Van der Vecht (n 26).

29

Author’s translation: ‘a company … with which they are normally employed’.

30

Van der Vecht (n 26).

31

Case C-29/69, Erich Stauder v City of Ulm - Sozialamt [1969] ECR 419.

32

Decision 69/71/EEC.

33

Author’s translation: ‘issued in their name’.

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butter could be acquired in exchanged for a personalised coupon: “bon individualise” and a “buono individualizzato”34 respectively. The plaintiff in the main proceedings complained, thus, that the procedure followed by the German authorities was excessive and illegal.

The Court upheld the plaintiff’s claim, holding that the text in doubt was to be interpreted in light of the versions in all four languages’35 – inferring, therefore, the majority argument – as well as of the legislator’s intention.

The Court has, throughout the years, continued to follow this reasoning in similar cases brought before it: notable recent decisions in this regard include Proceedings brought by X36 and Dirk Frederik Asbeek Brusse and Katarina de Man Garabito v Jahani BV37. A brief overview of the linguistic and corresponding legal issues raised in these cases are laid out hereunder.

The reference for a preliminary ruling made in the case of X pertained to the interpretation of Article 12 of Directive 95/46/EC38. The Dutch, English and Swedish language versions of this particular provision safeguard the right of data subjects to obtain information about their personal data from a data controller ‘without excessive delay or expense’(“bovenmatige vertraging of kosten”39), while the other language versions provide for the same process ‘without delay or excessive expense’40. The referring Dutch Court questioned whether the Dutch version precluded the levying of fees where personal data was requested from a public authority. The Court examined all other language versions of the relevant provision in existence at the time and 34

Author’s translation: ‘personalised voucher/coupon’.

35

Erich Stauder v City of Ulm – Sozialamt (n 31).

36

Case C-486/12, Proceedings brought by X [2013] OJ C 45/13.

37

Case C-488/11, Dirk Frederik Asbeek Brusse and Katarina de Man Garabito v Jahani BV [2013] OJ C 225/10.

38

Of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L 281/31.

39

Author’s translation: ‘excessive delay or expense’.

40

Author’s translation of the Maltese version: ‘minghajr dewmien jew spejjez eccessivi’.

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held that such fees were not, in fact, precluded. In its final decision, the Court acknowledged the importance of uniform application of EU law, stating that it is ‘impossible to consider one version of the text in isolation’, but such must be ‘interpreted on the basis of both the real intention of its author and the aim which the latter seeks to achieve, in light, in particular, of the versions in all languages’41.

Brusse concerned the interpretation of Directive 93/13/EEC42. The linguistic issue that arose in this case pertained to a discrepancy between Article 1 of the various language versions of the said Directive, which provision sets out the Directive’s purpose of approximating national provisions relating to unfair terms in contracts. The Dutch version refers to contracts concluded between a ’verkoper’43 (seller) and a consumer, while the French version made reference to contracts concluded between a ’professionel’ (professional) and a consumer.

The text of the French language version was furthermore reflected in the Spanish, German, Danish, Italian, Greek, and Portuguese versions, while the English version spoke of a ‘seller or supplier’. The term used in the Dutch version was thus clearly more restrictive in scope.

The Dutch Court requesting a preliminary ruling sought the CJEU’s guidance as to the application of such provision, and the CJEU again called for an interpretation of the text in light of all the language versions, considering the proper intention of such provision to be that expressed by the majority of the language versions thereof.

Somewhat surprisingly, the Court has taken a diametrically-opposed position to that exemplified above in a 2017 case involving a linguistic discrepancy between the Bulgarian language version of the Rules of Procedure of the General Court and the other language versions of the same text. In this case, of HX44, an appeal from a 2016 judgement of the same Court, the appellant argued that the General Court should not have dismissed an oral request he made to modify his application since the Bulgarian version of the Court’s Rules of Pro41

Proceedings brought by X (n 36) para 19.

42

Of 5 April 1993 on unfair terms in consumer contracts [1993] OJ L 95/29.

43

‘Seller’.

44

Case C-423/16 P, HX vs Council of the European Union [2017] ECLI:EU:C:2017:848

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cedure does not, unlike the other language versions thereof, require a written document to request such modification45. The other party to the case, the Council of the EU, argued, quoting the case of Stauder above-mentioned, that any text of EU law must be interpreted ‘in the light of all the other language versions in accordance with its author’s intention’46. In an unprecedented move, the CJEU did not accept this latter argument, favouring instead the right of individuals to address the Courts of Justice of the EU in any official language of their choosing over the obligation to refer to all ‘the language versions of those rules in order to avoid a possible divergence in the language version which is the language of the case’47.

In conclusion to this section, the author recalls Cornelis J. W. Baaij’s statistical analysis of cases involving linguistic issues decided by the Court of Justice between 1960 and 201048, and Baaij’s conclusion that during such period, the Court opted most often for the literal approach.

On the other hand, the external study conducted by the author and referred to in page 6 above, of similar linguistic issues heard and determined by the Court between 2010 and 2014 revealed that “at first glance, it would appear that the Court recently opted for the literal approach far less frequently than it did for the teleological method”49.

A preliminary overview of several similar cases decided by the Court in the past three years or so seems to indicate that this is indeed a continuing trend; perhaps, an implicit acknowledgement of Jacobs’50 affirmation that “interpretation problems caused by differences between language versions can only rarely be resolved by purely linguis45

Ibid, paragraphs 13 – 17.

46

Ibid, para 25.

47

Ibid, para 26.

48

Cornelis J. W. Baaij, ‘Fifty Years of Multilingual Interpretation in the European Union’, in Peter Tiersma and Lawrence Solan (eds) The Oxford Handbook of Language and Law (OUP 2012) 217.

49

Roxanne Borg, ‘Law and Language in the EU: A Reflection of Unity in Diversity or An Opportunity for Judicial Activism?’ (LLD, University of Malta 2014) 102.

50

Francis Geoffrey Jacobs, ‘Approaches to Interpretation in a Plurilingual Legal System’ in M. Hoskins and W. Robinson (eds) A True European – Essays for Judge David Edward (Hart 2003).

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tic means”51.

3.2. The Teleological Approach The second approach favoured by the Court in determining cases involving linguistic queries is the teleological approach. In its most distilled form, this approach considers the purpose and context of a problematic provision, completely discarding ‘the linguistic aspect once a discrepancy is observed between the various language versions’52. This method of interpretation is frequently employed by the Court, which declares, when it bases itself on such to determine a linguistic issue, that reference must be made to the purpose and general scheme of the rules of which the provision or legislation in question forms part.

The 1977 case of North Kerry Milk Products Ltd. v Minister for Agriculture and Fisheries53 is one of the first cases in which the Court opted for such approach. The linguistic discrepancy featured, in this case, between the various language versions of Regulation No 1134/68 of the Council54 governing the calculation of certain benefits in the context of casein55 production. The English version of this legislative text included the phrase “due and payable”, which did not, however, feature in any of the other language versions of the same text. The Commission argued that the English version ‘should be interpreted in the light of the other versions’56. The Court acknowledged the variance, but proceeded to decide the case by examining the purpose and the context of the Regulation in question, asserting that ‘in the 51

Ibid, 304.

52

Derlén (n 21) 47.

53

Case C- 80/76, North Kerry Milk Products Ltd. v Minister for Agriculture and Fisheries [1977] ECR 425.

54

Of 30 July 1968 laying down rules for the implementation of Regulation No 635/68 on conditions for alterations to the value of the unit of account used for common agricultural policy [1968] OJ Spec Ed 396.

55

The principal protein in milk, which forms the basis of curd and cheese.

56

North Kerry Milk (n 53) 435 para 10.

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context of the present case it is at any rate necessary to consider the rules governing the grant of aid for the manufacture of casein’57 (rather than the actual wording of the legislative text in question).

The case of The Institute of the Motor Industry v Commissioners of Customs and Excise,58 decided by the Court in 1998 using the teleological method, is one of the cases which the same Court frequently cites in its recent decisions also based on the teleological approach59. This preliminary ruling concerned the interpretation of Article 13A (1) (l) of the Sixth Council Directive 77/388/EEC60 on the harmonization of the laws of Member States relating to turnover taxes. The English version of the provision in question, which lists exemptions for certain activities in the public interest, refers the supply of services and goods by non-profit organisations with the aims of, amongst others, a trade union nature. The French version contained, in its stead, the word syndicale. The English referring court noted, in its reference for a preliminary ruling to the ECJ, that the latter French term appeared to have a wider scope than the term employed in the English language version of the same legislative text61. The question raised by the English referring court was in effect whether a voluntary association of persons working in the retail sector of the motor industry could therefore avail itself of the exemption in the provision in question.

The Court confirmed the linguistic discrepancy, further affirming that the expression used in several versions, including the English one, referred essentially to workers’ trade-unions, while the expressions used in the other language versions, including the French, additionally referred to professional associations which do not constitute 57

North Kerry Milk (n 53) 435 para 12.

58

Case C-149/97, The Institute of the Motor Industry v Commissioners of Customs and Excise [1998] ECR I-7053.

59

Roxanne Borg, ‘Law and Language in the EU: A Reflection of Unity in Diversity or An Opportunity for Judicial Activism?’ (LLD, University of Malta 2014) 108.

60

Of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes [1977] OJ L 145/1.

61

The Institute of the Motor Industry (n 58) para 11.

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such unions62. The Court ceased its linguistic analysis there, however, and proceeded to base its conclusion on general principles of taxation. The Court considered the aim of Article 13A and justified its decision as follows: ‘It is settled case-law that the wording used in one language version of a Community provision cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement of the uniform application of Community law. In the event of divergence between the language versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms a part’63.

In the 2014 case of Posteshop64, the CJEU was asked to examine Recitals 3 and 16 to 18 of Directive 2006/114/EC65 as laid out in the various language versions, and particularly, in the French and Italian versions, which referred respectively to ‘pubblicita’ ingannevole ed illegittimamente comparativa”66 and “pubblicite’ trompeuse et … publicite’ comparative illicite’67. The Italian version thus suggested that advertising had to be both misleading and unlawful, while the French version identified two separate forms of advertising. In a similar vein, the CJEU, while acknowledging the discrepancy, proceeded to examine Article 1 of the said Directive, which lays out its purpose. The Court observed that the Directive proffers two separate definitions for misleading advertising and unlawful comparative advertising and concluded that these constituted, therefore, two separate infringements for the purposes of the Directive, and were not of a cumulative nature.

62

The Institute of the Motor Industry (n 58) para 15.

63

The Institute of the Motor Industry (n 58) para 16.

64

Case C-52/13, Posteshop SpA – Divisione Franchising Kipoint v Autorita’ Garante della Concorrenza e del Mercato and Presidenza del Consiglio dei Ministri [2014] OJ L 376/21.

65

Of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising [2006] OJ L 135/13.

66

Author’s translation: ‘misleading and unlawful comparative advertising’.

67

Author’s translation: ‘misleading advertising and unlawful comparative advertising’.

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In December 2017, the CJEU pronounced two judgements in cases involving linguistic issues which it decided teleologically: Florea Gusa v Minister for Social Protection, Ireland, Attorney General68 and Polkomtel sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej69. The linguistic discrepancy brought to light in the former case subsists in Article 7 of Directive 2004/38/EU70. The English and French language versions of such provision expressly require previous employment, with the inclusion of the phrases ‘after having been employed’ and ‘après avoir été employé’ respectively71. The other language versions of the text make a more general reference, through their respective wording, to people who have ‘worked’72. The CJEU, while noting that ‘provisions of EU Law must be interpreted and applied uniformly in the light of the versions established in all the language of the European Union’, upheld the notion that ‘where there is divergence between the various versions, the provision in question must be interpreted by reference to the general scheme and the purpose of the rules of which it forms part’73. The Court subsequently undertook an analysis of the objectives of the legislative text in question in order to pronounce an answer to the reference for a preliminary ruling made by the Irish Court of Appeal.

In the latter above-mentioned case, Polkomtel, a reference for a preliminary ruling was made to the CJEU in light of the linguistic discrepancy between the Polish language version of Article 13 (3) of the Access Directive74 and the other language versions of the same pro68

Case C-442/16, Florea Gusa v Minister for Social Protection, Ireland, Attorney General [2017] ECLI:EU:C:2017:1004 69

Case C-277/16, Polkomtel sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej [2017] ECLI:EU:C:2017:989.

70

Of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L 158/77.

71

Florea Gusa (n 68) para 32.

72

Ibid para 33.

73

Ibid para 34.

74

Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities [2002] OJ L 108/7.

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vision. As the Court highlights in its judgement, the Polish language version seems to indicate that national regulatory authorities (NRA) may require an operator to adjust its prices calculated on the basis of costs only where such operator has already started to apply them75, while other language versions of the same text – such as the German, English and French ones – allow the interpretation that a national regulatory authority may require an operator to adjust prices even prior to such being applied76. In this case too, the Court upheld the notion that in interpreting EU law, which must be applied uniformly, reference must be made to the purpose and general scheme of the rules of which it forms part77 and pronounced its final judgement following an examination of the objectives of the Directive in question.

It is pertinent to mention, in conclusion to this section, that, in addition to the latter two cases above-mentioned, the Court also decided several others involving linguistic issues by employing the teleological method in 201778, and perhaps to this end, pertinent also to question whether this is indeed an indication of a favoured single approach for future cases. The author merely means to vocalize such a query in the present article, since providing a substantial answer thereto would perforce require an additional in-depth analysis of all the CJEU’s most recent judgements involving linguistic discrepancies between various language versions of EU law and such is not the aim of the present article.

4. EU Legislation: a case of Brussels, or Babylon?

While the set-up of the European Union proves that the harmonisation of legislation between twenty-eight countries, each having its 75

Polkomtel (n 69) para 56.

76

Ibid para 58.

77

Ibid para 59.

78

See for instance, Case C-236/16 Merck KGaA v Merck & Co. Inc, Merck Sharp & Dohme Corp., MSD Sharp & Dohme GmbH [2017] ECLI:EU:C:2017:771; Case C-404/16, Lombard Ignation Lizing Zrt. V Nemzeti Ado-es Vamhivatal Fellebbviteli Igazgatosag [2017] ECLI:EU:C:2017:759; and Case C-293/16, Sharda Europe BVBA v Administracion del Estado, Syngenta Agro SA [2017] ECLI:EU:C:2017:430.

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own legal system and cultural and linguistic background, is possible and may indeed be successful, a microscopic study of the various language versions of EU legislation reveals a prevalent existence of linguistic divergences between such legislative texts. Such divergences may indeed be described as a natural consequence of the European project.

The Court of Justice plays an invaluable role in vocalizing how such legislation may be interpreted without prejudicing the authenticity of such legal documents and the principle of uniform application throughout the Union. To this end, several facts emerge clearly from a reading of the Court’s relevant jurisprudence on the subject.

Firstly, the Court does not confine itself to a single approach: it has different ways of interpreting EU legislation that differs linguistically.

It is possible, as exemplified above, to identify two perspectives – the literal approach, and the teleological approach – and it is also possible to identify several principles upheld by the Court in its final judgements pertaining to such cases. There is, however, an element of uncertainty as to which approach the Court will opt for in any given case involving linguistic issues – or indeed, whether it will discard any such approach in favour of another right. In Baaij’s words, ‘the ECJ’s interpretative canons do not reveal when it will use one or the other method as its principal argument in justifying the interpretation of the legal provision in question’79. The CJEU has, for this reason inter alia, been accused of judicial activism, a term used to exemplify a liberal – as opposed to a restrained – interpretation of EU law80.

There are notable patterns, however, in the Court’s chosen modes of procedure in cases involving linguistic issues. It is worth noting, for instance, that the arguments made by the ECJ in similar early cases have been evoked time and time again throughout the past fifty or so years. As early as 1967, in Van der Vecht81, the Court upheld the importance of considering Community Regulations in light of all the 79

Baaij (n 48) 39.

80

Roman Herzog and Luder Gerken, ‘Stop the European Court of Justice’ EUObserver (10 September 2008) < http://euobserver.com/opinion/26714> accessed 19 February 2018.

81

Van der Vecht (n 26).

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existing language versions thereof, extending this, in Stauder82, to Decisions addressed to all Member States. The Court has reiterated the importance of uniform application and interpretation of European legislation on countless occassions, stating that this should be interpreted on the basis of the author’s real intention and in light of the aim that such legislator seeks to achieve. In other cases, the CJEU stated that where there is a divergence between various language versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms a part.

These principles continue to feature as justifications in the Court’s most recent decisions relating to variances between the various language texts of EU law. The CJEU, furthermore, cites previous caselaw in support of its arguments and, like many authors writing on the subject, appears to favour certain cases, citing such latter cases more frequently than it does others. It must be noted here that there is no official doctrine of precedent in EU law but, as Mc Auliff observes, the CJEU ’does appear on occasion to regard its previous decisions as establishing law that should be applied in later disputes’83 without establishing, however, what she refers to as a ’formal hierarchy in the strictest sense’.

A straightforward solution to the lack of certainty pinpointed above is unlikely to be found. Nonetheless, a suggestion in this regard could be the establishment of guidelines to be followed in the determination of such cases, although such a suggestion may indeed be a cursory one, and ultimately, a futile endeavour since the Court has built upon and solidified at least two distinct methods to resolve linguistic issues over the years. Both approaches favoured by the Court in such cases (i.e. the literal and the teleological approach) allow for logical and well-thought-out arguments, and the mere fact of two possible perspectives allows for a more flexible examination of the legislation in question by the Court. Given the vast jurisprudence of the Court on linguistic issues, any such guidelines would perforce have to identify both the literal and the teleological approach as pos82

Stauder (n 31).

83

Karen Mc Auliff, ‘Precedent at the ECJ: The Linguistic Aspect’ in Michael Freeman and Fiona Smith (eds) Law and Language: Current Legal Issues, Volume 15 (OUP 2013) 98.

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sible courses of action. This may, however, prove problematic in the event that interpreting any particular EU legislative text on the basis of one approach leads to one conclusion, which interpreting the same text on the basis of the other approach leads to another.

5. Conclusion Law and language in the context of the EU are far from mutually exclusive: indeed, they are intrinsically linked, and theirs is a symbiotic relationship. As with any other law, European legislation, which creates rights and obligations on the EU Member States as well as on the millions of individuals residing within them, must perforce be expressed through the medium of language. European legislation must be also be available to and understood by those it binds: thus, the fact of multilingualism in the EU, particularly as regards the availability of European legislation in various languages, guarantees democracy and ensures transparency, ensuring, in a few words, that it is finally a case of Brussels and not Babylon.

Multilingualism additionally serves a symbolic purpose: Member States which have relinquished a part of their sovereignty are not also called to surrender their respective national identities. Article 55 TEU states that the Treaty is drawn up in a single original in twenty-four languages, with each version being equally authentic.84 Article 1 of Council Regulation No 1/58 declares such twenty-four languages as the official and working languages of the European Union. The official languages are thus deemed to be equal, and in theory at least, there is no lingua franca or any one language which is primus inter pares. The fact of multilingualism thus arguably perseveres towards and preserves a scenario of unity in diversity, certainly as regards the linguistic regimes in place in the EU institutions as well as the enactment and availability of EU legislation in various languages.

Within such a framework, the role of the CJEU becomes essential.

In terms of Article 342 TFEU, the Court is the ultimate interpreter 84

Consolidated Versions of the Treaty on European Union (n 8).

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of EU legislation.85 The Court clearly respects the principle of multilingualism, confirming the support which other EU institutions have sought to give to the various official languages, and striving to uphold the principle of equal authenticity of these languages as enshrined in Article 55 TEU. There are no set guidelines as to how the CJEU should determine cases involving linguistic discrepancies between the various language versions of EU legislation, and the Court tends to adopt different methods of interpretation to determine the true meaning thereof. To this end, while there is a lack of certainty as to which approach the Court will opt for in any given case involving a linguistic discrepancy between the various language versions of an EU legislative text, it is possible to identify two distinct methods favoured by the Court in its determination of such cases, as well as several principles it upholds in related judgements. In this regard and in its decisions, the Court declares its purpose and strives to seek out the legislator’s real aims and intentions in light either of the various language versions of a text of EU law, basing itself either on the majority or the clearest texts, or in light of the purpose and general scheme of the rule in question, considering also, therefore, the context. This challenging task of interpreting EU law in a uniform manner is both a reminder and a reflection of the complexity of the European project, of its success, and of European countries’ continues efforts to maintain and uphold the Union’s official motto of ‘unity in diversity’.

85

Consolidated Version of the Treaty on the Functioning of the European Union (n 15) Article 342.

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A discussion of proportionality in selected cases of EU Fundamental Rights Natasha Buontempo

Natasha Buontempo holds a first degree in Law and Theology, an LL.D and a Master’s degree in Law. She is a resident academic within the Department of European and Comparative Law at the University of Malta, teaching EU Law, EU Labour Law and Fundamental Rights Law. Her research interests are EU Law, EU Labour Law, Constitutional and Human Rights Law, Administrative Law, Comparative European Law and Legal Philosophy. She is presently researching for her Ph.D in Comparative European Law and legal philosophy. She also currently serves as national legal expert for studies conducted by the European Commission and has served as Deputy Chair in the Council Working Party on Fundamental Rights (FREMP) during Malta’s Council EU Presidency. She is also a member of the Chamber of Advocates, associate member of the Employment Law Association (UK) and a member of the Malta European Law Association (AMSDE).

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This article discusses the principle of proportionality applied by the European Union Courts to a selected number of fundamental rights cases. The selection is based mainly on the pertinence with which the Court applies the principle of proportionality with a view to highlighting the Court’s method of approach and reasoning. The paper discusses the author’s insights into this method of approach.

1. Introduction

T

he principle of proportionality and proportionality analysis is one method by which adjudicators attempt to solve conflicts between conflicting fundamental rights, whether individual or collective. This principle may be defined as an adjudicative method or tool, applied in cases concerning fundamental rights and their restrictions. Many national constitutional Courts and supra-national Courts apply, to a varying degree, the principle of proportionality when adjudicating fundamental rights cases alleging an illegitimate restriction or an outright violation.1

2. The Traditional application of the Principle of Proportionality The principle of proportionality has most probably been derived from German Administrative Law (Verhältnismäßigkeitsgrundsatz).2 In German law, the principle of proportionality is regarded as a constitutional norm.3 It is a means by which measurement may be made 1

For an analysis of the application of proportionality by various European national Courts and the supra-national courts see Nicholas Emilou and Francis G Jacobs, The Principle of Proportionality in European Law(Kluwer Law International 1996).

2

ibid 24.

3

Dieter Grimm, ‘Proportionality in Canadian and German Constitutional Jurisprudence’ [2007] University of Toronto Law Journal 57, 386.

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of the varying degrees of conflict between two colliding rights or freedoms, protected constitutionally. The principle of proportionality requires that the ends used in order to achieve a given aim be proportionate. Thus, where a fundamental right or freedom is limited in favour of a public interest or another fundamental right, by means of a limiting measure, a proportionality analysis is carried out to determine the legitimacy or otherwise of such limiting measure. To this end, the traditional proportionality analysis involves three tests: (i) suitability or appropriateness of the limiting measure; (ii) the necessity of the limiting measure in the given circumstance, and (iii) proportionality strictu sensu, involving a balancing exercise.

The suitability test, also referred to as the appropriateness test,4 involves an examination to determine whether the limiting act is capable of achieving the aim in view: the limitation or restriction of the right must be capable of furthering the pursued goal, otherwise it will fail at the suitability stage. According to Alexy, a German legal philosopher and a proponent of the proportionality principle, the suitability test, has the status of a negative criterion because rather than settling the issue, it excludes those means which are unsuitable in relation to the aim or purpose.5 It serves to exclude those means which obstruct a right without promoting another.6 The necessity inquiry involves the determination whether the means chosen were the least restrictive of those available.7 This is based on the premise that means which are not necessary to reach the objective of the law cannot justify a limitation of fundamental rights.

4

Tor-Inge Harbo, ‘The Function of the Proportionality Principle in EU Law’ [2010] 16(2) European Law Journal 158, 165.

5

Robert Alexy, A Theory of Constitutional Rights (Oxford University Press 2004) 398.

6

Matthias Klatt and Moritz Meister, The Constitutional Structure of Proportionality (Oxford University Press 2012) 9.

7

The German Federal Constitutional Court distinguished between the ‘least restrictive means’ test and the balancing test for the first time in 1958 in the leading case Apothekenurteil, BVerfG June 11, 1958, 7 BVerfGE 377. The Court here held that in order to attempt to maximise the demand made by the citizen for the protection of his right and the demand made by the authorities to protect the public, the most effective method would be to carefully balance (Abwägung) the meaning of the two opposed interests. Proportionality became constitutionalised in Germany in the sixties and seventies.

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This is due to the fact that some other means could have been used which would have reached the aim in view without the need to apply such a degree of restriction.8 Necessity bans unnecessary sacrifices of constitutional rights.9 The final stage in the proportionality principle is the application of the proportionality strictu sensu test. This test, also referred to as the law of balancing,10 traditionally involves three considerations: (i) establishing the degree of non-satisfaction of or detriment to a first principle or constitutional right;11 (ii) establishing the importance of satisfying the competing principle or interest; and (iii) establishing whether the importance of satisfying the latter principle justifies the detriment to or non-satisfaction of the former.12

3. The CJEU’s Approach to Proportionality What follows is a discussion of types of approaches to proportionality which have been identified in this study. The manner in which the CJEU approaches the principle of proportionality in fundamental rights cases seems to suggest that the most decisive test is the necessity test. This does not mean that the proportionality strictu sensu test is not applied by the Court. However, it would be incorrect to state that the third stage of the proportionality principle forms an integral part of its examination at all times. One reason why the necessity stage seems to be predominant in the CJEU’s application of the principle of proportionality may rest mainly on the wording contained in Article 5(4) TEU. Here it is stressed that by observing the principle of proportionality, Union action is not to exceed what is necessary for the achievement of the aim pursued.13 This is also stressed in Article 8

Grimm (n 3) 393.

9

Alexy (n 5) 399.

10

ibid 401.

11

Alexy (n 5) 405 states that this could also be defined as ‘intensity of interference’ .

12

ibid 401 and Klatt (n 6) 10.

13

Article 5(4) TEU states ‘Under the principle of proportionality, the content and form of Union

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52(1) of the Charter.14 Four types of approaches have been identified as broadly capable of categorising the Court’s approach to proportionality in fundamental rights cases: (i) the full three-stage test approach, (ii) the proportionality strictu sensu approach; (iii) the legitimate aims approach, and (iv)the least restrictive means approach. The choice of this sequence is intentional as it allows a coherent continuation of the argument in this paper. The case law has been selected on the basis of the four approaches identified.

4. The Full Three-Stage Test Approach The principle of proportionality was discussed comprehensively by the Court in the early case Internationale Handelsgesellschaft.15 This case is primarily a landmark judgement in that the Court makes it amply clear that; ... the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the Constitution of that State or the principles of its constitutional structure.16 The allegations made in this case were that the Regulations

action shall not exceed what is necessary to achieve the objectives of the Treaties. The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality’.

14

Article 52(1) of the Charter states ‘Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’.

15

Case C-11/70 Internationale Handelsgesellschaft mbH v. Einfhur-und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125.

16

ibid.

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120/67/EEC17 and 473/67/EEC18 violated the German constitutional principles of freedom of action and of disposition and of economic liberty, and of proportionality. It was claimed that the obligation to import or export cereals on the basis of the granting of an import or export licence, and that of depositing an amount of money which could be forfeited in case of non-performance, constituted an excessive intervention in relation to the protected rights under the German Basic Law. The Court dealt with the first allegation that the requirement of forfeiture of the amount deposited in the eventuality of non-exportation, constituted a disproportionate measure. The way it approached this allegation was by primarily declaring that, on the basis that respect for fundamental rights formed an integral part of EU law, it would examine whether the requirement for a deposit violated such rights. It first sought to establish whether the impugned provision requiring the deposit was legitimate. It determined that such a system was effective because the Community would gain precise knowledge of the intended transactions in exports. It went further in justifying why the aim was a legitimate one. It held that knowledge of transactions and knowledge of the state of the market was essential for the Community to be able to guarantee the functioning of the system of prices within the implementation of the Common Agricultural Policy. The Court determined that the precise data, including statistical information and precise forecast on future imports and exports, were therefore necessary. The Court did not so much as state that it was engaging in the first step of proportionality analysis, i.e. suitability.

However, it did precisely this. The system of deposits as envisaged by the regulations was therefore legitimate.19 17

Council Regulation (EC) 120/67/EEC of 13 June 1967 on the common organisation of the market in cereals [1967] OJ 2267/67.

18

Council Regulation (EC) 473/67/EEC of 21 August 1967 on import and export licenses for cereals and processed cereal products, rice, broken rice and processed rice products [1967] OJ 204/16.

19

It is important to point out that ‘legitimacy’ or ‘legitimate aim’ as applied by the CJEU in the proportionality principle is not connected to the legitimate aims test performed by the ECtHR, which is a very superficial test usually intended to establish that the measure being impugned has its foundations in national law and that the latter is compatible with the rule of law. See for example Olsson v Sweden App 10465/83 (ECtHR, 24 March 1988), (if there is no domestic

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It is important to note here that although the Court, in this judgement, made use of the term ‘legitimate’, it is actually applying the ‘suitability’ test under the traditional first stage of the proportionality principle. The CJEU analyses the reasons why such a measure was suitable, relative to the aim it was intended for. According to Alexy, the suitability test is a negative test which serves to exclude measures which do not further the aim to be achieved. In this case the CJEU took a positive approach by acknowledging and supporting the reasons why the measure was legitimate. In this case the aim of the measure was clear.

The second exercise undertaken by the Court within proportionality analysis was to determine whether this system could have been overridden by a less burdensome one. The Court considered two alternative modes of action proposed by the complainants: (i) a system of mere declaration of exports excluding forfeiture, and (ii) a system of fines applied a posteriori. In the first instance the Court held that a system of mere declaration of exports and of unused licences would not allow the Community the precision of knowledge on trends in the movement of goods. This is because the application for the licences was voluntary and if subsequently the trader decided not to affect the exports originally agreed to, the Community would not have such precise data.

In relation to the second proposition, the Court held that fines imposed a posteriori would entail considerable administrative and legal complications at the stage of decision and execution, since the traders involved may not be reachable by reason of their residence within the Community territory. The Court noted that the Regulation specifically imposed the obligation on all applicant traders irrespective of their place of establishment in the Community. In this case the Court examined the proposed alternative methods and found that they lacked the efficacy required to reach the aim in view even though they constituted a less burdensome measure on the traders. law which allows the interference to a protected right the Court may find a violation, as in Halford vUKApp 20605/92 (ECthR,25 June 1997) and Kopp v Switzerland App 23224/94 (ECtHR, 25 March 1998); see also Mehemi v France App 53470/99 (ECtHR, 26 September 1997.

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In the necessity stage, it would appear prima facie that the Court did not look at alternative means as one would expect under the traditional proportionality principle. It did not approach the necessity test by determining whether the means chosen were the least restrictive from those available. By determining that the aim in view was suitable, it seems to have decided a priori that it was also necessary.

However, at closer analysis, the Court effectively did consider the alternatives proposed by the complainants in relation to simplicity and efficacy and evaluated the two propositions of the complainants with reference to whether or not the suitable aim intended would still be achieved. The CJEU determined that such an aim would not be reached if the proposed simple procedures were adopted. It is submitted here that the weight that the Court gave to the aim of making sure data was available on the trends of the free movement of goods far outweighed any other aim or restriction which this caused. This is very understandable, given that at the time, the flourishing of the free movement of goods was the major aim of the Community.

The third allegation brought forward by the complainants was that the forfeiture of the deposits was excessively burdensome on them, and that such forfeiture did not yield the usefulness of the information claimed by the Commission. In considering the claim of excessive burden, the Court engaged in a weighing exercise, akin to the proportionality strictu sensu stage, but different in a few ways, as will be discussed. It is acknowledged that the Court did examine whether the measure constituted an excessive burden on the traders but it did so in a strange way. The Court primarily held that in reviewing whether the forfeiture was excessively burdensome, it would not take into account the actual deposit but it would only consider the costs and charges involved when placing the deposit. The reason for excluding the amount of the actual deposit was that applicant traders were adequately protected under the provisions of force majeur, i.e. in case of failure to export not owed to the fault of the trader (wide interpretation). It then examined whether the burden suffered by the traders would be excessive in relation to the value of the goods in question and determined that it was not. The Court does not give any further details as to why this was not so but only looked at the 292

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value of the goods in order to weigh out whether the forfeiture was burdensome. It did consider the allegation that the data collected was not effectively useful to the Commission, but it did not include it in this weighing examination. The Court held that this allegation was irrelevant, without further explanation. It must be noted however, that the aim for the collection of data was held by the Court as being imperative in the initial stage of the test. The main question which arises here is whether or not the Court should have considered the burden placed on the traders in relation to the aim to be pursued. In such a case, an examination of the usefulness of the data collected would have been pivotal since this would have challenged the practical aspect of the effectiveness of the aim. In theory the aim was both suitable and necessary, but how effective was the achievement of this aim in practice? Was the benefit alleged by the Commission, relative to the collection of precise data, a tangible one? And if so, would this actual benefit have outweighed the burden placed on the trader in case of fault-based forfeiture?

It is submitted that the examination made by the Court of the suitability and necessity of the measures imposed, was quite precise.

The Court adapted the first two stages of proportionality analysis to the requirements and circumstances of the case. The final examination regarding the excessive burden claim leaves unanswered questions in terms of explanatory discourse which led the Court to arrive at the conclusion that it did. Not only that, but the elements which the Court considered in order to determine whether the burden was excessive or not, also leave much to be desired. The last test is effectively a weighing exercise, but the weighing does not involve the rights and interests of the parties involved, i.e. the limitation on the rights of the traders, versus the benefits derived by the Community for the common good or public interest, in this case. Therefore, it is quite safe to say that in this case, although the third stage of the proportionality enquiry was engaged in by the Court, the manner of application was a weak one.

In Sky Österreich, the Court was faced with a challenge to Article

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15(6) of Directive 2010/13 on Audio Visual Media Services.20 Article 15 obliges Member States to allow broadcasters to broadcast short news reports which they can take from broadcasters who have the exclusive rights over such broadcasts. The nature of the short broadcast must be of high interest to the public. The Directive requires that such access be fair, reasonable and non-discriminatory. The article also provides that Member States are to ensure the modalities and conditions to be defined with regard to compensation arrangements. It also requires that compensation is not to exceed the additional costs directly incurred in providing the access.

The dispute which arose in this case regarded the payment of compensation of 700 Euros per minute by ORF to Sky for broadcasting short news reports in relation to the Europa League matches between 2009 and 2012. KommAustria, the Austrian communications regulator, had decided, on the basis of Article 15(6) of the Directive,that SKY was not entitled to demand compensation greater than the additional costs incurred for granting the short broadcast to ORF. This decision was challenged before the Budeskommunikationssenat which had jurisdiction to decide whether the right to broadcast short news taken from the exclusive broadcaster should be granted, and the conditions in relation to this. The competence of the Budeskommunikationssenat was envisaged by Article 5 of the Federal Law on Exclusive Television Broadcasting Rights, until the amendments which took place to Directive 2010/13, particularly Article 15(6), requiring compensation to be granted only in relation to the costs effectively incurred. ORF claimed that no costs were effectively incurred by SKY to grant them short broadcasting rights. The Budeskommunikationssenat was doubtful whether Article 15(6) prohibiting any additional compensation for the granting of short news broadcasts infringed the right to property on the basis of the proportionality principle. The Budeskommunikationssenat reasoned that it was unfair to not require the payment of compensation to SKY, who were the exclusive right holders, when such exclusive rights had been acquired before the Directive was amended, and when ORF had applied for an interference of such rights after the new amendments to the Directive had come into 20

Case C-283/11 Sky Österreich GmbH v Österreichischer Rundfunk [2013] ECLI:EU:C:2013:28.

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force. The Budeskommunikationssenat stayed the proceedings and asked the CJEU whether Article 15(6) was compatible with Articles 16 (Freedom to Conduct a Business) and 17 (Right to Property) of the Charter of Fundamental Rights and Article 1 (Right to Property) of the First Protocol of the ECHR. The CJEU primarily held that Article 17 of the Charter on the right to property did not afford any protection to SKY because the Directive prevailed over any acquired legal position by SKY prior to its enactment. This is reflective of the supremacy of EU law whereby any conflicting positions are to be set aside and EU law is to be applied.

The Court then considered Article 16 of the Charter which affords the freedom to conduct business and the freedom to exercise an economic or commercial activity. The Court first established that the requirement of Article 15(6) of the Directive prohibiting compensation in relation to the costs that the exclusive broadcaster had incurred in acquiring exclusive rights amounted to an interference with the right to freely conduct a business under Article 16 of the Charter. It reminded that this right, however, is not an absolute right, and can be interfered with when such interference is made in the public interest.

The Court made reference to the principle of proportionality as enshrined in Article 52(1) of the Charter which allows the restriction of fundamental rights in pursuit of the general interest or the need to protect the rights and freedoms of others.

The Court first established whether the requirement in Article 15(6) of the Directive affected the core right protected by Article 16 of the Charter, and held that the core of such a protected right remained unaffected because it did not prevent the exclusive broadcaster from exercising its business activity, including payment for its own broadcasting services or to another operator. It then went on to consider the proportionality infringement argument raised by the Budeskommunikationssenat, making reference to past decisions where the Court emphasised the least restrictive means for the attainment of Union objectives, as a main component of the proportionality principle.

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The Court, first engaged in a suitability and legitimate aims test.

Once again, as in the Internationale Handelsgesellschaft Case, it took a positive approach when considering the suitability of the impugned article, emphasising the importance of the right being protected by it in relation to the dissemination of high interest news to the public. The Court emphasised the importance of the right to receive information by the general public protected by Article 11(1) of the Charter. It also held that the fact that there is an increase in the marketing of exclusive broadcasting rights in the EU gives rise to a restriction on the access of the general public to receive information of high importance. Such exclusive broadcasting contracts also affected pluralism of the media, itself protected under Article 11(2) of the Charter. The Court then looked at the legitimate aim of Article 15(6) which effectively aims to protect pluralism of the media and the right to receive information by the public. The Court held that the aim in Article 15 was legitimate.

On the basis of this, the Court then discussed the reasons why Article 15(6) was also, consequently legitimate. It held that Article 15(6) allows any broadcaster to broadcast important news to the general public by allowing them access to such news, whether or not held by exclusive broadcasters. This ensures the dissemination of important news, which is not incumbent on the commercial power or the financial capacity of the broadcasting entity. This is a very objective observation. The Court considers the receiving of news by the general public as an imperative right, and that the dissemination of news should not be subject to commercial strength. Here one may notice that the right to receive information had already been ascribed a greater value by the Court than the freedom to conduct business, which essentially entails financial considerations. The guarantee of the receiving of news trumped any other considerations. At this initial stage of legitimate aims testing, the Court is already seen engaged in a comparative (but not a fully-fledged balancing) exercise of conflicting rights. The right of the general public to receive information is being weighed against the right to freely conduct a business, in terms of the negative impact which the former right would suffer if the latter is upheld.

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test (suitability), the Court already applies a certain degree of rights weighing, which essentially paves the way to the balancing exercise in the third stage.

The Court then analysed the necessity of Article 15(6) and considered an alternative less restrictive measure: that of allowing the payment to exclusive broadcasters for providing the broadcast to the non-exclusive rights holders. In examining this, the Court noted that such measure could give rise to obstacles preventing the broadcasters from actually acquiring the news: (a) the method adopted for compensation to be paid; and (b) the financial capacity of the broadcasters.

The method adopted could be in such a way as to deter the broadcasters from actually being able to acquire the news, and if the calculated compensation was too high, the broadcasters might not be able to afford such payments. This would result in a considerable decrease in the access to information by the general public. After considering this alternative, the Court turned to the efficacy of Article 15(6) stating that it guarantees the right to receive and disseminate news on the basis of equality irrespective of any limiting circumstances, whether financial or otherwise. Under the traditional necessity stage test, the aim of the exercise is to determine whether the decision-maker has chosen the less intensively interfering means.21 This means that the measure itself is to be examined and compared to alternative measures. The exercise involves an examination of the hypothetical alternative measures (whether proposed by the parties themselves, or of its own motion) and decides whether to discard them or not.

Thus the Court does not analyse the impugned measure itself in terms of restriction to the right by comparing it to hypothetical alternatives but examines alternatives and decides how effective they would be in reaching the legitimate aim.

In its last stage of the analysis, the Court discussed the allegation of disproportionality contained in Article 15(6) and looked at the two competing rights: the freedom to conduct a business and the right of the general public to receive information and the pluralism of the 21

Kai Möller K, ‘Balancing and the Structure of Constitutional Rights’ (2007) 5 International Journal of Constitutional Law, 445.

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media. The Court engaged in a balancing exercise between the two rights. It did so by taking into account several requirements imposed

by Article 15(6) of the Directive. It primarily noted how the article places limitations on the non-exclusive broadcasters: (i) the fact that the Directive requires short extracts of news to be broadcast reflected the confined parameters within which non-exclusive rights holders may broadcast from the signal belonging to the exclusive broadcaster.

This meant that the non-exclusive broadcasters may only broadcast within strict limits; (ii) The news could only be broadcast during a news programme and not during any television programme; (iii) The broadcast allowed to them cannot exceed ninety minutes, and (iv) the time limits for transmission are also defined; (v) the fact that the non-exclusive broadcasters were obliged to identify the source of the information they were broadcasting and that this benefited the exclusive broadcasters in terms of publicity. The Court then went on to consider the position of the exclusive rights holders under this article. It noted that the exclusive broadcasters are not prohibited from charging for the use of their rights and that when entering into a contract of exclusivity, the exclusive broadcasters could set-off any eventual payments due to them for the re-transmission of news by non-exclusive broadcasters. Whether such set-off is easily identifiable and quantifiable by the exclusive broadcaster a priori was not discussed by the Court. Perhaps this could have been delved into more by the Court to determine whether this set-off was practical and effective. At this stage of the analysis it is already clear where the Court stands. The Court noted once again that the increased marketing of exclusive broadcasting rights has the effect of reducing access by the public to high interest news. On the basis of this final exercise, the Court decided that the measure was not disproportionate in the light of the aims pursued but it effectively ensures a fair balance between the various rights and freedoms at issue.

In this case, the Court engaged in the full three-stage test identifying each stage in the process. Van Gerven believes that the Court does not always identify the elements of the test.22 In this case how22

Waler Van Van Gerven, The Effect of Proportionality on the Actions of the Member States of the European Community: National Viewpoints from Continental Europe, in Evelyn Ellis, The Principle of Proportionality in the Laws of Europe (Hart 1999) 39.

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ever, the Court did identify each stage of the proportionality analysis in a systematic manner. The Court’s approach to the first stage of suitability and legitimate aim is a positive approach type, rather than the negative approach type propounded by Alexy. This is because the Court does not engage in an exclusionary exercise, rather upholding the importance of the rights being protected, as viewed in relation to the competing rights being claimed. The second stage of necessity may be said to be close to the traditional necessity stage test, in that the Court essentially examines the effects and impact of the measure by considering alternative means and their impact in terms of the aim pursued. The final balancing stage test, in this case, amounted to a weighing of the costs and the benefits in relation to the rights being claimed. It is submitted that the Sky Österreich ruling is a good example of a thorough application of the proportionality principle by the Court.

The comparison of the effects of article 15(6) on the exclusive and non-exclusive rights holders respectively is a very systematic and thorough exercise which the Court engaged in, in order to determine whether the situation tilted the balance on one side unjustly. However, Craig doubts whether the proportionality strictu sensu stage forms part of the Court’s proportionality test.23 A case in point is the Hautala Case, where Craig argues that the decision, although based on the principle of proportionality, was decided on the first two prongs, suitability and necessity.24 It will be argued however, that that the Hautala case effectively applied only the third stage of proportionality analysis completely foregoing the first two stages.

5. The Proportionality Strictu Sensu Approach The Hautala Case concerned Heidi Hautala, an MEP who had requested access to Working Party Council documents in relation to 23

Craig P., op. cit. p. 591

24

Craig P., op. cit., p. 604

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the exportation of arms by the EU.25 The Council refused access on the basis that the documents contained sensitive information which would undermine the public interest as regards public security. Ms Hautala challenged the Council’s decision on the basis of the Union’s commitment to grant the widest possible access to documents held by the Council and the Commission. The Court, considering the Council’s argument that the principle of access to documents applied only to documents as such and not to the information contained within them, considered whether partial access to the information could be granted. The Court noted that access to documents is a general principle of law. Today, it is enshrined in Article 42 of the Charter.

The Court noted that where a general principle is established, any exceptions are to be construed strictly. It then went on to consider the plea based on the principle of proportionality, noting that it required that ‘derogations remain within the limits of what is appropriate and necessary for achieving the aim in view’. At this stage, the Court did not go into a consideration of appropriateness and necessity but immediately engaged in a brief balancing exercise, which at appeal stage, the ECJ also endorsed fully: ….the principle of proportionality would allow the Council in particular cases where the volume of the document or the passages to be removed would give rise to an unreasonable amount of administrative work, to balance the interest in public access to those fragmentary parts against the burden of work so caused. The Council could thus, in those particular cases, safeguard the interests of good administration.26 The Court engaged in a weighing exercise. It weighed the pros and cons for the consideration of partial access to documents. The Court looked at the two main conflicting rights: (i) the right of the Council not to divulge sensitive information which could threaten public security; and (ii) the right of the general public to access institutional documents. The Court seems to have applied a balancing by 25

Case C-353/99 Council of the European Union v Heidi Hautala [2001] ECR I-09565.

26

ibid para 70.

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apportionment method, awarding a degree of the right to each of the contenders: (i) the Council was allowed to retain information which it deemed sensitive; and (ii) the MEP (also the general public) was allowed partial access to the information contained in the document.

In this case, there does not seem to be any specific treatment of the three stages of proportionality, particularly the first two stages of suitability and necessity. The Court did not engage in these two stages in any way. On the contrary, it focused directly on the application of the proportionality strictu sensu stage.

One question which arises at this stage is whether the court engaged in such a balancing exercise because there was no requirement for the first two stages of the test. It did not enquire into whether the decision taken not to divulge was appropriate and necessary. It did not question the contents of the documents in any way to decide the appropriateness and the necessity of the decision. One explanation would be that the contents were to that day still a Union secret and therefore such an exercise could not have practically been made.

However, the Court could have examined the appropriateness of the provision serving as an exception to the principle of transparency, but again this examination would have required a context which, at the time was almost completely absent except the knowledge that the documents contained sensitive information on the exportation of arms. The Court did not really have any other option than to apply the proportionality balancing stage to determine the costs and benefits of divulging the information contained in the secret documents.

This shows that the Court will make recourse to the third limb of the proportionality principle when recourse to the first two stages is not practicable. It also reflects the Court’s willingness to apply a balancing exercise in cases which require the application of the proportionality principle. In this case, the appropriateness test was absent.

However, in the Hauer case, one can clearly see that the Court relied exclusively on this first limb to determine that a violation had not taken place.

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6. The Legitimate Aim Approach In the Hauer case, Ms Hauer was the owner of a piece of land and had applied to plant vines.27 The Community at the time was adopting a new policy for wine production with the aim of reducing surplus wine and increasing wine quality affordable for both the manufacturer and the consumer. A Regulation was adopted prohibiting the new planting of vines, which came into force after Ms Hauer had submitted her application.28 Two of her pleas rested on the fact that under German law the Regulation violated her right to property and her right to freely conduct a business.

The Court, inter alia, considered her pleas by primarily determining whether the Regulation pursued legitimate aims. It did so by extensively considering two facts: (i) the fact that all Constitutional traditions of the nine Member States at the time envisaged as legitimate the restriction on the right to property for the public interest and (ii) the broader aims of the Common Organisation of the market in wine which included a structural improvement in the wine-producing sector.

The Court held that the restriction contained in the Regulation was lawful in the constitutional structure of all the Member States. In its second consideration it identified a double objective in the public interest: (i) that the aim of the Community was to establish a lasting balance on the wine market at a price level which was profitable for producers and fair to consumers, and (ii) to obtain an improvement in the quality of wines marketed. The Court noted that the policy planned on enabling Member States to forecast planting of vines and production of wine and for this purpose certain measures, including the restriction contained in the present Regulation, were required.

The Court then went on to consider the situation as it would stand, had there not been any such measures. It noted that the cultivation of new vineyards in a situation of continuous over-production would not have any effect, from the economic point of view, apart from in27

Case C-44/79 Liselotte Hauer v Land Rheinland-Pfalz [1979] ECR 3727.

28

Council Regulation 1162/76 of 17 May 1976 on measures designed to adjust wine-growing potential to market requirements [1976] OJ L 135/32.

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creasing the volume of the surpluses. It also considered the effect of allowing Hauer to plant her vines on the basis that her application had been submitted prior to the coming into force of the Regulation.

It held that if this were to be allowed, the implementation of the policy would be at risk as it would be more difficult for the Community to implement such policy, if the national legislation were to be taken into account. The Court held that the infringement was justified on the basis of objectives of general interest.

It is interesting to note in this case, that the Court decided this case primarily extensively examining the legitimate aim of the Regulation, as well as the main policy upon which it rested. Even when it considered an alternative situation, that which pertained at that specific moment, it did so by reference to the aim which the policy pursued. It did not address alternative means which would achieve the aim in view and which would decrease the burden of the restriction of Hauer’s right. The Court put a heavy emphasis on the objectives of general interest rather than on Hauer’s right to property. The Court stopped its analysis here despite declaring initially that it would examine whether the provisions ‘constitute a disproportionate and intolerable interference with the rights of the owner’. The Court did not examine proportionality strictu sensu in this case. Once it established the legitimate aim and the necessity of it, it concluded the case.

The question which arises at this point is whether the Court should also have examined the right to property and whether it should have carried out a weighing exercise, confronting the objectives of general interest with the individual right. It is submitted that from the outset the Court ascribed a very heavy weight to the policy on wine production and its aims. It did so in such a way that the individual right of Ms Hauer seemed petty, compared to the gains the Community would eventually make from such a policy.

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7. The Least Restrictive Means Approach The Digital Irish Case may be said to be representative of a standard formula, applied by the CJEU, in cases of derogations to the general rule.29 Where a derogation from the general rule is adopted by the EU legislature and a claim that it violates fundamental rights is put forward, the usual standard formula of approach by the Court is twofold: (i) it examines whether the impugned legislation constitutes an interference with the right being claimed; and (ii) decides whether the interference is justified according to the principle of proportionality.

In such a case, the Court seems to apply the first two stages of the proportionality principle, based on the familiar phrase that the measures ‘be appropriate for attaining the legitimate objectives pursued by the legislation at issue and do not exceed the limits of what is appropriate and necessary in order to achieve those objectives’.30 The Digital Irish Case may be said to be a perfect example of a very thorough scrutiny by the Court. In this case the Court leaves no stone unturned to determine whether the impugned Directive violates a fundamental right protected by the Charter. This case essentially concerned the compatibility of Directive 2006/2431 with Article 7 of the Charter on the right to respect for private life. The main objective of the Directive was to retain data provided by providers of publicly available electronic communications services for the purpose of crime prevention, investigation, detection and prosecution including organised crime and terrorism. The Directive allowed national authorities to access such data for this purpose. The question was raised whether this was compatible with Article 7 on the right to 29

See also joined cases C-203/15 and C-698/15 Tele2 Sverige AB (C-203/15) v Post-och telestyrelsen and Secretary of State for the Home Department (C-698/15) v Tom Watson and Others ECLI:EU:C:2016:572.

30

Joined cases C-293/12 and C-594/12 Digital Rights Ireland Ltd (C-293/12) v Minister for Communications, Marine and Natural Resources and Others (C-594/12)v Kärntner Landesregierung and Others ECLI:EU:C:2014:238.

31

Directive of the European Parliament and the Council 2006/24/EC of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC [2006] OJ L 105/54.

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respect for private life. Such access allowed inter alia, the national authorities to identify the identity of the subscriber, their location, time of the communication, and the place from which the communication took place.

The Court started by making certain preliminary observations. It noted that the nature of the data retained allowed very precise conclusions to be drawn concerning the private lives of persons including their daily habits, residence, the activities carried out, their social relationships, and social environments. It noted that although the Directive did not allow for the retention of the content of the communication, it might affect the exercise of the freedom of expression of the subscribers and registered users. At this first examination, the Court concluded that the Directive affected the private life of the subscribers. It then went on to determine whether this constituted an interference with the right to private life protected by Article 7 of the Charter.

The Court established that by requiring such retention of data, whether or not the information was sensitive or whether the persons concerned had been inconvenienced in any way, the requirements of the Directive constituted an interference with the right to private life. In addition, the access of the competent authorities to such data constituted a further interference with such right. The Court also considered the fact that since such retention of data was unknown to the subscriber, it would have the effect of generating in the minds of the persons concerned the feeling that their private lives were the subject of constant surveillance.

The Court first started by examining the appropriateness of the requirement for the retention of data. It noted that such data is a valuable tool to national authorities in relation to criminal prosecutions. The Court established that this requirement was therefore appropriate. The Court also shed light on its approach to appropriateness by stating that the argument that there are several methods of electronic communication which do not fall within the scope of the Directive or which allow anonymous communication, does not make such a measure inappropriate.

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The Court then went on to consider the necessity for the retention of data and it was here where the measure fell. The Court held that such an objective of general interest, however fundamental it was, did not, in itself, justify a retention measure such as that established by the Directive. This was because the fundamental right to the respect for private life could only be interfered with to the extent that this was strictly necessary. The Court held that the legislation envisaging such an interference must lay down clear and precise rules governing the scope and application of the measure in question. Furthermore it must impose minimum safeguards so that the persons whose data have been retained have sufficient guarantees to effectively protect their personal data against the risk of abuse and against any unlawful access and use of that data.

The Court noted that the directive required the retention of all traffic data concerning fixed telephony, mobile telephony, internet access, internet e-mail, and internet telephony. It considered that such requirement applied to all means of electronic communication, the use of which is very widespread and of growing importance in people’s everyday lives. The Directive also covered all subscribers, thus affecting the entire European population. It also noted that the Directive covered, in a generalised manner, all persons and all means of electronic communication as well as all traffic data without any differentiation, limitation, or exception being made in the light of the objective of fighting against serious crime. Additionally, it considered that all persons were liable to have their data accessed including those against whom there was no evidence of criminal involvement. It further pointed out that the Directive did not contain exceptions and that even persons bound by professional secrecy were affected.

The Court noted how the Directive did not provide any limitations whatsoever; it was not restricted to a retention in relation (i) to data pertaining to a particular time period, a particular geographical zone, a circle of particular persons likely to be involved, in one way or another, in a serious crime, or (ii) to persons who could, for other reasons, contribute, by the retention of their data, to the prevention, 306

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detection or prosecution of serious offences. The Directive did not provide for the relationship between the data and the threat to public security. This lack of limitation was also reflected in the fact that there was no objective criterion which was sufficiently serious and by which to determine the limits of the access of the competent national authorities to the data and their subsequent use for the purposes of crime prevention, detection, or criminal prosecutions.

The Directive did not contain substantive and procedural conditions relating to the access of the competent national authorities to the data and to their subsequent use. It did not provide that that access and the subsequent use of the data in question must be strictly restricted to the purpose of preventing and detecting precisely defined serious offences or of conducting criminal prosecutions relating thereto; it merely provided that each Member State was to define the procedures to be followed and the conditions to be fulfilled in order to gain access to the retained data in accordance with necessity and proportionality requirements. Moreover, it did not provide any objective criterion by which the number of persons authorised to access and subsequently use the data retained was limited to what was strictly necessary in the light of the objective pursued. Above all, the access by the competent national authorities to the data retained was not made dependent on a prior review carried out by a court or by an independent administrative body whose decision seeks to limit access to the data and their use to what is strictly necessary. Nor did it lay down a specific obligation on Member States designed to establish such limits.

The Court also noted that the Directive permitted the data to be retained for at least six months and a maximum of 24 months, but it did not distinguish between categories of data based on their possible usefulness in relation to the aim pursued. Neither did it establish objective criteria upon which to retain such data during this period.

The Court concluded that the Directive did not lay down clear and precise rules governing the extent of the interference with the fundamental rights particularly enshrined in Articles 7 of the Charter. Consequently it constituted a particularly serious interference 307

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with those fundamental rights. In relation to the retention of data, the Court noted that the Directive did not provide for sufficient safeguards which ensure the protection of the data retained and it did not state that the data was to be retained within the European Union. This meant that the control, explicitly required by Article 8(3) of the Charter, by an independent authority of compliance with the requirements of protection and security was threatened. The Court concluded that the Directive was invalid because the EU legislature had exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter.

The Court decided this case purely on the suitability and necessity stage. The necessity test in this case is characterised by a thorough scrutiny of the failures and shortcomings of the Directive in relation to what the Court considers to be strictly necessary. The Court is engaged in an indirect comparative exercise between the requirements of the Directive and what it considers to be the least restrictive provisions which would allow for an interference with the right to private life and retention and access of data by national authorities for the prevention and detection of crime. The main weakness of the Directive was that it was too general and consequently any member of the population could be affected, irrespective of whether or not they contributed in any way to crime prevention, investigation, and prosecution. One may say that this stage was perfectly executed by the Court.

8. Schecke In the Schecke cases, two farmers brought an action against local authorities to prevent them from publishing on the internet their personal data in relation to benefits received from the European Agricultural Guarantee Fund.32 They alleged that such publication infringed their right to privacy. The obligation to publish such details 32

Joined Cases C-92-93/09, Volker und Markus Schecke GbR (C-92/09) and Hartmut Eifert (C93/09) v Land Hessen, [2010] ECR I-11063, ECLI:EU:C:2010:662.

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emanated from Article 44a of Council Regulation No. 1290/2005.33 In assessing whether the principle of proportionality had been observed, the Court briefly examined the appropriateness and the necessity of the requirement for publication in the Regulation. The court held that such requirement helped increase transparency in relation to the use of public funds. It then went on to consider the necessity of the measure. It held that at this stage it was necessary to determine whether the Council of the European Union and the Commission had ‘balanced the European Union’s interest in guaranteeing the transparency of its acts and ensuring the best use of public funds against the interference with the right of the beneficiaries concerned to respect for their private life in general and to the protection of their personal data in particular’. However, although the Court seemingly purported to engage directly into the proportionality strictu sensu stage, it did not do so in reality. It performed a necessity test, to determine whether less restrictive means were available.

Once again, the Court reminded that when it came to interference with the private life of the individual, the standard by which it would scrutinise the interference would be based on the ‘strict necessity’ principle. The Court noted that the Union institutions should have sought to strike a proper balance between the interests involved primarily by ascertaining whether publication via a single freely consultable website in each Member State of data by name relating to all the beneficiaries concerned and the precise amounts received by each of them from the respective funds, with no distinction being drawn according to the duration, frequency or nature and amount of the aid received, did not go beyond what was necessary for achieving the legitimate aims pursued. The Court determined that this had not been done and if it had been done, the interference with the applicants’ right to private life would have been less. The Court noted that the EU institutions had not considered methods of publishing information on the beneficiaries which would on the one hand satisfy the public interest in relation to transparency of public funds, and at 33

Council Regulation (EC) 1290/2005 of 21 June 2005 on the financing of the common agricultural policy [2005] OJ L 209/1.

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the same time, cause less interference to the beneficiaries’ right to respect for their private life in general and the protection of their personal data in particular. The Court gave examples of how this could be achieved, by suggesting limiting the publication of data by name relating to those beneficiaries according to the periods for which they received aid, or the frequency or nature and amount of aid received.

The Court here is considering other less restrictive means which could have aided in lowering the interference with the right and which would have achieved the aim in view equally well. This is a perfect example of the traditional application of the necessity test, in my opinion. On the basis of this, the Court concluded that the EU institutions had not ‘properly balanced, on the one hand, the objectives of Article 44a of Regulation No 1290/200534 and of Regulation No 259/200835 against, on the other, the rights which natural persons are recognised as having under Articles 7 and 8 of the Charter’. The case failed at the necessity stage therefore forfeiting the need to move to the third stage.

9. Conclusion Alexy explains that the three stages of the principle of proportionality ‘are optimisation requirements’36 whereby the means used are to be the most efficient and least restrictive but capable of efficiently and effectively achieving the objective. The principle of suitability ‘excludes the adoption of means obstructing the realisation of at least one principle without promoting any principle or goal for which they were adopted’37 because ‘interference with one principle must con34

ibid.

35

Commission Regulation (EC) 259/2008 of 18 March 2008 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the publication of information on the beneficiaries of funds deriving from the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD) [2008] OJ L 76/28.

36

Robert Alexy, ‘Constitutional Rights, Balancing, and Rationality’ (2003) 16 (2) Ratio Juris 131, 135.

37

ibid.

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tribute to the realisation of the other’.38 The necessity stage requires the choice of the less intensively interfering and equally suitable means and proportionality strictu sensu requires equality in cause and effect in that the violation of the right must reflect the same degree of advantage to another right or interest: the greater the degree of non-satisfaction of, or detriment to, one principle, the greater the importance of satisfying the other.

The Internationale Handelsgesellschaft case may be said to be a very good example of the application of the proportionality principle by the CJEU. When the Court was considering the question of suitability or legitimacy of the measures, its approach was to positively appraise the benefits that the measures were intended to yield. Although this stage may be regarded as a simple prima facie exercise, the importance of this stage lies in effectively establishing clearly the intended objective. This stage may prove very useful when the objective is vague or unclear, or disguises an ulterior objective.39 In the same case, during the necessity stage, the Court analysed the alternative means proposed by the applicants and subsequently rejected each of them on the basis that their efficacy to reach the aim would be less than that of the chosen measures. The Court’s approach essentially entailed a comparative approach relying heavily on the ultimate aim being pursued. One must point out that the suitability and necessity stage are tightly linked and the Court, in this case, had established clearly that the measures chosen were suitable to achieve the aim in view.

In Sky Österreich the Court applied the same approach, examining the alternative measures to determine whether they could achieve the aim equally well, upholding the impugned measure as necessary.

38

Möller K (n 6) 455.

39

See Case 41-44/70 NV International Fruit Company and others v Commission of the European Communities [1971] ECR 411, ECLI:EU:C:1971:53, where by analogy, one can see an example of an objective intended to affect a particular class of persons, in this case importers of fruit, being disguised as an objective intended to have general application. In this case, the aim contained in the Regulation should have been contained in Decisions addressed to importers of fruit.

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According to Alexy, proportionality strictu sensu asks whether the end is worth pursuing given what it necessarily costs. The costs, of course, refer to the limitations placed on the rights of the traders, in the Internationale Handelsgesellschaft case and those of the broadcasters (with a consequential effect on the general public) in Sky Österreich. The exercise would entail an examination of the ‘suffering’ or ‘inconvenience’ placed, by the restriction of the right, in relation to the benefits achieved by the aim. One needs to remember that the traders alleged that the means were ‘excessively burdensome’ causing them to carry an excessively burdensome weight. The benefit which would be reaped by the Community would be the effective collection of data for (effective) use. The Court, however, did not consider such benefit when applying the proportionality strictu sensu test.

The comparison carried out was between the alleged burden and the value of the goods. Although the suitability, necessity, and benefits were established earlier on, the Court failed to confront such benefit with the limitation claimed. It did not engage in the attribution of weights to costs and benefit, as required by the proportionality strictu sensu stage.

The same cannot be said for the Sky Österreich case where one witnesses a full balancing exercise between the two competing rights.

In this case the Court did attribute weights to the competing rights determining that there was no disproportion between the costs and the benefits.

In both the Internationale Handelsgesellschaft case and the Sky Österreich case one witnesses the Court adhering quite closely to the traditional proportionality principle. However, one cannot state that the three stage test is invariably applied by the Court. This was seen in the Hautala case where the Court did not delve into the suitability and necessity of the decision, but decided the case by applying only the proportionality strictu sensu test. The latter test seems to have been applied by the Court in order to advance its belief that partial access to the Council documents was the fairer way for both involved. It did so by relying on proportionality strictu sensu which allowed apportionment of an equal degree of cost and benefit to the 312

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parties respectively. This seems to fit quite well with Alexy’s understanding of this balancing exercise, where optimisation is of utmost importance: the greater the degree of non-satisfaction of one party should reflect the greater degree of satisfaction of the other.

In Hauer, although the proportionality principle was applied by the Court, one notices a major emphasis on the legitimate aims test which seems to have sealed the judgement from the beginning. This is because the Court’s main emphasis was on the importance of the aim pursued by the Commission, that of ameliorating the wine market of the EEC. One may also argue that this could very well not have been a proportionality case but a deontological case where the public interest right reflected in the Common Organisation of the market in wine would always prevail in such circumstances. In this case, the Court did not examine alternative means which were capable of achieving the aim in view and which would be less burdensome than the impugned measures. Neither did it address the claim of disproportionality.

In the Digital Irish and the Schecke cases, the Court made a very thorough examination of the Directives being impugned. In both cases the Court found the directives to be appropriate in relation to the aim pursued but not necessary due to their lack of observance of the ‘strict necessity’ rule required for the fundamental right to respect for private life. By finding such failure at the necessity stage, the Court did not go into the proportionality strictu sensu stage. Alexy describes fundamental rights as principles being norms which must be satisfied to the greatest degree possible since interference with such principles is necessary in defined cases. The degree to which the fundamental right as principle is to be satisfied depends on what is factually possible (necessity and suitability). This means that when this theory is applied to the Digital Irish case, there was an alternative ‘factual possibility’ of specific provisions delimiting specifically the circumstances in which data retention was possible to cause less interference with the right than the Directive actually did. The same may be said for the Schecke cases. At this stage, because there were less burdensome means, the directives were found to be invalid.

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In the Internationale Handelsgesellschaft case, it was quite clear that the Court’s consideration that Community law, as a separate legal system, could not be challenged on the basis of domestic law, in this case, the German basic law. However, it still took into account the fact that under German Constitutional law, the Regulation requiring forfeiture of the deposits, could constitute a violation of the domestic constitutional principles, but it looked at the situation primarily from the perspective of the Union as a whole, taking into consideration the policy aims that acquired at the time. This was also the case with the Hauer judgement, where the Court clearly showed a preference towards pushing forward the Community’s policy on ameliorating the wine market, which had a direct impact on the common market. The principle of proportionality was applied in both cases with these considerations kept well in mind. In later cases, one then witnesses an increase in concern for fundamental rights.

The Court applies the principle of proportionality precisely to afford greater protection to the individual right. Although the Court did not apply the proportionality strictu sensu stage in all cases, one can still infer that in applying the first two stages there is an underlying weighing exercise being carried out. In the Digital Irish case and the Schecke cases, the Court attributed the greater weight to the respect to private life stating that this could be limited only to the extent that this was strictly necessary. In Sky Österreich greater weight was attributed to the right to access information than the right to freely conduct a business. Both of these rights are protected by the Charter. By applying the principle of proportionality in the way that it did, it demonstrated how the right to access information would suffer disproportionately if the right to freely conduct a business was upheld. The Hautala case reflects the Court’s flexibility in applying the proportionality principle by interpreting it as requiring partial divulgence of the information contained in the Council’s secret document. In this case, the Court interpreted and applied the principle of proportionality as requiring the apportionment of rights, thus striking a balance between the degree of limitation of the right of the MEP requesting access to the document, and the right of the Council of the EU to keep certain information contained within that 314

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document confidential.

The manner in which the CJEU treats each of the three stages within the principle of proportionality seems to be quite consistent, whether or not it applies all three of them or not. The main focus of the proportionality test applied by the CJEU seems to rest on the necessity stage, where the Court, typically examines the alternatives to the impugned measures, and on the basis of a comparison, deciding whether the latter is necessary or not. When it comes to the application of the proportionality strictu sensu stage, it is quite clear that the CJEU has the ability to meticulously weigh the competing rights and interests, and will do so if the case requires such an exercise.

The four approaches to proportionality identified in this study reflect the CJEU’s flexibility and readiness to apply the principle and adapt it to the case before it. The Court’s versatility in the application of the proportionality test allows it to apply what it considers to be principles of fundamental importance to the Union as a whole, and make considerations which it believes to be fundamental in the particular case.

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Multilingualism and EU Legal Terminology

Diana Sultana

Diane Sultana graduated with a Doctor of Laws degree from the University of Malta in December 2016 presenting a thesis entitled, “The Effect of Multilingualism on EU Legal Terminology.” Her areas of interests include European Union Law, Legal Translation and Languages. She is also experienced in the management of EU Legal Terminology, having been a trainee at the Court of Justice of the European Union.

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1. Introduction

U

p to this day, the European Union holds together twenty-eight different legal cultures and twenty-four different official languages. Multilingualism is considered one of the EU’s top priorities and cultural identity is highly respected as it achieves the widest possible integration across all Member States.

The European legal language goes beyond one’s national language, and speaks louder than any other language in a national legal system, as the intentions of the European legislators have to be reflected in all official languages, without any semantic or cultural implications.

In accordance with the landmark case of Cilfit1, a term adopted at a European level is considered autonomous; separate from any connotations in all national legal systems. Yet, European law is ultimately implemented by EU Member States, and control over the interpretation of a specific term cannot be limited. It is only when clarification is deemed necessary by a Member State that the Court of Justice of the European Union intervenes, by means of referral by the Member State to the Court, to provide any clarifications on the interpretation of legal terms and their concept from a European perspective.

This paper explores whether the said ‘autonomous’ EU legal terms are construed in a uniform manner across all twenty-eight national legal systems. EU legislative texts are continuously adopted for a uniform implementation in all domestic legal systems, and should a legal term be interpreted differently in one particular legal system, it would jeopardize the harmonization of European law that the EU highly seeks.

2. Defining Legal Terminology A translation is essentially the transfer of knowledge from the source language into the target language. Lawyer linguists are required to grasp the ideas and concepts found in the original legal text and 1

Case 283/81 [1982] ECR 3415.

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correctly transmit them into the target language, hence a high level of legal knowledge, coupled with an excellent comprehension of the source language and its terminology, are considered fundamental in the field of legal translation.

Terminology is defined as ‘the study of terms and how they are used. It is a formal discipline which systematically studies the labelling of concepts … with the aim of documenting them and promoting their correct usage.’2 It differs from lexicology, as words are used in broader circumstances on a day-to-day basis, contrary to terms that are utilized in a more specialized setting, normally by specialists of a certain field of study.3 In view of this, terminology requires precision to eliminate ambiguity, and to achieve this, ‘each designation needs to correspond to a single concept.’4 Owing to its technical background, it is the concept lying beneath the term that is of utmost importance when discussing terminology. Defined as ‘a unit of knowledge created by a unique combination of characteristics’5, concepts are said to share similarities with letters of an alphabet: just as letters make up words, legal notions form legal terms.6 Just like an alphabet, concepts are not particular to one particular language, but are made to fit in one system by their own social and cultural background, which tends to lead to different categorization.

3. The European Union and Legal Terminlogy The EU has always cherished the cultural diversity of all Member 2

Margaret Rogers, Terminological equivalence in technical translation: A problematic concept?

St Jerome and technical translation, SYNAPS 20 (Fagsprak, Kommunikasjon, Kulturkunnsap 2007) 13.

3

Jennifer Pearson, Terms in Context (Amsterdam Philadelphia: John Benjamin P.C 1998) 8/9.

4

Maria Teresa Cabré Castellevi, Terminology Theory Methods and Applications (Amsterdam and Philadelphia: John Benjamin Publishing Company 1999) 194.

5

ISO 1087-1, Terminology work – Vocabulary – Part I: Theory and Applications (Switzerland: International Organisation for Standards 2000).

6

Hent Kalmo, How comparable are Legal Concepts? The case of causation, Law review: University of Tartu (Juridica International 2006) available at http://www.juridicainternational.eu/ public/pdf/ji_2006_1_45.pdf accessed on 10 August 2017.

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States, thus it incorporates all legal cultures and promotes the right of having all legal texts available in all languages. At the beginning of the European integration process, there were only four official languages and aspirations were high in order to achieve a linguistic equality that has never been reflected on the basis of language. As more Member States joined the European Union, problems stemming from the management of several versions of EU texts became increasingly evident.

Each official language in the EU reflects different cultural identities, embodying different communication styles and different rhetorical patterns, to the extent that cultural elements are apparent in all legal texts on all levels: from its form and concept of a term, to the sentences and stylistic text structures, up to the pragmatics in its social function.7 Terms are therefore subject to different interpretations adopted by different Member States, which do not necessarily share the same concept of one particular term. This constitutes one of the most discussed issues in the European Union. The Union struggles to balance between the option for a linguistic and cultural diversity and the desire to have unity in diversity for a number of reasons.

Andrej Glézl says that the problem lies with the fact that: …the EU has [twenty-four] official languages, and these [twenty-four] equally authentic language versions of legal instruments through which community law is expressed. This … caused a problem and created an environment of legal uncertainty of those, who should benefit from Community law – i.e. individuals. … The first aspect of the problem is caused by the mandatory process of translating the original texts of a new legal instrument into all the Community’s official languages, which is happening during the law making process. The translation process necessarily creates mistakes, and the final official language versions of the Community instru7

Radegundis Stolze, Dealing with cultural elements in technical texts for translation (Darmstadt University of Technology 2009) available at <http://www.jostrans.org/issue11/art_stolze. pdf> accessed on 10 August 2017.

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ment are many times not identical in their meaning. The second aspect of the problem results from the process of translation of existing legal instruments into the official language of any new Member States joining the Community. … Translations are statistically bound to contain mistakes and the translation of a document into another language may cause the fact that a different meaning will be given to the translation than to the original document.8 The EU language arrangement can lead to five hundred and six (506) language combinations and this implies that terminological interpretation, as a highly technical legal field, is extremely difficult.

Deborah Cao identifies four problematic terminological areas in European law that makes it hard to guarantee that the same legal concept is being adopted across all Member States:

3.1. Legal Conceptual Issues Cao refers to Bernard S. Jackson, who states that a legal system is crucial to the understanding of a legal lexicon.9 Translating legal terms requires a full comprehension of one’s national legal system.

What poses a challenge to the lawyer linguist is the possibility of the lack of legal concepts in the target language and/or terms that exist in the source version but do not in the target language. Taking the Maltese language as an example, one should be aware that the language is still young and many legal concepts emerging from the French legal system, for instance, are not catered for in the Maltese legal system. Thus, knowledge of the two pertinent legal systems is fundamental, ‘as well as a comparative analysis of the text and the terms to be translated.’10 8

Andrej Glezl, Lost in Translation: EU law and the Official Languages – Problems of the Authentic Text. (Centre for European Legal Studies 2007) 3.

9

Deborah Cao, Translating Law (Multilingual Matters Ltd 2007) 53.

10

Ibid, 55.

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The role of a lawyer linguist is identifying terms signifying a special legal concept in the target and then examining whether the same concept is present in the target legal system. Should the case be that there are no existing equivalent concepts, new terms underlining the same concept are to be introduced. Legal equivalence is regarded as the synthesis of content, intent and legal effect. In cases where there are no existing equivalents in the target language, more common than not, these EU concepts are literally translated into their equivalents, causing more terminological challenges in the EU language regime.

3.2. Legal System-bound Terms Terms differ from one legal system to another; there are terms adopted in a Continental jurisdiction that portray a different conceptual reality from terms in the Common law jurisdiction. Furthermore, court structures are different in most Member States, and no translation can alter that. The closest source would be to encourage the education and enhance the knowledge of EU citizenson how the EU operates.

3.3. Ordinary versus Legal Meaning Terms like ‘man’, ‘mother’ and ‘marriage’ are used on a day-to-day basis, yet can carry a technical legal meaning, used in more specific settings. These words are all complex once used in a specific context.

Pozzo provides a perfect example of this by asking the question: [W]ould it be possible to understand the concept of “private property” in China, without keeping in mind the values of socialist ideology in which it is embedded? Or would it be possible to understand legislation on the remarriage of widows without knowing the values of Hindu traditional laws attaches to the word “widow” itself?11 11

Barbara Pozzo, ‘Comparative Law and the New Frontiers of Legal Translation’ in Susan Šarčević (ed) Language and Culture in EU Law: Multidisciplinary Perspectives (Ashgate Pub-

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3.4. Linguistic and Legal Uncertainty Cao also discusses the issue of linguistic and legal uncertainty including the problems of vagueness, generality and ambiguity.

Draft European legislation goes through an extensive consultation, examination and revisions; and terms such as ‘good faith’ and ‘law and order’ would need interpretation, as these might be interpreted differently in most Member States. Legal linguists, hence, need to clarify any vague points, obscurities and ambiguities that might ‘run the risk of upsetting the delicately achieved balance and misrepresenting the intent of the parties.’12

4. The Court of Justice, and EU Legal Terminology Such obstacles jeopardize the harmonization of EU legal concepts, and scholars very often emphasize on the need to establish a common set of concepts shared by all those involved in the application of EU legal drafting to ensure that all terms provide uniform legal effects.13 Article 267 of the Treaty on the Functioning of the European Union (TFEU) holds that ‘the Court of Justice of the EU has jurisdiction to give a preliminary ruling concerning the interpretation of the Treaties, [and] the validity and interpretation of the acts of the institutions, bodies, offices and agencies of the Union.’14 When the same legal text expressed in different languages confers convergent interpretations, it is up to the Court of Justice to tackle the imperfections of legal translations and determine a uniform interpretation of the term to be adopted by all Member States.

The CJEU acknowledges that in multilingual system, one language cannot take precedence over all other languages, and this has been lishing Ltd 2015) 76.

12

Ibid, 53.

13

Michele Graziadei, ‘Law, Language and Multilingualism in Europe: The Call for a New Legal Culture’ in Susan Sarsevic (ed) Language and Culture in the EU Law: Multidisciplinary Perspectives (Ashgate Publishing Ltd 2015) 14

Consolidated Version of the Treaty on the Functioning of the European Union (TFEU) [2010] OJ C 83/47 Article 267.

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confirmed in the case of North Milk Products Limited v Minister of Agriculture and Fisheries: The elimination of linguistic discrepancies by way of interpretation may in certain circumstances run counter to the concern for legal certainty, inasmuch as one or more of the texts involved may have to be interpreted in a manner at variance with the natural and usual meaning of the words. Consequently, it is preferable to explore the possibilities of solving the points at issue without giving preference to any one of the texts involved.15 The same approach is used when the Court is requested to clarify EU legal concepts in absence of a clear definition or any definition at all. As discretion is only given to the court, legal concepts may be attributed autonomous interpretation by the CJEU that goes beyond that intended.16 Judgements act as a catalyst for the enactment of new laws; it provides an opportunity to the legal drafter to confirm, change or improve the concepts in question. The need for definitions is felt most in areas where notions in the national legal systems have been in existence well before their harmonization at EU level. The same notions may be attributed an autonomous conceptual meaning once they are integrated in EU legislation, therefore where there is a lack of definitions, it is the responsibility of the Court of Justice to clarify the said concepts as is established by EU legislation, and legal systems may need to adapt their notions according to the autonomous EU legal concept.

The Court has always favoured the unity of European Union law and this cannot be secured if European legislation is interpreted and applied differently in Member States. It is for this reason that the Court insists on the development of autonomous EU legal concepts, 15

Case 80/76 [1977] ECR 425.

16

Martina Bajcic, ‘Conceptualization of Legal Terms in Different Fields of Law: The need for a Transparent Terminological Approach’ in Stanislaw Goźdź-Roszkowski and Iwona Witczak-Plisiecka (eds) Research in Language - Special Issue on Legal Terminology: Approaches and Applications Volume 9.1 (Łódź University Press 2011) 85.

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so as to be able to distinguish between EU and national legal concepts. Susan Šarčević states that: The autonomy of the EU legal order is of fundamental significance for the nature of the EU, for it is the only guarantee that Union law will not be watered down by interaction with national law, and that it will apply uniformly throughout the Union. This is why the concepts of Union law are interpreted in the light of the aims of the EU legal order...17 The same idea that EU legislation should be perceived as a separate legal order, creating its own terminology as well as its legal concepts, has been reflected in the landmark cases of Costa vs Enel18 and Cilfit19, where in the latter case, it was said that:

It must be borne in mind, even where the different language versions are entirely in accord with one another, that Community law uses terminology which is peculiar to it. Furthermore, it must be emphasized that legal concepts do not necessarily have the same meaning in Community law and in the law of the various Member States.

What needs to be said is that, in practice, legal terminology adopted at a European level interacts closely with national legal texts and, more often than not, both texts are read side by side. This leads to the risk of conferring different meanings of specific terms from those intended by the Union. Terminology at a European level is still developing, and to a certain extent, depends on terminology originated from national legal jurisdiction. Furthermore, it is to be acknowledged that while the Court of Justice has discretion to examine terms and to attribute its correct interpretation, it is ultimately the national courts that initially adopt and apply EU legal concepts. It is only in cases of 17

Susan Šarčević, Language and Culture in EU Law: Multidisciplinary Perspectives (Ashgate Publishing Ltd 2015).

18

Case 6/64 [1964] ECR 585.

19

Case 283/81 [1982] ECR 3415.

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doubt, that the national courts refer to the European Court of Justice and request a preliminary ruling. In this sense, every national court is an EU Court, for the EU law is not like federal law with one federal court to apply the law, but it is the courts at domestic level that are responsible for its interpretation.20 The national court is imposed with new legal obligations and is empowered with judicial tools that are not familiar in national jurisdictions, equipping them with a ‘considerable dose of willingness, trust and engagement.’21 Even though the national judge has never before been attributed with such power in the process of proper and uniform use of the application of EU law, the relationship between the national judges vis-à-vis the interpretation of EU law has become complex and marked by tensions and rigidity.22 Authors say that this might be due to the lack of sufficient knowledge of EU law, their unfamiliarity with the methods of legal interpretations adopted by the CJEU, the lack of foreign language skills, or else lack of access to EU law sources. Others refer to the fact that the EU legal system is seen as an autonomous legal system, which might create obstacles to EU law expectations.23 What makes the interpretation of EU law even more difficult is the fact that EU concepts are frequently interpreted according to national law, rather than in accordance with EU law. Engberg presents his extremely radical idea by stating that as long as an EU concept is conveyed in the national language, it will always be construed according to the national legal culture and therefore cannot be deemed to be autonomous. This is due, ‘to the fact that lawyers are educated inside national legal systems’ and always lean towards the conceptu20

Susan Sarcevic (no.17) 43.

21

Urszula Jaremba, National Judges as EU Law Judges: The Polish Civil Law System (Leiden-Boston 2014) 4.

22

Jens Plotner in ‘Report on France’ in Slaughter et al (1998) holds that ‘France is one of the Member States in which Community law has had the greatest difficulties to be fully integrated and recognized as supreme to national law.’

23

For the discussion on the potential obstacles to the fulfilment of EU law expectations by national judges, see for instance Bobek (2008); Kuhn (2005); Prechal et al. (2005) and various authors in Jansen et al. (1997).

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alization of their national legal system.’24 This is why EU terms ought to be clear, easy to understand and unambiguous. In an attempt to achieve this, the European Commission emphasizes on the need to include definitions in legislation for the terms used. However, even where definitions are catered for within EU legislation, they are often a long way from resolving ambiguity. The same can be said for the preambles that are mostly included in all regulations and directives – while they do provide a source of reference to national judges for the benefit of their interpretation of the European text, they still leave a number of uncertainties unsolved.25 A sufficient knowledge of one’s own national legal language and its law is vital in the implementation of EU legal concepts in national legal systems. As a consequence of the absence of such important elements, terms are sometimes translated literally from the source language or else similar lexical units are resorted to without the analysis of the concept behind it. The literal approach puts doubt on the effectiveness of EU translation ‘which achieves a high degree of formal equivalence but often without quality requirements.’26 As Koskinen puts it, ‘what is important is that all versions look the same.’27 This is a mentality that not merely makes it hard for the national judge to interpret the legal provision but infringes the fundamental principle of legal certainty.

5. The Analysis The Acquis Communautaire is a collection of all EU legislation consisting of primary legislation, secondary legislation and case law 24

Jan Engberg, ‘Autonomous EU Concepts: Fact or Fiction’ in Susan Šarčević (ed) Language and Culture in EU Law: Multidisciplinary Perspectives (Ashgate Publishing Ltd 2015) 177.

25

Simon Taylor, The European Union and National Legal Languages: an Awkward Partmership? (Revue Francaise de Linguistique Appliquee 2011) 105-118 26

Šarčević (n: 17)

27

Kaisa Koskinen, Institutional illusions: Translating in the EU Commission in The Translator Volume 6, Number 1, Department of Translation Studies (University of Tampere Finland 2006) 54.

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that regulate the Union. Regulations and Directives make part of the secondary legislation category, yet the difference between them lies within the fact that while regulations are transposed directly into one’s national legal system, the EU legislator leaves the implementation of Directives in the hand of EU Member States. Therefore, legal terms in directives ought to be interpreted and adapted to fit within the national legal system. It is with this in mind that this in-depth terminological analysis shall study directives in relation to EU consumer and environmental law, with the aim of exploring the interaction between legal languages at national and European level.

The legal fields of consumer protection and environment were chosen, as both require special attention as far as choices in terminology are concerned. The former is rooted in traditional contract law with long-established fundamental concepts of national private law, while environmental law is relatively novel, continuously evolving, and necessitating the constant formation of new concepts that are to be manifested linguistically. Limiting the analysis to the most relevant directives, terms were then selected carefully and examined from different points of view, notably by looking at their conceptual meaning as intended by the EU legislator and as interpreted and translated in the English and French legal systems.

The lack of definitions and/or their ambiguous nature in directives leads to a possibility that terms are implemented according to their definitions in one’s national jurisdiction, thus providing different legal effects from that initially intended by the EU legislators. Article 4 of the Product Liability Directive28 provides that ‘the injured person shall be required to prove the damage, the defect and the causal relationship between defect and damage.’ However, as no adequate definition is given to the term ‘causal relationship’, the national courts have opted for different approaches as to how to establish the link between the defect and the damage. In some cases, the causal link may be established by prima facie evidence – however, in other cases, 28

Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products referred hereafter as the Product Liability Directive, can be accessed here: <http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:31985L0374> accessed on 10 August 2017.

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it may not be as easy. A case in point is in the context of pharmaceutical products, where the exact scientific cause of the side effects is still uncertain so that the proof becomes less evident.29 In one of the earliest judgements, the French Supreme Court concluded that when no scientific proof is available, presumptions are not sufficient to establish a causal link.30 This was nevertheless overturned in later judgements, where the same Court held that causation could be established by way of ‘serious and concordant’ presumptions. The English Courts did not adopt the same approach in the case of XYZ v Schering Healthcare Ltd31, wherein the High Court held that a causal link could not be established when no scientific evidence could be presented.

The term ‘average consumer’ in Directive 2005/29/EC on Unfair Commercial Practices32 was developed in the free movement case law of the Court of Justice. In the case of Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG v ‘Österreich’-Zeitungsverlag GmbH33, an ‘average consumer’ was defined to be ‘a reasonably well-informed and reasonably observant and circumspect consumer’.

However, the well-informed, observant and circumspect consumer to which the CJEU refers to may not necessarily match the standard taken by national private law to ensure consumers’ protection. There are cases where national law provide for stricter application, for example, in cases regarding consumer credit. Vanessa Mak34 looks at the 29

Geneviève Viney, La responsabilité des fabricants de médicaments et de vaccins: les affres de la preuve (Dalloz Actualité 2010) 30

Cass (Fr) 23 September 2003, D 2004, 898 and 1344, note D Mazeaud. This judgement was affirmed by: Cass (Fr) 24 January 2006, D 2006, 1273 and Cass (Fr) 27 February 2007, RDC 2007, 1157, note P Mistretta.

31

XYZ v Schering Healthcare Ltd [2002] EWHC 1420 (QB).

32

Directive 2005/29/EC of the European Parliament and the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council, referred to hereafter as the ‘Unfair Commercial Practices’, available at <http:// eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:149:0022:0039:EN:PDF> accessed on 10 August 2017.

33

Case C-540/08 [2010] ECR I-10909

34

Vanessa Mak, The ‘Average Consumer’ of EU Law in Domestic Litigation: Examples from

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Dutch legal system and refers to the domestic judgement of De Treek v Dexia35, wherein it was held that, in relation to consumer credit contract, the provider has the obligation to take account of the interest of the consumer and to protect him against the risks associated with the lack of insight or his own rash decision-making. This implies that banks and investment firms are to advise clients about the possible risks of a product, to investigate the financial position of the client and to provide information on the purchase of the product if need be – hence, it can be argued that the national Dutch law goes further than EU law to offer protection to the ‘average consumer’. English law not follow the same line of thought, as was clearly confirmed in the case of Barnes v Black Horse36, where Judge Waksman, in relation to the duty of care, held that ‘it is not suggested that Black Horse was either asked to, or was expected to or purported to, give advice of any kind.’ In such case, English law tends to shift more towards the EU approach – and does not seem to give much protection to the weaker parties. Such an undefined term within the Unfair Commercial Practices directive can lead to varying interpretations adopted by the national legal system, hence increasing the risk of the legal uncertainty.

The concepts of ‘professional diligence’ and ‘invitation to purchase’ offer the same tactics as that of an ‘average consumer’. Such terms are introduced in the directive on unfair business-to-consumer commercial practices in the internal market37 and are considered novel to all Member States. It is evident that even when a definition for a term is present, divergence in interpretation can still occur between Member States. In fact, it was only recently that a particular national court referred a preliminary reference to the CJEU to clarify the EU’s conceptual meaning of these two terms. In the case of KonsumenConsumer Credit and Investment Cases, Tilburg Law School – Legal Studies Research Paper Series (2012) 35

De Treek v Dexia, Dutch Supreme Court (HR) 5 June 2009, LJN: BH2815.

36

Barnes and another v Black Horse Ltd, [2011] EWHC 1416 (QB).

37

Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) accessed on 10 August 2017.

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tombudsmannen v Ving Sverige AB38, it was the Swedish courts that raised the need for a clarified meaning of the term, ‘thereby enables the consumer to make a purchase’. In great detail, the CJEU held that it is to be interpreted ‘as meaning that an invitation to purchase exists as soon as the information on the product advertised and its price is sufficient for the consumer to be able to make a transactional decision, without it being necessary for the commercial communication also to offer an actual opportunity to purchase the product or for it to appear in proximity to and at the same time as such an opportunity’ while laying out the requirements that are to be carried out by the national court.

The lack of definitions, and the imprecision of certain environmental concepts in the Environmental Liability Directive39 have had a strong effect on its implementation, enforcement and application in national legal systems. The Commission held, in the 1993 Green Paper publication, ‘legal definitions often clash with popularly-held concepts of damage to the environment, yet are necessary for legal certainty’40. Directive 35/2004 defines the concept of ‘environmental damage’ as pertaining to three components: damage to protected species and natural habitats, water damage and land damage. While the definition attributed to both categories of selected species and natural habitats, and that of water has already been catered for in previous directives, land is defined and considered only to the extent as its contamination causes a threat to human health.41 Because the con38

C-122/10 [2011] ECR I-03903

39

Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, hereafter referred to as the ‘Environmental Liability Directive’ available at <http://eur-lex. europa.eu/legal-content/EN-FR-MT/TXT/?uri=CELEX:32004L0035&from=EN> accessed on 10 August 2017.

40

Communication from the Commission of the Council and Parliament: Green Paper on Remedying Environmental Damage COM (93) 47 final, Brussels available at <http://eur-lex.europa. eu/legal-content/EN/TXT/PDF/?uri=CELEX:51993DC0047&from=EN> accessed on 10 August 2017.

41

Article 2 (1) (c) Directive 2004/35/CE states: ‘land damage, which is any land contamination that creates a significant risk of human health being adversely affected as a result of the direct or indirect introduction, in, on or under land, of substances, preparations, organisms or micro-organisms.’

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cept of ‘environment’ denotes such an ambiguous character, difficulties arise when identifying the objects of environmental protection in such a case – the same can be said on the concept of ‘damage’, defined as ‘a measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly’.42 There is no doubt that the definition is highly technical in nature, and while it may be familiar with the terminology adopted by scientists, it is not so for lawyers. The question that needs to be asked is - how would ‘measurable adverse change’ be interpreted in different legal systems? There are various different interpretations in national contexts, thereby undermining the very process of harmonization that the directive attempts to pursue.43 Along the same lines, a central concept is that of ‘significant adverse effect’ - a term that is not defined at all and upon which lies the application of the whole liability regime.

Yet, it is not merely the lack of definitions or their imprecise nature that leads to divergent conceptual interpretations in Member States.

Sometimes, it is the way one particular concept can have different connotations in different countries. ‘Good faith’ is a well-established principle in a number of legal systems but has little embedment in others; hence, it can have the potential for conceptual discrepancy in a number of Member States. Such a term is specifically used in the Unfair Contract Term Directive44, and while the term is considered to be a vital element in the general application of the law of contract in the Civilian system, it is incorporated with much more obscurity in English law.45 Bona fides in Roman law was regarded as a means granting discretion to the judge to decide the case before him in a fair and reasonable manner. Treu und Glauben46 in the German legal 42

Article 2 (2) of Directive 2004/35/CE.

43

Barbara Pozzo, ‘The Myth of Equivalence in Legal Translation’ in Lucia Morra and Barbara Pasa (eds) Translating the DCFR and Drafting the CESL: A Pragmatic Perspective (Sellier European Law Publishers 2014) 44

Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts referred hereafter as the ‘Unfair Contract Term Directive’ available at <http://eur-lex.europa.eu/legal-content/EN-FR-IT/TXT/?uri=CELEX:31993L0013&from=EN> accessed on 10 August 2017.

45

Taylor (n: 31)

46

Treu and Glauben translates to ‘fidelity and faith’.

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language arose out of this. Although considered to be ‘the queen of rules’47 in the German legal system, the same cannot be said for the term ‘good faith’ in Common law jurisdiction, where it is regarded as ‘an invitation to judges to abandon the duty of legally reasoned decisions and to produce an unanalytical incantation of personal values.’48 It had even been described as ‘inherently repugnant to the adversarial position of the parties when involved in negotiations’49 by Lord Ackner in the case of Walford v Miles50. Delving into the concept of ‘good faith’ as understood in the German legal system, Teubner elaborates on the matter by saying that the two terms cannot be understood uniformly because of the differences in the two legal cultures in the two countries. Moreover he argues that ‘legal irritants cannot be domesticated. Rather, they will unleash an evolutionary dynamic in which the external rule’s meaning will be reconstructed’51. The differences rooted in diverse legal systems can also be one of the main reasons why EU legal terms are interpreted differently, hence the emphasis on the usage of system-neutral terms.

Article 3 (6) of the Consumer Sales Directive52 provides that ‘a consumer is not entitled to have the contract rescinded if the lack of conformity is minor.’ While the English use the term contract ‘rescinded’, the French refer to résolution. Without providing any definitions, it is worth noting that ‘rescission’ in English law is not the same as résolution as in French law. ‘Rescission’, as a concept in English law, denotes the termination of a contract without the authorization of the court, 47

Simon Whittaker and Reinhard Zimmermann, Good Faith in European Contract Law (Cambridge University Press 2000) 20.

48

M.G. Bridge, Does Anglo-Canadian Contract Law Need a Doctrine of Good Faith? (Canadian Business Law Journal 1984) 412.

49

Document available at <http://www.diprist.unimi.it/fonti/921.pdf> accessed on 10 August 2017.

50

Ibid, Walford and others v Miles and another, House of Lords ([1992] 2 AC 128.

51

Gunther Teubner, Legal Irritants: Good Faith in British Law or How Unifying Law Ends up in New Differences in Modern Law Review Volume 61 (1998) 11-32.

52

Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees referred hereafter as the Consumer Sales Directive, available at <http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:31999L0044> accessed on 10 August 2017.

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whilst resolution, in French law, requires court permission. Such a difference in concept leads to either a divergence in application or to a difference in the meaning of the French or English law when they are compared to their national meaning. The directive also makes reference to the terms ‘reasonable’ and ‘reasonably’ as a standard for conduct. Since this concept is normally associated with the common law jurisdiction, some legal system have had problems in implementing the concept, and have avoided the use of the calqued form of the term used by the respective linguistic version of the directive. As an example, the Italian version of the directive used the term ragionevolmente, which is an EU term closer to the Italian legal terminology of Civil law con l’ordinaria diligenza. The same can be said for the Maltese version of b’mod raġonevoli, a term inherited from the Italian legal language.

Vague terms can also be a source of convergent interpretation at national level. Article 2 of the Directive on the assessment of the effects of certain public and private projects on the environment53 speaks of ‘development consent’. Initially, in the Directive of 1985, the term was defined as ‘the decision of the competent authority or authorities which entitles the developer to proceed with the project’54. EU terminology is diverse, and can be somewhat confusing – ‘authorisation’, ‘permit’, ‘written consent’ and ‘development consent’ are all used but without a clear conceptual pattern. In an attempt to clarify such a legal concept, in the case of Diane Barker v London Borough of Bromley55, the CJEU concluded that the term is to be given an autonomous and uniform interpretation, independently from the Member States’ legislation, and consistent with Community law.

As ‘development consent’ was a newly introduced term, it had to be expressed by a new national term to cover a wide range of actions.

53

Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment hereafter referred to as EIA available at <http://eur-lex.europa.eu/ legal-content/EN/TXT/PDF/?uri=CELEX:32014L0052&from=EN> accessed 10 August 2017.

54

Council Directive of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, available at <http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A31985L0337> accessed on 10 August 2017.

55

Case C-290/03 [2006] ECR I-03949.

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Though, some of the Member States opted for a word-to-word translation, including the Maltese with the term kunsens għaż-żvillup, some language versions invented or used another expression instead.

In fact, the French version of the directive opted for the term of autorisation as an equivalent. ‘Development consent’ is not the easiest term to transpose within national legislation, and this is not due to translation problems but rather to the difficulty to recognize what constitutes an act of ‘development consent’. Before this directive was adopted, a procedure was in place for the adoption of a formal act

by French authorities called déclaration d’utilité publique. This act is generally considered as ‘development consent’ in French law, but the ‘development consent’ used by EU law has a broader meaning.

This notion was the subject of a number of judgements – the case of Abraham and Others56 provided further details on the interpretation of the term by concluding that an agreement merely signed between the public authority, a company in charge of the development and promotion of an airport and an air freight company, is not a project within the meaning of the EIA directive. EU terms whose concepts are introduced by EU legislators are always difficult to implement in domestic law – divergences in the interpretation of such EU terms can be common, hence the fundamental rule of the Court of Justice.

It is evident that the field of EU legal terminology is still facing difficulties in the transposition of EU directives in national legal systems and, despite the fact that terms and concepts can be clarified upon the request of a preliminary ruling before the CJEU, there are still intrinsic issues yet to be tackled. What is important to keep in mind is that the EU legal drafter cannot act independently from national law. The transposition and implementation of the EU rules does not cease when the rules contained in a directive become part of the national legislation in writing. On the contrary, national and European legislation must continue working hand in hand. Cooperation and discussions between the national and the European legislators is of fundamental importance, also during the time in which the EU legislation is being drafted. This is because the reality of national law must be considered while creating EU law.

56

Case C-2/07 [2008] ECR I-01197.

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6. Harmonisation of EU Legal Terminology Reliable, unambiguous and standardized communication between the Union and the national legal systems can only be guaranteed with the harmonization of legal terminology. Harmonization starts at the concept level, and continues at term level. It is generally defined as:

[An] activity leading to the establishment of a correspondence between two or more closely related or overlapping concepts having … difference, in order to eliminate or reduce minor differences between them.57 Differences in legal languages make the harmonization process difficult, yet work towards attaining EU uniform concepts is still on going with the best methods towards harmonization still being evaluated. Ideally, the EU’s goal is to be able to attain harmonization of the entire concept system. Realistically however, because of various linguistic and extra-linguistic factors, even when all attempts are made to harmonize terminology as they develop, inconsistent terminology is continuously being created and utilized. Differences between concepts in one language or in a number of different languages are, more often than not, difficult to identify – hence leading to misinterpretation in legal effects. In 2001, Hellelink had already advocated that a new legal culture was developing ‘which is much less formal-dogmatic and much more substantive-pragmatic [approach] than the national legal cultures have been in Europe.’58 On the same lines, Ajani and Ebers strongly advocate that the way towards further harmonization lies in the creation of a uniform terminology for European Private Law.59 Directives often try to attain unity on a European level whilst still remaining the foundation of disunity at a national level, which 57

ISO 860: 2007, Terminology work – Harmonization of Concepts and Terms (Switzerland: International Organisation for Standards 2007).

58

Martijn W. Hesselink, ‘The New European Legal Culture’ in Martijn W. Hesselink The New European Private Law on the Future of Private Law in Europe (The Hague: London and Boston: Kluwer Law International 2002) 37.

59

Gianmaria Ajani and Martin Eber, Uniform Terminology for European Contract Law: Introduction (Baden-Baden: Nomos 2005)

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potentially leads to national ‘disintegration’60 – an issue that ought to be addressed.

Despite this, scholars have cast their doubts as to whether it is possible to have propositions purporting one and the same meaning in all Member States across all legal languages in which European law is expressed. The reasoning behind this lies ‘in the idea that encoding the same meaning in texts expressed in different languages ultimately fails, because meaning cannot be detached from its linguistic expression.’61 Yet, several attempts are still undergoing in hope to achieve greater legal certainty and to establish approaches towards the idea of a new EU legal culture. In 2009, the joint effort of the European comparative lawyers led towards the publication of the Draft Common Framework of Reference (DCFR).62 Made up of five volumes containing ten books on contract law, its aim is to ‘develop clear and consistent concepts and terminology’63 towards higher coherence in EU legal concepts. The DCFR follows the same structure of the Principles of European Contract Law (PECL)64, in that it provides a terminological list with completed definitions written in a neutral meta-language. It has proposed the first unified definition of the term ‘consumer’ under EU law, which was then reproduced in the Consumer Rights Directive, and later in the CESL. The DCFR promises to be the first European soft law code to have what could be called one complete dictionary comprising of one comprehensive list of definitions, clarifying the meaning of the legal terms used. It sets a new widespread and comprehensive system 60

ibid.

61

Michele Graziadei, ‘Many Language for a Single Voice: The Heteroglossia of EU Private law, and the Evolving Legal Culture of Europe’ in Lucia Morra and Barbara Pasa (eds) Translating the DCFR and Drafting the CESL: A Pragmatic Perspective (Sellier European law Publishers: 2014) 73.

62

Principles, Definitions and Model Rules of European Private Law, Draft Common Frame of Reference (DCFR) full edition (Munich: Sellier European Law Publishers, 2009).

63

Ibid.

64

Principles of European Contract Law (Part I and II revised in 1998, Part III revised in 2002) available at <http://www.transnational.deusto.es/emttl/documentos/Principles%20of%20European%20Contract%20Law.pdf> accessed on 13 July 2017.

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of terminology without the use of ‘legalese and technicalities drawn from any one legal system.’65 If the goal is to have one ‘common temple’ of coherent concepts and terms, it is crucial to stay away from the use of terms that are closely linked to any of ‘the many “local temples” present in Europe’.66 The Study Group on the European Civil Code further advocates the use of a simple and descriptive language, for everyone to be able to understand and apply. However, how effective the Study Group has been in implementing such an approach is a matter of discussion. In his assessment, Simon Whittaker points out that the fact that the DCFR refers to the parties of a contractual relationship as ‘creditor’ or ‘debtor’ goes beyond the use of neutral terminology, as while these sound familiar to continental lawyers, they are not so to English readers.67 There are several other examples that suit the Western continental traditions, and therefore still carry a specific technical meaning of the systems from which they originate. A case in point, for example, would be that of the terms ‘solidary liability’ and ‘limitation of right’, for example.

Some definitions still remain too broad and vague68, and Michel Séjean argues that the terms defined in the DCFR sometimes are the product of diverging choices, and in other instances, share the same definitions while having different uses.69 Speaking from the point of view of the French legal language, he asserts that certain definitions do ‘shake [their] habits.’70 Although the term ‘assets’, as defined in 65

Study Group on European Civil Code, Principles, Definitions and Model Rules of European Private law (Sellier European law Publishers: 2009) 29.

66

Carlo Marchetti, Legal Categories and Legal Terms in the Path towards a European Private Law: The Experiment of the DCFR, European Review of Private Law (Kluwer Law International 2012) 1270.

67

Simon Whittaker, The ‘Draft Common Frame of Reference’: An Assessment, November 2008, commissioned by the Ministry of Justice, United Kingdom, 47 available at <www.justice.gov.uk/ publications/eu-contract-law-common-frame-reference.htm.> accessed on 10 August 2017.

68

Jan Engberg, ‘General and Specific Perspective on Vagueness in Law – Impact upon the Feasibility of Legal Translation’ in Lucia Morra and Barbara Pasa Translating the DCFR and Drafting the CESL: A Pragmatic Perspective (Sellier European Law Publishers 2014) 69

Michel Séjean, ‘The Definitions of the DCFR and the French Legal Language’ in Lucia Morra and Barbara Pasa Translating the DCFR and Drafting the CESL: A Pragmatic Perspective (Sellier European Law Publishers 2014) 70

Ibid, 196.

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the DCFR, incorporates similar elements to the concept of actifs in French, the latter is rarely used in French substantive law, as opposed to ‘assets’ in the DCFR. Member States, therefore, ought to adjust to such new approach that is catered for by such document. He adds that the French law has a variety of words to express the notion, for example, of ‘goods’, and the fact that the DCFR only caters for one term can result in unsatisfactory provisions.71 While efforts in establishing the DCFR are to be praised, questions still remain as to whether the selection of terms are free from all national connotations.

In 2011 the Commission reacted by putting forward a Regulation on a Common European Sales Law (CESL)72, an opt-in legal measure with the objective to eliminate any legal, cultural and linguistic barriers to cross-border communications by creating a common set of contract law rules, made available to both business and consumers in all official languages and which should be interpreted autonomously, without any connotations to national law.73 Proposed in the form of a Regulation, the CESL is an optional legal measure having direct effect in all Member States. As it does not require transposition into national law, national authorities would not be in a position to ‘tamper’ with terminology to make it more coherent with national law – a scenario that often takes places during the transposition of directives requiring minimum harmonization.74 The usage of plain language is considered to be a step forward as it boosts comprehensibility, implying greater predictability in legal provisions. The question arises as to whether the language used is still sufficiently clear and predictable to facilitate negotiations between businesses and consumers. Although plain English abolishes the term ‘shall’ and uses the term ‘must’ instead, CESL drafters still resort back to using ‘shall’ or ‘shall not’ interchangeably with ‘must’, thus making it unclear whether non-performance gener71

The French opted for the term biens meubles corporels, as biens was the equivalent of property however the translated definition in the DCFR is as follows: les meubles corporels sont des meubles corporels (goods are corporeal movables) that can be considered to be ambiguous.

72

Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law COM (2011) 635 final available at <http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0635:FIN:en:PDF> accessed on 13 July 2017.

73

Susan Šarčević (n: 17)

74

Ibid, 55.

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ates enforceable claims. Šarčević also criticizes the approach taken by the CESL in using different terms to designate the parties in different types of contracts. Instead of merely making reference to the terms of ‘seller’ and ‘buyer’ as parties to sales contracts, the CESL opted for the ‘supplier of digital content’ and ‘user’ in relation to the supply of digital content and to ‘service provider’ and ‘consumer’ in relation to service contracts, leading to terminological inconsistencies75.

During the initial stages of the CESL proposal, precautions were taken to enhance the legal certainty by providing concrete definitions of terms and expressions adopted in such legal measure. One cannot deny that it is indeed a step forward in making the language of the law ‘more user-friendly, in particular simpler, clearer and more coherent’76, increasing the predictability of legal effects in all language versions of the CESL. However, despite the fact that it is mainly concerned with stronger assurance of legal certainty, the open-ended and vague concepts of, for example, ‘significant disadvantages’, ‘good commercial practice’ and ‘good faith’ are still at a central point, drawing a number of criticisms towards the lack of clarity, uncertainty and unpredictability they project.

Reference ought to be made to the fact that the English language has attained fundamental importance in the EU, so much so that both the DCFR and the CESL are drafted in English. However, the English that is used in the Community is different from that used in Common law, as Simon Tanner points out: ‘legal English … is both simplified, having been drafted according to principles of plain English, and cross cultural. The source system is … civil law in nature’77.

75

Statement of the European Law Institute on the Proposal for a Regulation on a Common European Sales Law (Vienna, 2012), 25 available at : <https://www.europeanlawinstitute.eu/ fileadmin/user_upload/p_eli/Publications/S-2-2012_Statement_on_the_Proposal_for_a_Regulation_on__a_Common_European_Sales_Law.pdf> accessed on 10 August 2017.

76

Working document on the Proposal for a Regulation of the European Parliament and Council on a Common European Sales Law, 2012 available at <http://www.europarl.europa.eu/sides/ getDoc.do?pubRef=%2F%2FEP%2F%2FNONSGML%2BCOMPARL%2BPE-497.786%2B01%2BDOC%2BPDF%2BV0%2F%2FEN> accessed on 10 August 2017.

77

Simon Tanner, ‘The Past, Present and Future of Legal English in the UK and Abroad?’ in Atti dell’Accademia Peloritana dei Pericolanti, Classe de Lettere e Filosofia e Belle Arti Volume 58 (Naples: Edizioni Scientifiche Italiane, 2006) 202.

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The English language has been attributed a principal role in the EU throughout the years, a role that cannot be completely eliminated in a couple of days or weeks. It is the most widespread language in the EU, and the probability of another language attaining the same status as that of the English language is extremely remote. Tying this with the need for terminological harmonization – having one common language, be it English, French or German - will definitely ease the process of translation, as the problem of transferring a legal concept from a legal language, which reflects the values, the mentality and the architecture of a given legal culture into another, will be abolished.

However, in such a case, one problem will be overlapped by another – that of the interpretation, the implementation and the application of EU terms adopted within the common legal language into the national domestic systems78, a problem that will likely attract a certain degree of criticism, as many are those who believe that cultural and linguistic diversity in the EU should be promoted and supported rather than completely done away with one common EU legal language.

7. Conclusion It is evident that multilingualism within the EU still acts as an obstacle to harmonization and this can only be partially solved by the Court of Justice. With a view to aid terminological convergence, there was an increased number of discussions between the different European legal systems and comparative lawyers, bringing together a greater cognizance of the linguistic, conceptual and institutional differences between the same systems, as a means to take a step forward in achieving a single meaning for EU legislative texts, and ultimately for EU legal concepts.

The question of whether the Union is achieving legal certainty in its uniform interpretation of EU legal concepts is still a matter of debate. Every legal system is different, each with its own understanding of its own terms, Yet, in the European Union, system neutral terms 78

Christopher Goddard, Where legal cultures meet: Translating confrontation into existence, Institute of Linguistic (Adam Michiewicz University 2009)

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are to be encouraged as to promote a uniform interpretation of international rules and reduce misunderstandings between different legal systems, making it possible for individuals and entities to rely on their own language version. System neutral translation encourages a consistent use of terminology within one language i.e. only opting for one and the same term for the translation of, for example, ‘obligation’. Eliminating legal uncertainty from EU multilingual legislation has always been a priority for the linguist, terminologist and lawyers of European law, who continue to pursue the most effective ways to bridge the gap between national legal systems, legal languages and cultures to be able to create a more harmonized terminology for better comprehension of EU law.

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The Eurasian Economic Union - Risks and Opportunities of an emerging bipolar Europe Werner Miguel Khn

Werner Miguel Kuhn is a multilingual lawyer with ample expertise in various fields of law, specialized in regional economic integration, both in Europe (European Union / European Free Trade Association / Eurasian Economic Union) and South America (Andean Community / Mercosur). He has extensive judicial practice acquired by exercising the functions of a law clerk / legal secretary / référendaire of judges in international and national courts.

He is currently a Senior Legal Officer with Frontex, the European Border and Coast Guard Agency.

VOLUME XXVIIII

1. Introduction

T

he current armed conflict in eastern Ukraine attained sad notoriety, as it showed that war in Europe could no longer be considered a phenomenon belonging to the past, effectively eradicated following years of international cooperation in different areas.

The dispute between the West and Russia over the fate of Ukraine reminded many of the days of the so-called ‘Cold War’, during which the two superpowers of that time – the United States of America1 and the Union of Soviet Socialist Republics2 – irreconcilably faced off against each other, keeping each of them a geographical area of political influence at global scale. Far from discussing security aspects, the present article intends to analyse the said conflict from a geopolitical perspective as the competition between two regional integration systems – the European Union3 and the Eurasian Economic Union4 –, which have clashed as a result of their continued territorial expansion. For this purpose, legal, economic, and political aspects will be taken into account. The main objective of the present article is to shed light on the functioning of the latter integration system, with a view to assist the European Union5 in developing strategies for bilateral cooperation, ultimately preventing further confrontation.

2. The conflict in Ukraine as the background of a clash between two integration systems Whilst the general public tends to primarily see in the armed conflict a confrontation between Ukraine and Russia over territorial and ethnic boundaries, little is known about the true reasons of the dispute. In order to understand these reasons, the conflict must be contemplated within the greater context of the economic and political 1

Hereinafter referred to as ‘the USA’.

2

Hereinafter referred to as ‘the USSR’.

3

Hereinafter referred to as ‘the EU’.

4

Hereinafter referred to as ‘the EAEU’.

5

Hereinafter referred to as ‘the EU’.

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restructuring of Eastern Europe and the Caucasus over the past years, whose main protagonist has been the EU. After the collapse of the USSR and the communist regimes in Eastern Europe, the EU stepped in to fill the political vacuum left, setting a new agenda aimed at helping the individual States in their transformation into market economies, thus enabling their subsequent incorporation into the European single market. While this is certainly the case for those Eastern European States which joined the EU as full members from the year 2004 onwards, it is also to a certain degree true for those States in the Balkans and the Caucasus which have established privileged trade ties with the EU. However, with the emergence of the EAEU in Eurasia, a new actor has entered the international scene, openly challenging the new order established by the EU with the so-called Eastern Partnership.6 A proper analysis of the events leading to this clash – which has dramatically escalated including economic sanctions and military measures – requires that the perspective of both integration systems be taken into account.

For that purpose, in what follows, it shall be firstly explained what the EU’s geopolitical strategy with regard to Eastern Europe and the Caucasus consists of, and secondly, how it has been perceived by Russia.

2.1 The EU’s view of a unipolar Europe reflected in the Eastern Partnership It follows from Article 8 of the Treaty on the European Union7(TEU), that the EU ‘shall develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation.’8 This provision further states that for this purpose, the EU‘may conclude specific agreements with the countries concerned. These agreements may contain reciprocal rights and obligations as well as the possibility 6

Hereinafter referred to as ‘the EaP’.

7

Hereinafter referred to as ‘the TEU’.

8

Consolidated Version of the Treaty on European Union [2012] OJ C326/13 Article 8.

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of undertaking activities jointly. Their implementation shall be the subject of periodic consultation.’9 Although this provision was not applicable before the entry into force of the Treaty of Lisbon on 1 December 2009, it best articulates the EU’s new foreign policy as regards its near geographical environment.

The ‘enlargement fatigue’ experienced in the past decade, along with the pressing question as to what should be the ultimate boundaries of the EU as a regional integration system, made it necessary to develop a strategy in relation to those States, to which the EU could not offer an accession perspective. A differentiated approach was eventually adopted within the European Neighbourhood Policy,10 the general strategy which encompasses the EU’s foreign relations with Eastern Europe, the Caucasus, the Middle East, and Northern Africa.

The EaP, the strategy developed specifically for Eastern Europe and the Caucasus, was born in 2008 based on a Polish-Swedish proposal as a joint initiative involving the EU, its Member States and six eastern European partners: Armenia, Azerbaijan, Belarus, Georgia, Moldova, and Ukraine.

The EaP is based on a commitment to the principles of international law and fundamental values – democracy, the rule of law, human rights, and fundamental freedoms – it also implies support for a market economy, sustainable development, and good governance.

More concretely, according to the joint declaration signed in Prague in May 2009 which gave birth to EaP, it aims at: Creating the necessary conditions to accelerate political association and further economic integration between the EU and the interested partner countries. It seeks to support political and socio-economic reforms of the partner countries, facilitating approximation towards the EU. This is meant to serve the shared commitment to stability, security and prosperity of the EU, the partner countries and indeed the entire European 9

.ibid.

10

Hereinafter referred to as ‘the ENP’.

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continent.

In other words, the EaP constitutes a foreign policy strategy aimed at fostering economic development in Eastern Europe with a view to guaranteeing stability and peaceful cooperation in the EU’s immediate neighbourhood.

From a legal perspective, the EaP is implemented by bilateral association agreements concluded between the EU and individual partner States whose objective is the establishment of Deep and Comprehensive Free Trade Areas11, ultimately offering opportunities for trade and investment. In technical terms, the creation of these association agreements implies a regulatory approximation leading to convergence with EU laws and standards, with this measure expected to facilitate the opening of national markets.12 The consequence of this approximation is that eastern partners are required to adopt the EU’s acquis13 by incorporating it into their respective national legal orders, at least in specific sectors covered by the subject matter of the agreements.14 The EU has repeatedly stressed the importance of legislative and regulatory approximation for the achievement of the objectives set by the EaP and has therefore offered support to national 11

Hereinafter referred to as ‘the DCFTA’.

12

Council of the European Union, ‘Joint declaration of the Eastern Partnership Summit’ (14983/11, Presse 341 2011) 3; Roman Petrov and Paul Kalinichenko, ‘On Similarities And Differences Of The European Union and Eurasian Economic Union Legal Orders: Is There the ‘Eurasian Economic Union Acquis’?’ [2016] 43(3) Legal Issues of Economic Integration (Kluwer International) 295, 297.

13

Translation: The EU acquis is the accumulated legislation, legal acts, and court decisions which constitute the body of European Union law.

14

See for example the EU-Ukraine association agreement, Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part [2014] OJ L161/3 wherein Article 124(1) stipulates that ‘the Parties recognise the importance of the approximation of Ukraine’s existing legislation to that of the EU. Ukraine shall ensure that its existing laws and future legislation will be gradually made compatible with the EU acquis.’ Moreover, art. Article 56(1) of the same agreement states that ‘Ukraine shall take the necessary measures in order to gradually achieve conformity with EU technical regulations and EU standardisation, metrology, accreditation, conformity assessment procedures and the market surveillance, and undertakes to follow the principles and practices laid down in relevant EU Decisions and Regulations.’ Article. 56(5) prescribes that ‘Ukraine shall refrain from amending its horizontal and sectoral legislation […], except in order to align such legislation progressively with the corresponding EU acquis, and to maintain such alignment.’ For more detailed information about standard approximation, see Pasquale Demicco, (European Commission 2015).

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institutions wishing to make themselves familiar with the EU’s legal framework.

In the long term, this process shall lead to a gradual economic integration of the eastern partners in the EU internal market and the creation of a common economic area. It is worth noting in this context that the cooperation envisaged by the EaP goes beyond matters pertaining to trade, extending even to the area of justice and home affairs, migration and asylum, fight against corruption and, border control. Furthermore, cooperation in the field of energy is envisaged with a view to strengthen energy security. A long-term stable and secure energy supply and transit shall be achieved, also through better regulation, energy efficiency and more use of renewable sources. The EaP proposes the inclusion of provisions on energy interdependence in association or other bilateral agreements between the EU and the partner States. A strong incentive for partner States to cooperate with the EU is the prospect of visa liberalisation, which is seen as an instrument for facilitating trade and investment, expected to be achieved gradually once the conditions for safe mobility will be met.15 Thus, it is possible to conclude from the foregoing that the association agreements proposed to EU’s partner States in the framework of the EaP aimed at establishing so-called DCFTAs are no longer based solely on the tariff reduction logic, because they cover a broader range of issues, such as removal of non-tariff barriers, liberalisation of the services sector, elimination of the State’s protectionist measures, favourable conditions for foreign direct investment, etc. By offering free trade agreements, the EU requires from its partner States economic modernisation with high EU standards in areas such as sanitary and phyto-sanitary standards, technical regulations, public procurement, competition policy, and State-aid.

The EaP appears to be based on the concept of a ‘unipolar Europe’, entailing an incorporation of the eastern partners in the orbit of the EU as the focal point, with access to its internal market as the key instrument used for achieving this goal. It might be more than a 15

Viven Pertusot, ‘La Politique européenne de voisinage: un phénix bureaucratique?’ [2016] Notes de l’Ifri, Ifri 5, 12.

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sheer coincidence that the launch of the EaP took place shortly after Russia’s invasion of Georgia in 2008. However, there is no indication in favour of the assumption that the EU leaders intended to alienate or exclude Russia from any partnership with the EU. On the contrary, Russia was offered the opportunity to become part of the EaP along with the other eastern European countries. This offer was, however, rejected by Russia which did not consider this kind of partnership to be in line with its self-perception of a regional power, entitled to a privileged, or at least to some kind of relationship between equals with the EU. In order to understand the disagreement between the EU and Russia as regards the shape and future of their relations, it is necessary to take into account Russia’s view on the events taking place in its immediate neighbourhood at that time.

2.2 Russia’s reservations to the EU’s Eastern Partnership as a result of its view of a bipolar Europe The enlargement of the North Atlantic Treaty Organization16 so as to include former Member States of the USSR and the Warsaw Treaty Organization (also known as the Warsaw Pact) met Russia’s clear discontent. Concessions made by NATO such as the assurance to refrain from setting up new military bases in those eastern European countries aimed at addressing Russia’s security concerns based on an alleged perception of being ‘cornered’ by foreign military forces.17 Interestingly, the situation was significantly different in the context of the EU’s eastern enlargement despite the considerable political, social, and economic impact the accession to this integration system has had on these countries’ societies and the fact that, for the first time ever, Russia and the EU as a political entity shared common borders.

The current legal basis for EU-Russia relations is the Partnership

16

Hereinafter referred to as ‘the NATO’.

17

Joshua R. Itzkowitz Shifrinson, ‘Deal Or No Deal? The End Of The Cold War and The U.S. Offer To Limit NATO Expansion’ [2016] 40(4) International Security 7, 7-44.

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and Cooperation Agreement18 of 1994.19 Since then, the concept of a ‘Strategic Partnership’ was invoked and several attempts were made to deepen bilateral cooperation. In May 2003, when the perspective of Russia’s participation in the ENP was vanishing, agreement was made on the deepening of cooperation through the establishment of four ‘Common Spaces’.20 At the Khanty-Mansiysk summit in 2008, the leaders of the EU and Russia decided to work on a ‘New Basic Agreement’ to replace the PCA of 1994.21 A further step was made in 2010, with the launch of the ‘Partnership for Modernization’ covering several areas: from the more economic and technical to the judicial fields and the strengthening of the rule of law.22 Despite all these efforts, no meaningful results were achieved in bilateral talks. On the contrary, many dialogues were frozen when Russia became increasingly assertive in its foreign policy towards neighbouring countries. In the meantime, the EU had started negotiating association agreements aimed at establishing DCFTAs with EaP countries, including Ukraine. As will be explained in what follows, this fact would change the course of EU-Russia relations dramatically, to the point of initiating a veritable geopolitical competition on dominance over Eastern Europe and the Caucasus. In fact, the EU’s rapprochement to Ukraine, regarded by Russia as part of its traditional sphere of influence due to the manifold historical and cultural ties between both nations,23 must be seen as a turning point in Rus18

Hereinafter referred to as ‘the PCA’.

19

Commission, ‘Agreement on partnership and cooperation establishing a partnership between the European Communities and their Member States, of one part, and the Russian Federation, of the other part’ COM (1997) 3-69.

20

Commission, ‘EU/Russia: The four “common spaces”’ (Press Release) COM (2004). The four areas of cooperation are economy & the environment; freedom, security & justice; external security; research & education, including cultural aspects.

21

Council of the European Union, ‘Joint statement of the EU Russia summit of on the launch of negotiations for a new EU-Russia agreement’ (11214/08, Presse 192 2008).

22

Commission, ‘EU and Russia launch new partnership for modernization’ (Press Release) COM (2010).

23

The Kievan Rus as a federation of Slavic tribes under the reign of the Varangian Rurik dynasty (882-1240 AD) is regarded by the modern peoples of Belarus, Ukraine and Russia as their cultural ancestor. Furthermore, Ukraine occupies a central place in Russia’s political psyche. The debate on whether Ukraine is a separate country or simply ‘kraina’ (borderlands) of Greater

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sia’s stance towards the EU, initially characterised by cautious interest rather than by distrust.24 In response to the EaP initiative, Russia – along with other post-Soviet States – launched a series of projects having regional economic integration in the Eurasian space as their objective, with the creation of a Eurasian Customs Union25 in 2010 and the eventual establishment of the EAEU in 2015. An assessment of Russia’s leading role in these integration processes and its vision of future relations with the EU reveals that Russia regards the EAEU primarily as an instrument of foreign policy which helps it bolster its own bargaining position vis-à-vis the EU. Its perception of the future geopolitical order appears to be one of a ‘bipolar Europe’ with genuine spheres of influence reserved to each, the EU and the EAEU, with the latter under Russian leadership. Tensions between both integration systems increased when it became obvious that this vision contradicted the model envisaged by the EU, articulated by the EaP. Russia concretely feared that a rapprochement of the EU with the eastern European countries would take place to the detriment of Russia’s relations with these countries.26 In particular, the legislative and regulatory approximation foreseen in the EaP, including the adoption of the EU’s technical standards, was seen by Russia as having the potential of creating obstacles to trade if these technical standards happened to be incompatible with the ones applied by Russia.27 This, together with the elimination of most customs tariffs in trade with the EU, prescribed by the association agreements, was considered to pose a risk to Russia’s competitiveness. Another aspect deemed critical was the EaP’s agenda in the area of energy cooperation, which from Russia’s perspective unRussia is so intense that it can sour friendships and family relations in Russia.

24

See Canan Atilgan and others, ‘The Eurasian Union: An Integration Project under the Microscope’ [2014] KAS International Reports 8, 15.

25

Hereinafter referred to as ‘the ECU’.

26

Andrei Zagorski, ‘Eastern Partnership from the Russian perspective’ [2011] 3 Internationale Politik und Gesellschaft 41.

27

See Ramūnas Vilipśauskas and others, , ‘Eurasian Union: a challenge for the European Union and Eastern Partnership countries’ [2012] Eastern Europe Studies Centres 5, 11.

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dermined the existing agreements between Russia and, respectively, Ukraine and Moldova. In general, any agreement by which Ukraine would give up sovereignty in areas relevant to trade in favour of integration with another integration system such as the EU was deemed as likely to undermine Russia’s plan of including Ukraine into a Eurasian integration perspective.

The launch of the EAEU is considered by observers as Russia challenging the approach taken by the EU which, as already explained, sees the EU and its internal market as the focal point for economic and political integration in an extended geographical area encompassing the entire European continent and the Mediterranean. The uncertainty has been exacerbated by Russia’s ambiguous stance towards the EU which has repeatedly switched from cooperative to hostile. On the one hand, the idea expressed by the Russian President Vladimir Putin to create a ‘common humanitarian and economic space’ from Lisbon to Vladivostok, with the EU and EAEU as the negotiating partners,28 can be cited as an example of Russia’s alleged willingness to cooperate with the EU on friendly terms. On the other hand, it should not be left unmentioned that the EAEU does not appear to shy away from openly competing with the EU, even at the risk of threatening the latter’s own existence. In fact, the EAEU’s integration plans – as conceived by its key strategists – appear to include the possibility of inviting disgruntled EU Member States and candidate States to join the EAEU.29

2.3 Subsequent creation of the Eurasian Economic Union With the creation of the EAEU, a new integration system emerged in a vast geographical area denominated by its founding fathers as 28

See Hannes Adomeit, ‘Putin’s ‘Eurasian Union’: Russia’s integration project and policies on post-Soviet space’ [2012] 4 Center for International and European Studies, 2.

29

See the speech by Sergey Glazyev, advisor to the Russian President and member of the Russian Academy of Sciences, ‘Who stands to win?: Political and Economic Factors in Regional Integration’ <http://eng.globalaffairs.ru/print/number/Who-Stands-to-Win-16288> accessed 10 August 2017, in which he suggests that the EAEU should invite Greece, Cyprus, and Turkey to apply for membership in this integration system.

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‘Eurasia’, with no clear boundaries, thus encompassing theoretically the entire landmass of Europe and Asia. The EAEU, officially operative since 1 January 2015, is the result of the latest wave of integration in the post-Soviet area. It is commonly assumed that the idea of a ‘Eurasian Union’ had originally been formulated by the Kazakh President Nursultan Nazarbayev in 1994,30 albeit without an appropriate follow-up. Fifteen years later, Russian foreign policy priorities refocused on the regional level. Furthermore, the economic crisis of 2008 had heavily hit Russia and its neighbouring countries, increasing the need for cooperation to reach economic growth. In addition, the EU’s EaP launched in 2009 and China’s growing presence in Central Asia in political and economic matters were seen in Moscow as threats to its influence in the post-Soviet space. The launch of the EAEU was therefore seen as an adequate means to counter these developments.31

3. Overview of the integration efforts in the post-Soviet space As will be shown, even though the creation of the EAEU must be regarded as a reaction, the integration process did not emerge from scratch. Instead, it could look back at various integration efforts made since the collapse of the USSR, crowned with more or less success.

For a better understanding of the general integration context in the post-Soviet space, in which the EAEU saw the light of day, a brief account of these previous efforts will be presented.

30

See Eurasian Economic Commission, ‘Eurasian Economic Integration: facts and figures, 2015 - first 6 months’ (2015) 6.

31

S Frederick Star and Svante E. Cornell, , Putin’s Grand Strategy: The Eurasian Union and Its Discontents (Central Asia-Caucasus Institute & Silk Road Studies Program2014) 180; Laure Declour and others, ‘’The implications of Eurasian integration for EU’s Relations with the Countries in the Post-Soviet Space’ [2015] 68(1) Studia Diplomatica 5, 12.

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3.1 Commonwealth of Independent States The creation of the Commonwealth of Independent States32 in 1991 constitutes the first commitment to regional economic and political integration in the post-Soviet space. Its purpose, essentially, consisted in managing the orderly separation of the former Soviet republics and the continuation of political and economic dialogue in a new format. The founding document of the CIS, signed on 21 December 1991 in Almaty by all former Soviet republics, excluding the Baltic States and Georgia, offered an ambitious, integrationist agenda. The CIS was supposed to achieve a coordination of both foreign and defence policy, and to develop ‘a common economic space, a common European and Eurasian market and a customs policy’.33 The common economic space was meant to be formed ‘on the basis of the market economy principle, envisaging the free movement of goods, services, capital and labour’.34 Within this framework, the Member States established a network of overlapping bilateral and multilateral agreements, albeit with numerous and no permanent institutional structure.35 In the first years of the CIS’ existence, the Member States showed little interest in further integration, mainly due to the prioritisation of the transformation into market economies and the establishment of international relations with the rest of the world, first and foremost with the USA and the EU. In addition, the breakup of the USSR as a political entity had just occurred, and the Member States were rather keen on asserting their newly gained sovereignty. Another factor was the unbalanced economic interdependence between Russia and the other post-Soviet States, which did not encourage Russia to embark on further integration. In fact, the CIS was not particularly favourable to Russia, since it obliged it to open its domestic market to imports coming from less 32

Hereinafter referred to as ‘the CIS’.

33

See Article 4 of the Charter of the Commonwealth of Independent States, (No.31139, Minsk, adopted on 22 January 1993).

34

ibid Article 19.

35

Rilka Dragneva and Kataryna Wolczuk, Ukraine between the EU and Russia: The integration challenge (1st edn, Palgrave Macmillan UK 2015) 14-19.

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competitive CIS States and to provide them with raw materials and energy at discounted prices. Over time, political support for the CIS dwindled, due to the diverging economic orientations of its Member States. Once the post-Soviet States had recovered from the initial shock of the breakup of the USSR, the CIS essentially lost its purpose.

From a legal perspective it is worth pointing out that the CIS was never meant to become a successor of the USSR. On the contrary, its founding documents declared that the ‘USSR as a subject of international law and a geopolitical reality no longer existed’36 and stated that the CIS was open for membership not only to all ex-USSR republics, but to other States ‘sharing the purposes and principles of the founding agreement’.37 Furthermore, according to the Declaration of Almaty of 21 December 1991, the CIS is defined in negative specifications as ‘neither a State nor a supranational structure’, in which cooperation shall be ‘carried out in accordance with the principle of equality through coordinating institutions formed on a parity basis.’38 The CIS Charter adopted on 22 January 1993 – but not ratified by all Member States – defined the CIS also in negative terms as ‘not a State’ and ‘not holding supranational powers’, while emphasising that ‘the Member States are independent and equal subjects of international law.’39 In its structure, the CIS can be described as a multitude of legal regimes, including a confederation-like nucleus constituted by some States striving for closer forms of cooperation, and a looser structure of legal links with other participating States based on various types of membership, reservations to constituent instruments and selective participation in the acts passed by the CIS. One of the CIS’ main disadvantages was precisely its fragmented legal system, composed of numerous agreements, as well as its clear and imprecise norms.40 As a result, the multilateral regime did not foster effective domestic implementation. Furthermore, there was no 36

Declaration of Almaty (adopted on 21 December 1991) para 13.

37

CIS Charter (n 31) Article 7.

38

Declaration of Almaty (n 34) para 10.

39

CIS Charter (n 31) Article 1.

40

Dragneva (n 36) 17-19.

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effective binding mechanism to ensure compliance with the obligation undertaken by the Member States. Even though a permanent judicial body – the Economic Court of the CIS – was established which was empowered to rule over State disputes, its rulings only had the status of recommendations.41 The role of this judicial body therefore proved to be nominal. Consequently, despite the rhetoric, the CIS multilateral framework ultimately relied on high-level diplomacy and traditional power mechanisms. Investing in the design of an institutional framework, capable of enabling integration within the CIS was clearly not at the core of Russia’s economic cooperation strategy.

The CIS is commonly regarded as a multilateral platform which did not live up to its promises.42 Nevertheless, the integration processes which followed learnt from the CIS experience, as many of its shortcomings were clearly remedied.

3.2 Eurasian Economic Community In the early 2000’s, with Vladimir Putin’s ascension to power, Russia’s focus of interest shifted again towards Eurasia, as documented in the ‘Foreign Policy Concept’ which explicitly mentioned the cooperation with the Member States of the CIS as the key strategic priority.43 A result of this strategy change was the creation of two new regional organisations, namely the Eurasian Economic Community44 and the Collective Security Treaty Organization45, which gave Eurasian integration a better-defined institutional structure. Inspired by the European integration experience, the EAEC became an elaborate and 41

CIS Charter (n 34) Article 32.

42

Tony van der Togt and others, ‘From Competition To Compatibility: Striking A Eurasian Balance’ (Clingendael Report, Netherlands Institute of International Relations 2015) 13; Madalina Sisu Vicari, ‘The Eurasian Economic Union – Approaching the economic integration in the post-Soviet space by EU-emulated elements’ [2016] 55 Revue Interventions Économiques 4.

43

‘The Foreign Policy Concept of the Russian Federation’ (Approved by the President of the Russian Federation Vladimir Putin, 28 June 2000) < http://www.bits.de/EURA/russia052800. pdf> accessed 10 August 2017.

44

Hereinafter referred to as ‘the EAEC’.

45

Hereinafter referred to as ‘the CSTO’.

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complex organisation, with an Interstate Council (of heads of State), an Integration Committee and Secretariat (as the main executive body), an Inter-Parliamentary Assembly, and a Court of Justice. The new organisation was given the task of creating a Customs Union46 and a Single Economic Space47, this time with clear deadlines, in accordance with a specific schedule.48 The multiphase integration process comprising three steps started with the establishment of the CU between Russia, Belarus, and Kazakhstan in July 2010.49 The three Member States negotiated a common external tariff, customs norms, and the setup of regulatory bodies. The Customs Code adopted in November 2009 replaced the domestic legislation of the Member States by becoming the applicable law in CU matters. It has been described as a piece of modern customs legislation simplifying customs requirements and implementing the provisions of key international conventions in the field.

The concrete implementation of the CU started in the following year, when intra-CU border controls over a wide range of goods were lifted and subsequently introduced towards non-CU countries. The second step was the establishment of the SES in January 2012. Besides the elimination of internal tariffs for goods, market freedoms were guaranteed for services, capital and labour; the latter to be implemented in the medium term. Furthermore, Member States committed to coordination in key areas such as macroeconomic policies, competition, transport, and energy.

Within the institutional framework, the Eurasian Economic Commission,50 established in February 2012 as a permanent regulatory body with its headquarters in Moscow, played a central role. Its main tasks were to ensure the proper development of the integration pro46

Hereinafter referred to as ‘the CU’.

47

Hereinafter referred to as ‘the SES’.

48

Adel Galiakberov and AdelAbdullin, ‘Theory and practice of regional integration based on the EurAsEC model (Russian point of view)’ [2014] 5(2) Journal of Eurasian Studies 116, 118-120.

49

Ksenia Kirkham, ‘The formation of the Eurasian Economic Union: How successful is the Russian regional hegemony?’ [2016] 7(2) Journal of Eurasian Studies 111,117.

50

Hereinafter referred to as ‘the EEC’.

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cess, as well as to submit proposals for its continuation. In addition, the EEC was to ensure the external representation of the entire bloc in trade negotiations. A considerable novelty was its power to adopt decisions binding on the Member States. In all those areas where competence was delegated to the supranational level, the EEC had the authority to legislate,51 even if the decision-making process foresaw an involvement of the Member States. Moreover, an independent judicial body was established in the same year in Minsk, its rulings being binding on the Member States. The Court’s role consisted in ensuring compliance with the agreements concluded within the EAEC, to interpret the treaties as well as to settle disputes. It is worth mentioning that private individuals were allowed to challenge EEC acts before the Court, even though the implementation of the rulings remained at national sovereign discretion.52

4. The EAEU as the most advanced stage of integration in the Eurasian space As third step in the integration schedule, on 29 May 2014, the leaders of Russia, Belarus, and Kazakhstan gathered in Astana to sign the Treaty on the Eurasian Economic Union,53 which entered into force on 1 January 2015.54 By then, Armenia had joined the agreement, followed only a few months later by Kyrgyzstan. The creation of the EAEU implied, legally speaking, the simultaneous dissolution of the EAEC.55 Due to its ambitious objectives and the progress made to this 51

Hans-Michael Woffgang,Gennadiy Brovka and Igor Belozerov, ‘The Eurasian Customs Union in transition’ [2013] 7(2) World Customs Journal 93, 96.

52

Dmitry Davydenko and Andrey Kalimanov, ‘Court Of Eurasian Economic Community Renders Its First Judgement’ (CIS Arbitration Forum, 19 November 2012) <http://www.cisarbitration.com/2012/11/19/court-of-eurasian-economic-community-renders-its-first-judgement/> accessed 10 August 2017).

53

Hereinafter referred to as ‘the TEAEU’.

54

Treaty on the Eurasian Economic Union (signed 29 May 2014, adopted on 1 January 2015) <http://www.un.org/en/ga/sixth/70/docs/treaty_on_eeu.pdf> accessed 10 August 2017.

55

The Agreement on the dissolution of the EAEC was signed at a meeting of the EAEC Intergovernmental Council in Minsk on 10 October 2014, entering into force on 1 January 2015.

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date, this integration system must be seen as the most advanced one in the Eurasian space. The following account will elaborate on political, legal, and economic aspects in relation to the integration process.

4.1 The rationale(s) behind the creation of the EAEU The objectives pursued by the Member States with the creation of the EAEU are economic in nature. This can be deduced from the name of the EAEU itself, which had been a matter of debate among the governments prior to the establishment of the organisation,56 as well as in the frequent reference hereto in various provisions. More specifically, Article 1(2) TEAEU provides that an international organisation of ‘regional economic integration’, bestowed with international legal personality shall be established.57 According to Article 1(1) TEAEU, this international organisation shall ensure free movement of goods, services, capital, and labour within its borders, as well as coordinated, agreed or common policy in the economic sectors determined under this Treaty and other international treaties concluded within the framework of the organisation. Integration shall, as specified in Article 4 TEAEU, be achieved by creating a common market for goods, services, capital and labour and by ensuring comprehensive modernisation, cooperation, and competitiveness of national economies within the global economy.58 The ultimate socio-economic goal behind these measures is to create proper conditions for sustainable economic development of the Member States in order to improve the living standards of their population. Pursuant to Article 5(2) and (3) TEAEU59, the Member States shall implement coordinated or agreed policy in spheres of the economy covered by the scope of the TEAEU and other treaties concluded within this framework.

As mentioned above, the TEAEU defines the integration objective 56

Nicu Popescu, ‘Eurasian Union: the real, the imaginary and the likely’ (Chaillot Paper, No. 132, EU Institute for Security Studies 2014) 21.

57

Treaty on the Eurasian Economic Union (n 55) Article 1(1).

58

Treaty on the Eurasian Economic Union (n 55) Article 4.

59

Treaty on the Eurasian Economic Union (n 55) Article 5(2) and (3).

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as ‘economic’, implicitly excluding any aspiration towards the establishment of a political Union between the Member States.60 This view is further confirmed by Article 3 TEAEU, which lists the basic principles of functioning of the integration systems, inter alia the ‘respect for specific features of the political structures of the Member States’ as well as their ‘sovereign equality’. As for each individual Member State, the motivation to participate in the Eurasian integration process differs depending on economic and political interests. Belarus has so far taken part in all Russian-led attempts to Eurasian integration, including the Union State between both countries, initiated in 1996 and strengthened in the following years. With its economy being heavily dependent on Russia, Belarus has made its participation conditional upon Russian loans and preferential treatment, e.g. energy supply at discount prices. It sees in the establishment of a common oil market a guarantor for stability of supply. Another reason was the need to overcome the economic crisis in 2011. Not yet a member of the World Trade Organization,61 and politically isolated from Europe, Minsk needed financial support from Moscow for its own survival.

As far as Kazakhstan is concerned, President Nazarbayev’s support to Eurasian integration, 20 years after his first proposal, allowed him to be remembered as one of the ‘founding fathers’ of the integration process. Kazakhstan’s interest mainly consists in ensuring access to the vast Russian market and having a counterbalance to China’s growing influence in the country. Both President Nazarbayev and the Belarusian President Aleksandr Lukashenko have repeatedly stressed the purely ‘economic’ nature of the project and have been eager to defend publicly their respective country’s sovereignty against Russia’s endeavours to transform the integration process into more of a political Union.62 By the same logic, plans to introduce a single currency, thus giving rise to a monetary Union, have been rejected by the other 60

According to the theory of regional economic integration, a political union is understood to be the final stage after the creation of a free trade zone, a customs union, a common market, a monetary, and an economic union between the participating States.

61

Hereinafter referred to as ‘the WTO’.

62

Fernando Garcés de los Fayos Tournan, ‘The Signature of the Eurasian Union Treaty: A Difficult Birth, an Uncertain Future’ (Policy Department DG EXPO, European Parliament 2014); Popescu (n 57) 21.

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Member States as an infringement of their sovereignty.63 These aspirations are connected with Russia’s geopolitical strategy, believed to aim at gaining political influence in the post-Soviet space, against the growing presence of the EU and China. Whether the integration lives up to the objectives set, will be discussed in the further course of this article.

4.2 Partial emulation of the supranational EU model of integration The plan to establish a customs Union and a common market within a fraction of the time needed by the EU, shows unmistakably the degree of ambition within which regional economic integration is pursued by the Member States of the EAEU. An analysis of objectives, mechanisms of integration, and institutional framework reveals that the integration process embarked on by the EAEU is largely inspired by the experience made by the EU despite the different political, economic, and social backgrounds.

As regards the objectives pursued, it has already been mentioned that the EAEU has undergone several steps of evolution, passing from a network of free-trade agreements concluded within the CIS, the subsequent creation of a customs Union – an objective achieved in 2010 – to the gradual establishment of a common market. By so doing, the EAEU has followed the example set by the EU over almost 60 years of continued regional economic integration. Another important feature adopted by the EAEU is the resort to a similar institutional framework, characterised by bodies acting within their respective areas of competence in fulfilment of specific tasks, which essentially emulates the legislative, the executive, and judicial branch of government within a State (‘institutional balance’).64 This is complemented by Article 5(1) TEAEU, codifying the ‘principle of conferral’, well63

International Crisis Group, ‘The Eurasian Economic Union: Power, Politics and Trade’ (Europe and Central Asia Report No. 240, 2016) 13.

64

Petrov and Kalinichenko (n 13) 302.

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known in EU law,65 which lays down the obligation for the integration system, as an autonomous legal entity, to act merely within the scope and limits determined by the treaties conferring competence. In addition, the EAEU has opted for a format of integration similar to the one introduced by the EU in so far as it presents certain supranational elements.66 This is, in particular, the case for the decisions adopted by the EEC and the procedures before the Court of Justice67, which shall be explained in further detail below.

Nonetheless, in order to properly understand integration within the EAEU, it appears necessary to look beyond the apparent similarities. A critical view is required in order to avoid any misunderstandings implying the unlimited adoption of the EU model in Eurasia. A closer examination of the integration systems allows concluding that certain elements characteristic for the EU model were toned down or completely eliminated. For example, contrary to the model set by the EU,68 the EAEU does not openly pursue integration potentially leading to a political Union. Furthermore, no clear reference to democracy, rule of law or human rights is made in the founding treaties of the EAEU, which suggests a possible indifferent stance by the Member States towards these values. Merely the second recital in the TEAEU’s preamble reminds vaguely of the protection of fundamental rights by referring to ‘the need for unconditional respect for the rule of constitutional rights and freedoms of man and national’, however, without specifying which are these rights and freedoms and how they could possibly be safeguarded in areas falling within the competence of the Eurasian bodies.

It should not be left unmentioned that this new legal system does 65

See Consolidated Version of the Treaty on European Union [2016] OJ C202/13, Article 4(1), 5(1) and (2)..

66

Vicari (n 43) 8.

67

Hereinafter referred to as ‘the EAEU-CJ’.

68

Regarding the EU’s gradual evolution into an entity showing an institutional structure similar to the ones existing in federal States around the globe, seeWerner Miguel Kühn Baca, ‘The principle of mutual recognition of judicial decisions in EU law in the light of the ‘Full Faith and Credit’ clause of the US Constitution’ [2014] 47(140) Boletín Mexicano de Derecho Comparado 449, 449-484.

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not yet have a catalogue – neither codified nor developed by the caselaw of the EAEU-CJ69 – of fundamental rights.70 This circumstance certainly must suit certain Member States, in which the principles mentioned above have not attained an optimal level of development.

In fact, most governments in the EAEU Member States must be characterised as autocratic,71 with a patent emphasis on the constitutional role of every State’s president, thus confirming the assessment.

Moreover, the founding treaties do not provide an answer to the question as to whether any ‘Eurasian’ identity in form of a cultural link exists, which would encourage integration between the participating States. The only apparent common cultural-historical trait appears to be the influence of Russian culture as well as the shared Soviet heritage.72 Certainly, the fact of belonging to the same political entity for decades has forged some clear cultural and economic ties. However, apart from these characteristics, nothing indicates that the EAEU would constitute a ‘closed club’ restricted to post-Soviet republics or could not possibly incorporate States in other geographical areas. This aspect will be examined in the context of the EAEU’s increased activity in the area of international relations.

4.3 Institutional framework One of the most significant moments in the evolution of the EAEU has been the creation of an institutional framework able to push the integration agenda. A milestone was the establishment of 69

However, the EAEU-CJ has referred to the ‘right of judicial protection’ in its judgement of 21 June 2016 in Cases Nos CE-1-2/2/2-16-KC and CE-1-2-2/2-16-AП (ZAO ‘General Freight’).

70

See Alexei S. Ispolinov, ‘First Judgements of the Court of the Eurasian Economic Community: Reviewing Private Rights in a New Regional Agreement’ [2013] 40(3) Legal Issues of Economic Integration 225, 244.

71

Vladimir Papava, ‘Georgia’s Choice: The European Union or the Eurasian Economic Union’ [2016] 57, Georgian Foundation for Strategic and International Studies 3,10.

72

See Sean P. Roberts and Arkady Moshes, ‘The Eurasian Economic Union: a case of reproductive integration?’ [2015] 32(6) Post-Soviet Affairs 542, 552;; Bulat Mukhamediyev, Azimzhan Khitakhunov and Richard Pomfret, ‘Eurasian Economic Union: present and future perspectives’ [2017] 50(1) Economic Change and Restructuring Empirical and Policy Research on the Transitional and Emerging Economies 59, 61.

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the CU in 2010, by which the grouping composed by Russia, Belarus, and Kazakhstan was transformed into a fully-fledged international organisation, followed by the creation of the EEC and the Court of Justice in 2012. Although the EAEC was dissolved with the creation of the EAEU, the latter essentially inherited its institutional framework, though not without making a number of adjustments. The following account reflects the current state of development of the EAEU.

4.3.1 Eurasian Supreme Council The highest EAEU institution is the Supreme Council, which consists of the heads of States.73 It considers the issues of principle regarding the functioning of the EAEU, determines the strategy, directions and perspectives of integration development and makes decisions to implement EAEU objectives. One of the main competences of the Supreme Council is to control all budgetary issues. Overall, based on its function, the Supreme Council is comparable to the European Council in the EU, even though the former has more powers. The next institution in the hierarchy is the Intergovernmental Council, which previously was only a formation of the Supreme Council consisting of the heads of the Member States’ governments. Essentially, it can be considered to be the same, even though it is established as a separate body. It has within its competence the realisation and control of the compliance with the founding treaty, international treaties within the EAEU framework, and the decisions of the Supreme Council.

4.3.2. Eurasian Economic Commission 4.3.2.1 Composition and competences The EEC is the permanent governing body of the EAEU, which consists of two distinct parts: the Commission Council and Com73

Treaty on the Eurasian Economic Union (n 55) Article 10.

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mission Board.74 The Commission Council performs the overall regulation of the integration processes of the EAEU and the overall management of the EEC’s activities. The Council consists of one representative from each Member State, acting as deputy heads of government. Therefore, this position is political. The Commission Board is the executive body of the EEC. The Board consists of three representatives per Member State. The Supreme Council approves the composition of the Board and the duties of its members. The Board is the only body in the whole Union that has an exhaustive list of competences. One of the important competences of the Board is the monitoring and control of compliance with the international agreements concluded within the EAEU framework.

4.3.2.2 Limited supranational nature As already mentioned, a critical view of the institutional framework is necessary in order to look beyond the apparent structural similarities between the EAEU and the EU. Their structures are not entirely comparable and it is difficult to identify the equivalent institutions and their respective functions. One of the most obvious differences is the structure and composition of the EEC. The official EAEU website describes the EEC as a ‘permanent supranational regulatory body’ of the EAEU.75 Assuming the accuracy of this assertion, the EEC (together with its predecessor, the Commission of the CU) would be the first institution in the post-Soviet space to be officially considered supranational.

While there is certainly no official definition of ‘supranationality’ in public international law, it is generally assumed that it presupposes the presence of a number of characteristics in international organisations such as (1) the ability of the decision-making body to adopt legal acts having direct effect in the national legal orders of the Member States, which implies that no implementation is needed; (2) these 74

ibid Article 18(1).

75

See the website of the EEC, describing composition and functions of this EAEU institution <http://www.eurasiancommission.org/en/Pages/about.aspx> accessed 11 August 2017.

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legal acts having supremacy of the conflicting national law; (3) the adoption of these acts based on a majority decision of the representatives of the Member States instead of consensus, as common for intergovernmental organisations; (4) ability to enforce decisions; (5) legal personality of the international organisation, distinguishable from that of its Member States; and (6) financial autonomy. Once these elements are given, it may be assumed that the international organisation constitutes an autonomous entity, capable of adopting legal acts in accordance with its own decision-making procedure, the sum of these acts will constitute a legal order sui generis, thus abandoning the typical classification of public international law.

In light of the above explanations, the official classification of the EEC as supranational must be nuanced, as it only partly fulfils these requirements.76 Rather than an institution, the EEC appears to be an organisation within another organisation, since it encompasses two important bodies with differences in terms of composition, competence, and decision-making procedure. The Council is clearly an intergovernmental body, which adopts decisions solely by consensus and is composed of members of the national governments.

The Board, in contrast, is composed of staff members obliged to act independently from their governments77 and its decisions are adopted by qualified majority (though by consensus in certain cases)78.

Consequently, only the Board, and not the whole Commission, could be possibly compared to the European Commission with its supranational format, which consists of independent members. Conversely, the Commission Council could be compared to the Council of the EU, in the sense that it represents the interests of the national governments.

There is an important difference though, which consists in the fact that voting in the Council of the EU has been modified in the 76

Criteria (1), (2) and (5) appear to be fulfilled in the EEC’s case, whereas criteria (3) and (4) are not or in any case not unrestrictedly, as explained in further detail in the analysis. Criterion (6) is not fulfilled, as the EAEU as such does not have a system of own resources but rather depends on financial contributions from the Member States.

77

Points 34(1) and 56(2) EEC Regulation

78

Treaty on the Eurasian Economic Union (n 55) Article 18(2)(3).

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course of the various treaty amendments so as to allow decision-making based on a qualified majority in many areas, introducing thus an important supranational element into this intergovernmental EU institution. This is not the case of the EEC Council, where all decisions are taken by unanimity. This aspect is of particular relevance, as it has the effect of seriously diminishing the supranational character of the Board. In fact, the EAEU incorporates a principle in the decision-making procedure, according to which upper-level bodies may, by consensus, invalidate decisions taken by a lower-level body.79 In case of disagreement, any decision adopted by the Board could potentially be challenged at a higher level of the institutional hierarchy, up to the highest level of the Supreme Council. Given that, first, all of the following levels are intergovernmental as regards composition and unanimity in the decision-making, and, second, Member States may challenge the decisions in question, it is guaranteed that Member States remain in control of the decision-making process, by means of what is essentially a veto power.

Furthermore, as regards the decision-making powers of the EEC Council, even under the premise that the representatives of the Member States put their national allegiances aside in an aim to pursue the path of integration for the common good of economic integration in the Eurasian region, the reality is that all important decisions are passed up the chain of command, first to the EEC Council in the form of national government deputy prime ministers, and then, if no agreement is found, to the Supreme Council. Against that backdrop, although the supranational element of the EAEU could be extended in the future, the current reality is one of hierarchy. Furthermore, the fact that this hierarchy essentially replicates the hierarchic order in the Member States makes the EAEU appear more similar to an intergovernmental rather than a supranational organisation. All these aspects make it impossible for the EEC or any of its constituent parts to become autonomous actors within the integration process.

79

ibid Articles 12 and 16.

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4.3.2.3 Absence of effective democratic checks and balances Even though it is possible to identify to a certain degree similarities between EAEU and EU institutions, it is evident that decision-making within the EAEU differs considerably from that in the EU. EU decision-making is based on a legislative process involving several institutions, with the European Commission on the one hand, which has executive functions and virtually exclusive competence for making legislative proposals, and the Council and the European Parliament as co-legislators on the other hand. The involvement of the European Parliament provides the necessary democratic legitimacy for the adoption of EU legal acts, although it should not go unmentioned in this context that also the Council of the EU, composed of democratically elected national governments and accountable to their respective parliaments, possesses the necessary democratic legitimacy.

In the EAEU, on the contrary, every institution adopts its own acts separately, and democratic legitimacy is limited to the representatives of the national governments present in the Council.

The absence of effective democratic checks and balances and the concentration of decision-making power located in the Supreme Council means that the heads of State can decide to take integration in different directions, thus helping the integration system to adapt to any new situation. This includes the possibility of multi-speed integration, in accordance with Member States’ needs. On the other hand, the EAEU model, based on presidential control has clear disadvantages: not only is the fate of the entire integration process dependent on the interpersonal relationship between national leaders and their own ability to keep power within their States, but there is considerably little room for other actors in the integration process to play their role. This is particularly true for the EEC but also for individuals and economic operators, which are meant to be those to benefit from regional economic integration. As a remedy to the lack of democratic accountability in the decision-making, the EEC has endeavoured to involve the business community through various Consulting Committees under the auspices of the EEC Board.

They are increasingly used by the EEC to involve both the business 367

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community and State entities in the discussion of important issues, giving them the opportunity to express their concerns and make proposals, summarised in the form of a Forum Resolution at the end.

Moreover, the Advisory Council on the EEC held its first session in Moscow on 20 March 2013. The EEC has also worked on developing regulatory impact analysis80 procedures, aimed at assessing the effect of supranational legislation on the business community. Despite these efforts, it is questionable that they can substitute proper public involvement, so as to provide the necessary democratic legitimacy. In fact, the RIA procedures appear to only assess the impact on business, but not any social effects. In addition, they are not built into the standard decision-making procedure, but require the EEC to carry out an assessment on its own initiative.

Against this background, the EAEU is very much characterised by a top-down process lacking any societal base. Despite this significant shortcoming, the perspective of possibly creating a Eurasian Parliament is not promising at all.81 Individual calls for embarking on such a project have faced resistance, explained by its high political sensitivity. The opinion within the EAEU institutions appears to be that the existence of a directly elected Eurasian Parliament might reveal the asymmetry within the EAEU, meaning a clear majority of seats for Russia, which might possibly antagonise nationalist forces in Kazakhstan and other much smaller Member States. The clear wish of Belarus and Kazakhstan to avoid any politicisation of the integration process, reflected in the insistence on the attribute ‘economic’, will most likely block any progress towards further democratic participation of the population to decision-making.

80

Hereinafter referred to as the ‘RIA’.

81

As presidential adviser Sergey Glazyev has recently explained, ‘[w]e are building the EAEU as functionally limited. Unlike the EU, we do not plan to create a common parliament’, Sergey Glazyev, ‘Imperative of Eurasian integration’ (Speech Conference, Inter-Regional Cooperation and Sustainability of Russian Economy at Academy of Sciences of Tarstan 2016) <http://realnoevremya.com/articles/711> accessed 11 August 2017. A significant change of mind must have taken place in the meantime, given that the EAEC as predecessor had an Inter-parliamentary Assembly consisting of deputies delegated by the parliaments of the Member States. However, the lack of balance in the number of deputies in favour of Russia was considerable (more than twice or five times higher than the other Member States).

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4.3.3 Court of Justice of the EAEU 4.3.3.1 Composition The EAEU-CJ is a permanent judicial body based in Minsk,82 whose functioning and composition is regulated by Article 19 TEAEU83 and the Statute of the EAEU-CJ, incorporated as Annex 2 to this treaty.84 The EAEU-CJ is tasked with ensuring application by the Member States and the bodies of the integration system of the TEAEU, of the international treaties concluded within its framework or between the EAEU and third parties as well as of the decisions adopted by the EAEU bodies. The EAEU-CJ consists of two judges from every Member State, appointed for a period of nine years. All judges shall be of high moral character, highly qualified in the field of international and domestic law, and shall usually meet the requirements applicable to judges of the highest judicial authorities of the Member States.85 The Supreme Council confirms nominations from the Member States and can also dismiss them.86 However, the Member States (as well as the EAEU-CJ and the judges themselves) can also initiate the dismissal of a judge.87 Most of the current judges have a track record in the former court of the EAEC (EAEC-CJ), which had started its functioning in January 2012. With the entry into force of the TEAEU on 1 January 2015, the EAEC-CJ has ceased to exist, paving the way for the new EAEU-CJ.

4.3.3.2 Competences The competences of the EAEU-CJ are listed in Chapter 4 of its 82

’Court of the Eurasian Economic Union’ (courteurasian.org, 2017) <http://courteurasian.org/ en/> accessed 11 August 2017.

83

Treaty on the Eurasian Economic Union (n 55) Article 19.

84

Statute of the Court of the Eurasian Economic Union (adopted 1 January 2015).

85

ibid para 9.

86

ibid paras 10 and 11.

87

ibid para 13.

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Statute.88 Essentially, the EAEU-CJ can act on actions filed by Member States but also by economic entities registered either within or outside the EAEU. The aim of this judicial body is to secure a uniform application of the legal provisions of which the legal system of the EAEU is composed.

The economic entities may submit the following disputes to the EAEU-CJ: - on the compatibility of the decisions made by the EEC and its particular provisions which directly affect the rights and legitimate interests of the economic entity in the area of entrepreneurial or other economic activity if such decision or particular provisions lead to the breach of rights and legitimate interests of the economic entity; - on appeal of actions or inactions of the EEC which directly affect the rights and legitimate interests of the economic entity in the area of entrepreneurial or other economic activity, if such action or inaction lead to the breach of rights and legitimate interests of economic entity under the TEAEU. The EAEU-CJ shall consider cases either in the (regular) Chamber, against whose judgements it is possible to file an appeal before the Appeals Chamber, or the Grand Chamber.89 However, the EAEU-CJ does not have the power to hear disputes related to compensation of losses or other claims of material character. It should be further mentioned that the EAEU-CJ does not accept claims if the economic entity did not initiate the 3-month preliminary dispute settlement procedure before the EEC.90 In performing its duties, the EAEU-CJ is guided by the following sources of law: 88

For a more detailed account of the competences of the EAEU-CJ, see the author’s study of comparative supranational procedural law: Werner Miguel Kühn, ‘The Draft Protocol on the Creation of the Court of Justice of Mercosur: A New Milestone in Judicialisation of Regional Integration Law’ [2016] 3 European Law Reporter 104.

89

Statute of the Court of the Eurasian Economic Union (n 85) paras 70 and 79.

90

ibid paras 43 and 44.

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- the universally recognised principles and norms of international law; - the TEAEU; - international agreements concluded within the framework of the EAEU; - decisions and orders of the EAEU bodies.

The EAEU-CJ charges a fee for the resolution of a dispute submitted by the Economic entity or by a Member State. The fee is paid in advance and equals the value of 37, 000 Russian rubbles for the year 2015.91 According to the Statute on the EAEU-CJ, the Court shall review the dispute within a 90 days period.92 After the EAEU-CJ has issued a decision, the EEC has to enforce it no later than 60 calendar days unless otherwise indicated in the decision. In case the EEC does not enforce the decision, the economic entity has the right to refer to the EAEU-CJ with a petition on adopting measures for its enforcement.

Then the EAEU-CJ within a period of 15 calendar days shall submit the petition to the Supreme Eurasian Union Council in order to decide on the matter. The acts of the EAEU-CJ have to be published in the official bulletin of the EAEU-CJ as well as on its official web site.93

4.3.3.3 Critical remarks Although the EAEU-CJ is intended to be the judicial body of this integration system, entrusted with the task of settling disputes concerning the interpretation of the provisions, which are part of its legal system, with the aim of ensuring their uniform interpretation, there 91

Decision of the Supreme Eurasian Economic Council No. 85 of 10 October 2014 concerning the identification of the amount, currency and procedures for the payment, use and refund of the duty paid by business entities applying to the EAEU-CJ. 92

Rules of procedure of the Court of Eurasian Economic Union, Article 37(1); Statute of the Statute of the Court of the Eurasian Economic Union (n 85) para 96.

93

Statute of the Court of the Eurasian Economic Union, Rules of Procedure (n 85 .) Article 21(1).

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are a few legal aspects worth pointing out, as they appear liable to undermine this role.

First of all, it is important mentioning that the competences of this judicial body have been curbed with the transition of the integration process to its latest stage.94 While the EAEC-CJ was still competent to deal with requests for preliminary rulings from national Courts concerning the interpretation of EAEC law,95 this type of procedure has now been abolished. Even though this procedure had been used only once, its importance for the enforcement and development of integration law cannot be overstated, as the history of other integration systems with similar types of procedure shows.96 The same applies to the infringement procedure, by which, under the previous legal regime, the EEC could sue Member States for non-compliance with integration law.97 With the abolishment of this other type of procedure, the EAEU-CJ has lost the competence to establish a breach by means of a legally binding judgement upon request by a supranational body pursuing the common interest. Instead, Member States are now required to directly sue the Member State acting in breach of Eurasian law before the EAEU-CJ. However, due to the fact that Member States are generally reluctant to file actions against each other out of fear of retaliation, the loss of the infringement procedure with the participation of a supranational ‘guardian of the treaties’ might eventually encourage the recourse to diplomatic negotiations and, only as a last option, to the dispute settlement mechanism.98 Diplomatic negotiations might, however, ultimately prove detrimental to legal certainty and to the rule of law in general. By contrast, judicial decisions in infringement proceedings provide guidance to all legal subjects on how norms must be interpreted, enriching the new legal order with a 94

Togt and others (n 43) 24.

95

Statute of the Court of the Eurasian Economic Union (n 85) Article 13(2). See Steven Blockmans,Hrant Kostanyan and IevgenVorobiov , ’Towards a Eurasian Economic Union: The challenge of integration and unity’ [2012] 75 CEPS Special Report 1, 17.

96

For a comparative study of the procedural law applied by supranational courts in Europe and Latin America, see Kühn (n 70) 104.

97

Statute of the of the Eurasian Economic Union (n 85) Article 13(4).

98

Andrei Yeliseyeu, ‘EEU Court: Limited jurisdiction, harsh on applicants, marginally popular’ [2015] 5 Eurasian Review, Belarusian Institute of Strategic Studies 2.

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body of case-law. The recent application by Russia against Belarus in connection with an alleged breach by the latter of the legal provisions regulating the free movement of goods within the CU.gives reason for optimism that this risk might not materialise.99 Furthermore, it is noteworthy that there is no provision establishing the EAEU-CJ’s exclusive jurisdiction and jurisprudence,100 implicitly suggesting that there might be other mechanisms aimed at interpreting the rules within the EAEU’s legal system. This conclusion is supported by paragraph 47 of the Statute, which stipulates that ‘providing clarifications by the EAEU-CJ’s shall mean providing an advisory opinion and shall not deprive the Member States of the right for joint interpretation of international treaties.’ 101This sentence must be construed as meaning that the interpretation of the rules given by the EAEU-CJ on request of the Member States or institutions is merely consultative and that Member States may decide by common accord on how to interpret these rules. Another point of evidence of the lack of exclusive jurisdiction can be found in Article 112 TEAEU, according to which ‘any disputes relating to the interpretation and/or application of provisions of this Treaty shall be settled through consultations and negotiations.’102 The rules concerning the settlement of disputes prioritise diplomatic solutions over judicial decisions, allowing a referral of the dispute to the EAEU-CJ only ‘if the parties do not agree on the use of other resolution procedures.’ This aspect giving Member States the ultimate power of interpretation must be seen as a weak point of the EAEU’s legal system, as it undermines the authority of EAEU-CJ’s rulings.

The EAEU-CJ is deprived of the power to impose penalties on Member States for breach of integration law, ultimately making law enforcement less efficient. Instead, recourse is made to a ‘diplomatic’ 99

ibid.

100

Maksim Karliuk, ‘The Eurasian Economic Union: An EU-like legal order in the post-soviet space?’ (WP BRP 53, National Research University Higher School of Economics, Basic Research Program 2015) 18.

101

Statute of the Court of the Eurasian Economic Union (n 85) para 47.

102

Statute of the Court of the Eurasian Economic Union (n 85) Article 112.

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mechanism laid down in paragraph 114 of the Statute, which stipulates that, ‘if a judgement is not implemented, the issue can be referred to the Supreme Council, in request of measures required for the judgement’s execution.’103 The disadvantage of this mechanism is that decisions are taken unanimously at Supreme Council level, meaning that all Member States participate in the voting, including the defendant, as there are no provisions to prevent them from doing so. As a result, a Member State reluctant to comply with a judgement delivered by the EAEU-CJ could theoretically block any decisions addressed to it, thus paving the way to open-ended negotiations. This, in turn, implies an additional element of legal uncertainty.

Another critical aspect is related to the Member State’s ability to initiate the termination of a judge’s duties upon fulfilment of certain conditions.104 This provision might encroach upon judicial independence and, therefore, undermines the EAEU-CJ’s supranational nature. Potentially detrimental to judicial independence is also the fact that the EAEU-CJ allows for dissenting opinions,105 which makes the dissenters’ identity public, ultimately making judges vulnerable to pressure. Dissenting opinions may also expose inconsistencies in case-law or disagreements between the judges, harming the authority of the EAEU-CJ as judicial body. Despite these issues, paragraph 53 of the Statute elevates the independence of judges to one of the basic principles of judicial proceedings at the EAEU-CJ.106 As already mentioned, the evolution of the founding treaties providing the legal basis for the Eurasian integration process is characterised by a clear intention of the drafters to limit the powers of the judicial body. Apart from the aspects referred to above, two specific provisions must be cited, which clearly reflect this intention. First, paragraph 42 of the Statute stipulates that the EAEU-CJ does not have the power to create competences for EAEU institutions in addition to 103

Statute of the Court of the Eurasian Economic Union (n 85) para 114.

104

Statute of the Court of the Eurasian Economic Union, Rules of procedure (n 85) para 13.

105

Statute of the Court of the Eurasian Economic Union, Rules of Procedure (n 84) article 79.

106

Statute of the Court of the Eurasian Economic Union (n 85) para 53.

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those explicitly provided for in the treaties.107 Behind this reiteration of the ‘principle of conferral’, already laid down in Article 5(1) TEAEU, is the aim of limiting the EAEU-CJ’s ability to develop the so-called ‘implied powers’ of the international organisation, which might eventually lead to a more autonomous evolution of the integration process.108 By setting limits for the legislative and administrative powers of the integration system’s bodies regardless of the objectives pursued, the supranational character of the EAEU is diminished. Second, paragraph 102 of the Statute provides that ‘no decision of the Court may alter and/or override the effective rules of the Union law and the legislation of the Member States, nor may it create new ones.’109 This provision is problematic, as it seems to reduce the EAEU-CJ’s rulings to merely non-binding opinions on the interpretation of integration law. While it remains to be seen how this provision will be applied in practice, it can be said for sure that a potential inability of the EAEU-CJ to alter or declare void acts of secondary law adopted by the EEC would constitute an issue undermining any attempt to put in place an institutional balance between the administrative and the judicial branches. Moreover, in so far as the EAEU-CJ appears to be precluded by this provision from declaring that integration law takes precedence over national law, it can be presumed that the drafters must have avoided acknowledging the supranational nature of this new legal system. Given the fact that none of these two provisions existed under the previous legal regime, it is reasonable to presume that the judicial activism shown by the EAEC-CJ in its early years of existence110 might have alarmed the Member States and ultimately persuaded them to take a more cautious approach at the time of drafting the EAEU’s founding treaties.

In view of the issues pointed out, it is uncertain how the EAEU-CJ could ever succeed in ensuring the uniform interpretation and appli107

Statute of the Court of the Eurasian Economic Union (n 85) Article 42.

108

Treaty on the Eurasian Economic Union (n 55) Article 5(1).

109

Statute of the Court of the Eurasian Economic Union (n 85) para 102.

110

See Maksim Kariluk, ‘The limits of judiciary within the Eurasian Integration Process’ (WP BRP 69, National Research University Higher School of Economics, Basic Research Program 2016) 7.

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cation of Eurasian law. A number of features have been incorporated into the founding treaties, which prevent it from unfolding its full potential as a judicial body able to contribute to the development of the Eurasian legal system.

4.4 The Eurasian legal system 4.4.1 Main characteristics The Eurasian legal system encompasses countries which were recently part of the Russian Empire and the USSR and therefore share similar legal traditions. This legal system essentially constitutes a fusion of the Roman continental and the Soviet socialist legal systems.

Following their typical positivist approach, this recently created legal system, avoids for the most part any reference to abstract principles and values, relying instead on concepts explicitly codified within the TEAEU as the core of this integration system’s legal framework and the other sources of law previously referred to. As indicated above, not only are certain provisions detrimental to the evolution of the Eurasian legal system, also the TEAEU and the case-law of the EAEUCJ remain silent as regards the issue of supranationality, omitting any direct references to direct effect and supremacy of Eurasian law within the legal systems of the Member States.

A noteworthy aspect is the definition of the EAEU as an ‘international organization of regional economic integration’,111 which already circumscribes the objectives of the integration process, namely the establishment of a customs union and an internal market. This, as well as Kazakhstan’s insistence on including the term ‘economic’ in the organisation’s official name,112 makes clear that the integration process is not meant to encroach upon areas of political security, internal, and foreign affairs. A ‘functionalist’ integration approach as in the EU, whereby the achievement of economic integration goals 111

Treaty on the Eurasian Economic Union (n 55) Article 1(2).

112

International Crisis Group (n 64) 4.

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serves to attain certain forms of integration in political areas113 can therefore be discarded, regardless of the recent efforts of the EAEU to enhance its international presence even beyond the post-Soviet space. Certainly, the pursuit of merely economic integration does not preclude the evolution of the Eurasian legal system to one including elements of supranationality. An example thereof is paragraph 13 of Annex I to the TEAEUcontaining the regulation of the EEC, which provides inter alia that ‘Decisions of the Commission shall form part of Eurasian law and shall be directly applicable on the territories of the Member States.’114 However, this is the only provision within the Eurasian legal framework that evokes the notion of supranationality. This is remarkable considering that the provisions regulating the functioning of the EAEU-CJ’s predecessor still established the principle of supremacy,115 whereas this is no longer the case under the current legal regime. Again, it must be presumed that the drafters of the TEAEU shied away from conferring too much power on the newly created international organisation.

In the absence of any express reference to supremacy in the founding treaties, this matter is relegated to the level of the Member States, which are called upon to ensure enforcement of Eurasian law within their respective legal orders. Accordingly, national courts have the 113

The functionalist approach as originally conceived by Jean Monnet, precursor of European integration, foresees the identification of common economic interests by the States participating in the integration process, followed by cooperation in the relevant areas. Cooperation for the purpose of achieving the economic objectives is expected to have a ‘spill-over effect’ on other related areas, hereby increasing the interdependence between the States. Governance of the economically integrated geographical space requires the development of an advanced form of cooperation at political level, ultimately leading to a political union. The underlying objective of guaranteeing peace among the States is therefore attained by political means serving immediate economic interests (see Nikola Lj. Ilievski, ‘The concept of political integration: The perspectives of neofunctionalist theory’ [2015] 1(1) Journal of Liberty and International Affairs 38, 42).

114

Treaty on the Eurasian Economic Union (n 55) para 13.

115

See Paragraph 6 of the Statute of the EAEC-CJ, which states the following: ‘Every member state of the EAEC is bound by the decision of the EAEC-CJ in a case in which the said state is a concerned party. The decision of the EAEC-CJ is implemented by relevant organs of the concerned parties in accordance with national legislation within the period defined by respective governments as three months from the date of the decision.’ Supremacy of EAEC legal acts over national legislation was also recognised in the case-law of the EAEC-CJ (see judgement of 11 February 2014 in Case Nos. 2-4/2-2014 and 1-7/5-2013, ‘Jackpot’) and the Russian Constitutional Court (see judgement of 2 July 2013 in Case No. 1050-O, Team Niinivirta AY vVyborg Customs).

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power to specify the consequences derived from a possible incompatibility of national law with Eurasian law. Theoretically, national constitutional courts could opt to recognise the supranational nature of Eurasian law and, by so doing, contribute to its development. Given the origins of Eurasian law in public international law, constitutional courts should, in principle, have the authority to clarify its rank within the national legal systems it has been incorporated into. However, the constitutional traditions in the Member States – eager to safeguard national sovereignty – leave little room for optimism. In fact, none of the national constitutions envisages any possibility for the supremacy of Eurasian law.116 Furthermore, even though the TEAEU – just as any international agreement and other sources of Eurasian primary law – constitutes an inherent part of the national legal systems and prevails over conflicting national legislation, primacy does not affect the national constitutions. It must be therefore assumed that the Constitutional Courts of the Member States might refuse the recognition of supremacy, direct applicability, and direct effect of Eurasian law within their respective legal systems, should these principles be seen as threatening national sovereignty.

It is worth recalling in this context that the Russian Constitutional Court has repeatedly refused to recognise the supremacy of international agreements in its recent case-law. An example is the case Avangard-Agro-Orel117 concerning the direct applicability of a decision of the EEC and a judgement of the EAEC-CJ, in which the Russian Constitutional Court – exercising its alleged competence to verify the conformity of Eurasian acts with the Russian Constitution – found both the decision and the judgement to be ‘in breach of the established standard of protection of human rights and constitutional foundations in the Russian Federation.’ 118Another example is a recent ruling regarding the legal effect of decisions of the European Court of

116

Karliuk (n 103) 12.

117

Case No 417-O (2015) Russian Constitutional Court <http://doc.ksrf.ru/decision/KSRFDecision190708.pdf> accessed 12 August 2017.

118

ibid.

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Human Rights119 within the Russian legal order.120 More specifically, the Russian Constitutional Court ruled that the participation of the Russian Federation in any international treaty did not mean giving up national sovereignty. According to the Court, neither the European Convention on Human Rights121, nor the legal positions of the ECtHR based thereon, could alter the supremacy of the Constitution.

For that reason, the Court ruled that their practical implementation within the Russian legal system was only possible through recognition of the supremacy of the Constitution’s legal force.122 These examples show that, in extreme cases, the Russian Constitutional Court might not shy away from setting aside international obligations in order to safeguard national sovereignty.

Furthermore, it should not be left unmentioned that the current political situation is not favourable to a further conferral of sovereign powers to the EAEU, rather eventually leading to increased supranationality. In view of the recent political crisis between Ukraine and Russia involving the annexation of Crimea and the armed conflict in Eastern Ukraine, the other Member States appear to have become particularly wary of the consequences of a possible loss of sovereignty through integration. Furthermore, Belarus and Russia appear to show little consideration of the legal framework regulating the EAEU’s common trade policy. While Russia has adopted sanctions on the EU, obviating the EEC’s exclusive competence in the area of trade poli119

Hereinafter referred to as the ‘ECtHR’.

120

Case No 21-P (2015) Russian Constitutional Court <http://doc.ksrf.ru/decision/KSRFDecision201896.pdf> accessed 12 August 2017.

121

Hereinafter referred to as the ‘ECHR’.

122

See, for an analysis of this judgement, the ‘Final opinion on the amendments to the Federal Constitutional Law on the Constitutional Court of the Russian Federation’, adopted by the Venice Commission at its 107th Plenary Session (Venice, 10-11 June 2016). The Venice Commission has arrived at the conclusion that this judicial practice is incompatible with the obligations of the Russian Federation under international law, as a State is bound under article 26 of the Vienna Convention on the Law on Treaties (the Vienna Convention) to respect ratified international agreements and pursuant to article 27 of the Vienna Convention it cannot invoke the provisions of its internal law as justification for its failure to perform a treaty, including the ECHR. The execution of international obligations stemming from a treaty in force for a certain State is incumbent upon the State as a whole, i.e. all State bodies, including the Constitutional Court; thus, it is the duty of all State bodies to find appropriate solutions for reconciling those provisions of the treaty with the Constitution (for instance through interpretation or even the modification of the Constitution).

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cy,123 Belarus has learned to bypass the regime of sanctions for its own benefit.124 These measures, which undermine the role of the EEC as well as the EAEU’s objectives, certainly do not encourage taking additional steps towards deeper integration, as they put in evidence the shortcomings of the entire integration system.

Lastly, it should be noted that there is no territorial definition of the Member States in the founding treaties, which means they entirely refrain from specifying the geographical scope of application of Eurasian law. This point that has proved significant in view of the border disputes that persist with third States, such as Ukraine (over the Russian annexation of Crimea) and Azerbaijan (over the Armenian occupation of Nagorny-Karabach).125 This neutral approach has helped to defuse potential conflicts among the Member States due to their different allegiances, which might have undermined the integrations process.

4.4.2 The set of rules which constitute the Eurasian legal system Article 6(1) TEAEU lists the sources of the Eurasian legal system, briefly mentioned above, which can, in principle, be classified as primary and secondary law, in accordance with the categories developed in the field of regional economic integration law.126 As such the TEAEU must be regarded as primary law. .. An intermediate status in terms of hierarchy, similar to the one established within the EU legal

123

Mukhamediyev(n 74) 9.

124

See Ryhor Astapenia, ‘Belarus and the Declining Eurasian Economic Union’ (BelarusDigest, 3 December 2015) <http://belarusdigest.com/story/belarus-and-declining-eurasian-economic-union-23846> accessed 12 August 2017.

125

De lo Fayos (n 67) 9.

126

Treaty on the Eurasian Economic Union (n 55) Article 6.

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system,127 is granted by dint of Article6(2) and (3) TEAEU128 to those international treaties concluded within the integration system or with a third party. These provisions clarify that the international treaties in question shall not contradict the basic objectives, principles, and rules of the functioning of the EAEU, thus reinforcing the autonomy of the Eurasian legal system. Furthermore, primacy of primary law is ensured by the provision whereby in case of conflict between international treaties within the EAEU and the founding treaty, the latter shall prevail. Secondary law includes those acts adopted by the various bodies making up the EAEU’s institutional framework. The Eurasian legal system is characterised by a strict normative hierarchy, which becomes visible when studying the decision-making procedures, as seen before.

The strict hierarchy of norms within the Eurasian legal system, giving decisions of the Supreme Eurasian Council and the Intergovernmental Council overriding effect over decisions adopted by the EEC,129 does not alter the fact that the latter is this integration’s system executive body and permanent regulating body.130 The EEC exercises its powers in the following areas: customs tariff and non-tariff regulation; customs regulations; technical regulations; sanitary, veterinary-sanitary and phytosanitary quarantine measures; transfer and distribution of import customs duties; establishment of trade regimes for third parties; statistics of foreign and mutual trade; macroeconomic policy; competition policy; industrial and agricultural subsidies; energy policy; natural monopolies; state and/or municipal procurement; mutual trade in services and investments; transport and transportation; monetary policy; intellectual property; labour migration; financial markets (banking, insurance, the currency market, the securities market). On matters which fall under its competences, 127

International agreements concluded by the EU constitute an integral part of the EU legal system, ranking between primary and secondary EU law. This conclusion follows from, on the one hand, the requirement of compatibility with the EU Treaties (Article 218(11) TFEU) and, on the other hand, the fact that these agreements are binding upon the institutions of the EU and on its Member States (Article 216(2) TFEU).

128

Treaty on the Eurasian Economic Union (n 55) Article 6(2) and (3).

129

Treaty on the Eurasian Economic Union (n 55) Article 6(4).

130

Treaty on the Eurasian Economic Union (n 55) para 1 of Annex I.

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the EEC can sign international treaties, though only if the Supreme Council vests it of the necessary competences.131 The Board enjoys a wide range of legislative and executive powers, such as the adoption of ‘decisions’, ‘dispositions’ and ‘recommendations’; the implementation of the legal acts issued by the Supreme Council and by the Intergovernmental Council as well as of the decisions adopted by the Council of the EEC; the implementation of the international treaties forming EAEU law and of the decisions of the EEC; the representation of the EEC’s interests before Courts, including the EAEU-CJ and more. The Board has also legislative powers, though limited in scope, as it is empowered to develop its own proposals and to compile proposals of the Member States in the various areas of integration.

4.4.3 Integration policies As in other integration systems of supranational format,132 the EAEU distinguishes between various integration policies, characterised by a different degree of cooperation, namely ‘agreed’ and ‘coordinated’. The ‘coordinated’ policies are defined as policies ‘implying the cooperation between the Member States on the basis of common approaches approved within Bodies of the EAEU and required to achieve the objectives of the EAEU’. The ‘agreed’ policies are; ‘policies implemented by the Member States in various areas suggesting the harmonisation of legal regulations, including on the basis of decisions of the Bodies of the EAEU, to the extent required to achieve the objectives of the EAEU’.133 The agreed policies are conducted within the 131

Kirkham (n 50) 117.

132

The EU distinguishes between exclusive, shared and, supporting competences (Article 2 TFEU) in areas covered by the scope ratione materiae of the EU Treaties. The acts adopted by EU bodies in the exercise of these competences (Article 288 TFEU) may have binding effect, such as to create uniform legislation, to harmonise national legislation entirely or partially, or be merely non-binding, which is the case of recommendations or acts of ‘soft law’. The CAN also acts in areas of its competence, having the choice to regulate a specific aspect exhaustively or only partially by means of acts having binding effect.

133

Treaty on the Eurasian Economic Union (n 55) article 2.

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sphere of application of sanitary, veterinary-sanitary and phytosanitary quarantine measures;134 consumer protection,135 macroeconomic area;136 monetary area;137 regulation of financial markets;138 antitrust area – but only in relation with actions of economic entities of third countries affecting the competition in commodity markets of the Member States;139 agricultural area.140 The coordinated policies cover the following areas: taxation;141 energy;142 transport,143 intellectual property,144 industrial cooperation,145 the rules for granting subsidies for industrial goods and ;146 labour migration.147 The introduction of the ‘agreed’ and ‘coordinated’ policies – whose wording is evocative of intergovernmental forms of international cooperation –, coupled with the top-down decision-making system, can be regarded as an indication that the Member States have shied away from conferring powers to genuinely supranational and independent bodies.

4.5 Economics and trade 4.5.1 Establishment of a common market From an economic perspective, the establishment of the EAEU constitutes a step forward towards a new stage of integration, but 134

Treaty on the Eurasian Economic Union (n 55) Article 56(2) of Annex I.

135

Treaty on the Eurasian Economic Union (n 55) Article 31(1).

136

Treaty on the Eurasian Economic Union (n 55) Article 62(1).

137

Treaty on the Eurasian Economic Union (n 55) Article 64(1).

138

Treaty on the Eurasian Economic Union (n 55) Article 70(1).

139

Treaty on the Eurasian Economic Union (n 55) Article 74(4).

140

Treaty on the Eurasian Economic Union (n 55) Article 94(1).

141

Treaty on the Eurasian Economic Union (n 55) Article 71(1).

142

Treaty on the Eurasian Economic Union (n 55) Article 79(1).

143

Treaty on the Eurasian Economic Union (n 55) Article 86(1).

144

Treaty on the Eurasian Economic Union (n 55) Article 89.

145

Treaty on the Eurasian Economic Union (n 55) Article 92.

146

Treaty on the Eurasian Economic Union (n 55) Article 93(1).

147

Treaty on the Eurasian Economic Union (n 55) Article 96(1).

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it is not necessarily a breakthrough. The TEAEU provides for more freedom of movement of goods, services, capital, and workers148 in a common market of 182.7 million consumers,149 and lays down more detailed and extensive regulations for the sectors that have already been integrated. In 2016, a common regulation for the market in pharmaceuticals and medical devices will come into force. In some cases, the sovereignty of a Member State will be preserved in areas that have not hitherto been regulated because of their economic sensitivity. Regulations for the most contentious domains have been postponed: this concerns the creation of a common market for oil and gas (postponed until 2025), for electricity (postponed until 2019) and for services (postponed until 2025). A common transport market (for motor vehicles and rail) is to be created in several steps.150 The fact that those sectors have once again been exempted from integration under transitory provisions demonstrates that the interests of the Member States are still divergent, with some of them reluctant to accept further integration in branches of the economy considered to be of strategic significance, especially those strategically important to Russia. The fact that no agreement has been reached in those domains is also due to the fast pace of the negotiations, which has been imposed by Russia and criticised by the other Member States.

Integration is most advanced in the area of free movement of persons, in particular as regards access to labour markets. Mutual recognition of professional qualifications has been enhanced. Income tax will be paid in the country of residence from the first day of employment. Furthermore, all EAEU nationals are guaranteed equal access to basic medical care. The EAEU is currently working on adopting legislation, which shall enable the mutual recognition of professional experience and on the acquisition of pension rights by workers employed in a Member State other than the State of origin. Despite such progress, the estimated economic benefits from integration are expected to be limited due to the differences in the Member States’ economic potentials, and the fact that the creation of the common 148

Treaty on the Eurasian Economic Union (n 55) Article 1(1).

149

In comparison, the EU single market accounts for 500 million consumers.

150

Eurasian Economic Commission (n 31) 71.

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market in oil and gas and the common market in electricity, both of which are of key importance for the partners, has been postponed.

Trade exchange between the EAEU’s founding States accounted for only 12% of their total trade in 2012 and 2013 (11% in the first half of 2014). Moreover, due to the differences in economic potentials, the nature of trade exchange, and finally Russia’s central geographical position in the EAEU, integration is expected to strengthen the network of bilateral economic relations between the Member States and Russia. The creation of the EAEU is expected to consolidate the existing system of economic dependencies, and open only narrow opportunities for integration in new areas.

In the cases of Belarus and Armenia, the EAEU is likely to preserve the existing system whereby Russia has been subsidising their economies, mainly through the supplies of cheaper energy resources151 – a benefit that has become less attractive in view of the present economic situation (low oil prices and changes to the taxation of the oil sector in Russia) – and through loans granted by Russia and the Russian-dominated Eurasian Development Bank. Russia’s decision to offer preferential terms of co-operation to Belarus, Armenia, and Kyrgyzstan (at the level of bilateral economic relations with Russia) was the price that the Kremlin agreed to pay for involving those countries in the integration process.152 However, with Russia’s economy being severely hit by the sanctions adopted by the EU as a result of the military aggression against Ukraine and the oil price shock,153 Russia’s ability to maintain for a longer period of time or offer subsidies to other Member States has been hampered.

For Kazakhstan as well, Russia remains an important but also unavoidable partner, as the modernisation of its economy depends on continued access to Russian transit corridors and the huge Russian 151

Pasquale De Micco, When choosing means losing: The Eastern partners, the EU and the Eurasian Economic Union (European Commission, 2015) 52.

152

Von Sebastien Peyrouse, ‘Die Mitgliedschaft Kirgistans in der Eurasischen Wirtschaftsunion: Eine Vernunftehe?’ [2015] 88 Zentralasien-Analysen 2.

153

The consequences have been a slowdown of GDP growth, an acceleration of inflation and an increase in capital outflow. Hence, economic growth in Russia is hardly possible in medium-term and is totally dependent on external factors (see Mukhamediyev(n 73) 13).

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market of 145 million people. On the other hand, both Belarus and Kazakhstan fear that too much integration might pave the way for Russian capital to dominate their respective economies. This is particularly true for Belarus, which has proven reluctant to privatisation of the heavily owned economy out of fear of losing control over key financial flows.154 In Kazakhstan, there is also a persistent fear that bigger Russian companies might swallow up domestic competition, and this is an issue that is delaying the harmonisation of certain policies. What can be said with certainty is that participation in the EAEU exposes Kazakhstan to growing competition from stronger Russian companies on its domestic market. As the manufacturing base in the EAEU Member States is underdeveloped and obsolete, the creation of a common market will in fact facilitate the access of goods from Russia (whose industry is the most developed among them) to the markets of the other Member States, and not the other way around.

Belarus is an exception here, because nearly 50% of its exports go onto the Russian market.

Despite the cautious and gradual opening of national markets to cross-border trade due to persistent distrust of free competition with Russia that might follow from an elimination of obstacles to trade, the advantages of participating in the Eurasian integration process clearly prevail. For all Member States, the integration process offers a perspective to obtain subsidies and trade concessions, in particular in the energy sector, from Russia.155 For some, which face political isolation (like Belarus) or have small economies (like other post-Soviet Central Asian republics), the EAEU might perhaps even be the only way to connect to international trade. Consequently, the EAEA ultimately functions as a platform for insertion in the global economy, an aspect which shall be discussed in further detail below. For the Central Asian republics, membership in the EAEU represents in any case a choice for a strategic partnership with Russia, in order to balance out China’s increased activity in the region.

154

Vytautas Keršanskas, ‘Privatisation in Belarus: Far from Western standards’ [2013] 10(40) BelarusInfo Letter, Eastern Europe Studies Centre 1.

155

Sijbren De Jong, ‘Why countries are not rushing to join Putin’s union’ (Eurobserver, 27 May 2016) <https://euobserver.com/opinion/133574> accessed 12 August 2017; Papava (n 72) 10.

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4.5.2 Development of intra-regional trade When it comes to real figures, it is difficult to assess the EAEU’s success. The initial creation of the customs union coincided with a boost in intra-regional trade, up by 32.1% in 2011 to some $62 billion, and by a further 7.5% in 2012. Since then, however, the trend has been strongly downwards, falling by 5.5% in 2013, 11% in 2014 and 25.8% in 2015. By 2015 trade among EAEU Member States was down to $45 billion. In January-April 2016, trade was down 18.4%, year-on-year.

Foreign trade outside the EAEU has also been in decline for the bloc since 2012, shrinking by 34% in 2015.

The difficulty in assessing the EAEU’s direct impact on trade consists in the fact that its introduction coincided with an economic slowdown in Russia and Kazakhstan and sharp currency devaluations. Above all, the decline in oil and commodity prices skewed figures sharply downwards (mineral resources were two-thirds of EAEU exports and one-third of trade within the EAEU in 2015). As a result, foreign trade for EAEU Member States has declined with all major partners, both within and outside the EAEU. The situation has been exacerbated by the fact that the economic problems experienced undermined confidence in the integration system, ultimately leading some Member States to re-introduce trade barriers between them in order to protect their domestic markets. As a conclusion, at least in terms of intra-regional trade, the EAEU has not yet delivered the promised benefits.

4.5.3 Establishment of a customs union With the establishment of a customs union and the conferral of competence in the field of external trade policy, customs, external tariffs, and non-tariff barriers on the supranational EEC, an important shift of sovereign power has taken place in favour of the EAEU. The effect expected by the Member States from this conferral of compe387

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tences is an increase in bargaining power, which might prove useful for the conclusion of trade agreements with third States. However, doubts still persist regarding the proper functioning of the customs union, as the common external tariff does not seem to apply yet to all goods. The customs union must therefore be considered incomplete, a fact which is crucial when it comes to assessing compliance with WTO law, as shall be discussed later. Furthermore, the development of a common trade policy at supranational level, exercised by the EEC, would logically imply the loss by national authorities of the respective competence in trade matters. And yet, the unilateral adoption of sanctions by Russia against EU agricultural products, in place since 2014, without obtaining the EEC’s authorisation, has shown that the customs union’s architecture appears to lack consistency at its current state of development.156 The same applies for Russia’s embargo on Ukrainian food imports in response to the entry into force of that country’s DCFTA with the EU, the imposed obstacles on Ukrainian goods transiting to Kazakhstan and Kyrgyzstan and for the unilateral sanctions imposed against Turkey, introduced in December 2015 in response to the shoot-down of a Russian plane on the Turkish-Syrian border. In all aforementioned cases, the other EAEU Member States have refrained from supporting Russia’s position, maintaining instead cordial relations with the EU, Ukraine and Turkey. 157 This deficiency in the management of the customs union risks undermining the integration system’s external appearance and credibility towards potential trade partners. The absence of a constant and reliable contact partner is believed to be one of the reasons why the EU has so far been reluctant to recognise and establish formal contact with the EAEU.

4.6 The EAEU within the global framework for multilateral trade 4.6.1 The WTO legal framework 156

Ven der Togt (n 43) 26.

157

Andrea Chiarello, ‘Paper tiger or game-changer? Challenges and opportunities of EU engagement with the Eurasian Economic Union’ (Master Thesis, College of Europe 2014-2015) 22.

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The establishment of the EAEU’s customs union inevitably raises the question of its compatibility with WTO law, and more specifically with Paragraph 8 of Article. XXIV of the General Agreement on Tariffs and Trade158, which allows a number of States to create a common customs territory with the aim to facilitate trade between them upon fulfilment of certain conditions.159 This question is of much practical relevance, as to this date Kyrgyzstan (since 20 December 1998), Russia (since 22 August 2012) and Kazakhstan (since 30 November 2015) are WTO members, with the consequence that the EAEU will have to fulfil the aforecited conditions laid down in the multilateral trade rules once all Member States will have joined the WTO. These conditions are that States concluding economic integration agreements must eliminate duties and other restrictive trade measures for substantially all trade.

In addition, States are required to apply the same duties and other trade rules vis-à-vis third countries. Other requirements of Paragraph 5(a) of Article XXIV of GATT160 establish that when forming a customs union, duties for third countries shall not on the whole be higher or more restrictive than prior to the formation of such a union.

The Memorandum of Understanding on the Interpretation of Article XXIV of GATT explains that evaluation of the requirements of Paragraph 5(a) of Article XXIV shall be based on the changes in weighted average tariff rates and customs duties collected. Paragraph 6 of Article XXIV states that if one of the members of the customs union increases the rate of duty above the frozen level, compensatory adjustments must be arranged for the remaining members of the WTO according to the procedure provided for in Article XXVIII of GATT.161 Finally, one of the last provisions of Article XXIV of GATT is that the transitional period for the formation of a customs union or the conclusion of free trade area agreements cannot exceed 10 years.

158

Hereinafter referred to as ‘GATT’.

159

General Agreement of Tariffs and Trade (Geneva , July 2016) <https://www.wto.org/english/ docs_e/legal_e/gatt47_e.pdf> accessed 25 October 2017, Article XXIV of para 8.

160

ibid Article XXIV of para 5(a).

161

ibid Article XXIV of para 6.

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4.6.2 Legal and economic challenges The EAEU faces legal and economic challenges on a multilateral trade level. The WTO legal framework is of particular importance for the EAEU, as its rules are binding upon all States forming part of this integration system and take priority over agreements within the CU by virtue of Eurasian law regardless of any formal membership in the multilateral trade system.162 First of all, the EAEU replaced its Member States’ individual tariff regimes with a single external tariff.

In most cases this was based on pre-existing Russian trade tariffs,163 which were relatively high and therefore raised levies on imports for the more open economies of Kyrgyzstan, Kazakhstan, and Armenia, although there have been transitional arrangements for tariffs on many goods.

However, for countries such as Kyrgyzstan, which had low tariffs on its consumer-goods trade with China, the result has been higher prices on Chinese imports and difficulties for wholesale and re-export trade. Apart from these economic consequences resulting from a higher external tariff, it should be noted that Member States willing to join the WTO will have to reconcile their commitments under the WTO agreements and the TEAEU in order to avoid claims for compensation from third States, as an increase of duties for external duties for external imports would be inconsistent with the conditions for the creation of regional trade agreements under the WTO rules referred to above.164 For that reason, Kazakhstan currently has, following its accession to the WTO in November 2015, two sets of tariffs in effect, one for goods destined for other EAEU Member States and another for those destined exclusively for its home market. Kazakhstan’s WTO membership also has slowed the progress on a unified EAEU Customs Code. Initially announced for 2015, it will now come 162

Woffgang (n 52) 99; Rilka Dragneva and Kataryna Wolczuk, ‘Russia, the Eurasian Customs Union and the EU: Cooperation, Stagnation or Rivalry?’ ( Chatham House Briefing Paper 2012) 8.

163

Popescu (n 57) 12; Kirkham (n 50) 119.

164

Popescu (n 57) 23.

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into force in 2017 at the earliest. Armenia, in return, is expected to be relieved from the risk of compensatory payments from third States, as the EAEU common external tariff is expected to be decreased to a level lower than its commitment under the WTO legal framework.165 It should be noted in this context that Belarus’ accession negotiations do not appear to have progressed despite support from the EU.166 Another issue concerns the fact that even though the EAEU is meant to have formed a customs union, Russia has continuously disregarded the EEC’s exclusive competence in the area of trade policy in order to impose counter-sanctions against the EU, without even consulting the other Member States.167 Furthermore, Belarus has taken advantage of this conflict by importing goods produced in the EU and re-exporting them to Russia. These flagrant violations of customs union rules raise serious doubts as regards the viability of the integration system as a whole. They might also undermine the EAEU’s efforts to achieve recognition as a customs union under WTO law.

Regardless of these pending issues at multilateral trade level, the EAEU has recently embarked on a dynamic plan to attract potential trade partners, seeking deeper trade relations with them. The most prominent example is the conclusion of a free trade agreement between the EAEU and Vietnam in 2015, which entered into force in October 2016.168 This is one of various recent measures undertaken by the Russian-led EAEU with a view to provide the integration process with international recognition and legitimacy.

165

See Zhengizkhan Zhanaltay, ‘World Trade Organization’s Regulation Harmonization with Other Organization: Eurasian Economic Union’ (Eurasian Research Institute, 5 March 2016) <http://eurasian-research.org/en/research/comments/economy/world-trade-organization’s-regulation-harmonization-other-organization> accessed 12 August 2017.

166

Marek Dabrowski, ‘Belarus at a crossroads’ [2016] 2 Bruegel Policy Contribution 8.

167

International Crisis Group (n 64) 12.

168

Free Trade Agreement between the Eurasian Economic Union and Vietnam < http://www. eurasiancommission.org/ru/act/trade/dotp/sogl_torg/Documents/EAEU-VN_FTA.pdf> accessed 15 August 2017.

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5. The EAEU’s external action 5.1 The geopolitical dimension A principal rationale of the EAEU’s emergence is the competition between Russia and the EU in the post-Soviet space. With the launching of the EaP and the simultaneous accession of ten Central and Eastern European States the same year, the EU gained a new Eastern border with the post-Soviet space. Ukraine’s ‘Orange Revolution’ and the subsequent rapprochement of this country to the EU became a source of concern for Russia, which had hoped to keep Ukraine within its sphere of influence. The EAEU must therefore be seen – at least from a purely European perspective – as Russia’s attempt to counter the EU’s influence in its own geopolitical ‘backyard’. Far from merely destabilising Ukraine by military means with the aim to undermine this country’s Western integration, Russia has sought to challenge the EU’s ‘transformative power’ that emanates from the EaP legal framework described above by creating a sophisticated integration system in the region that emulates the EU’s basic features. The EAEU and its legal system might therefore represent, as some authors have suggested, a serious attack against the EU’s ‘normative hegemony’.169 Armenia’s more or less forced accession to the EAEU in return for security guarantees170 as well as Georgia’s choice in favour of integration with the EU as a result of its tense relations with Russia following their military confrontation in 2008171 have become paradigmatic for the clash between these two rivalling integration systems. Both countries have faced serious pressure from Russia, ultimately taking totally opposed decisions, in accordance with their respective geopolitical interests.

Considered globally, the EAEU is meant to become a building block within a ‘multipolar world’, according to the Russian viewpoint.

169

Sisu Vicari (n 43) 8.

170

Richard Weitz, ‘The Customs Union and Eurasian Union: A Primer’, Putin’s Grand Strategy: The Eurasian Union and Its Discontents (Central Asia-Caucasus Institute & Silk Road Studies Program, 2014) 36.

171

The association agreement between the EU and Georgia was formally signed on 27 June 2014. It was provisionally applied since September 2014 and entered into force on 1 July 2016 (see Papava (n 73) 9).

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As Putin has argued, the EAEU ‘is a chance for the entire post-Soviet space to become an independent centre for global development, rather than remaining on the outskirts of Europe and Asia.’172 Some Russian officials express this in almost existential terms, suggesting that Russia might be facing a choice: either become a powerful ideological and civilisational centre in its own right, or integrate with one of the existing power centres and lose its identity. In this line of thinking, the EAEU is a mechanism for Russian influence in a ‘sphere of special interests’ in the former Soviet republics, where Russia opposes Western political and security influence, particularly achieved through the kind of ‘colour revolutions’ experienced in Georgia, Kyrgyzstan, and Ukraine. Russian officials continue to see the West as a destabilising actor in Eurasia, seeking to undermine friendly regimes.173 This pleads in favour of a more politically integrated EAEU, capable of resisting such influence. This geopolitical ideology has been influenced by Russian nationalist Alexander Dugin, appreciated in certain circles of government and received with distrust by the West.174 Russia’s aspiration to use the EAEU as a geopolitical instrument to increase its influence in the world has become obvious in the EEC’s new international agenda, which encompasses the signature of memoranda of understanding with several countries around the world. The memorandum of understanding signed by the EAEU and Peru on 6 October 2015, which presents patterns common to all other memoranda175 and shall consequently be used as an example, sets out various areas of cooperation and the means to pursue such cooperation, including the creation of a Joint Working Group between the EEC and the Peruvian government, entrusted with its implementa172

See President Vladimir Putin’s statement ‘Eurasian integration to allow its members not to be on periphery of Europe and Asia’ Voice of Russia (19 September 2013) <https://sputniknews. com/voiceofrussia/news/2013_09_19/Eurasian-integration-to-allow-its-members-not-to-beon-periphery-of-Europe-and-Asia-Putin-7856/> accessed 15 August 2017.

173

Laure Delcour and Kataryna Wolczuk, ‘Spoiler or facilitator of democratization? Russia’s role in Georgia and Ukraine’ [2015] 22(3) Democratization 459, 467.

174 See Charles Clover, ‘The Unlikely Origins Of Russia’s Manifest Destiny’ (Foreign Policy, 27 July 2016) <http://foreignpolicy.com/2016/07/27/geopolitics-russia-mackinder-eurasia-heartland-dugin-ukraine-eurasianism-manifest-destiny-putin> accessed 15 August 2017.

175

Similar memoranda of understanding have been signed with Mongolia (17 June 2015), Chile (19 June 2015) and Singapore (18 May 2016).

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tion. Both parties agree to hold meetings as necessary, but at least once a year, in addition to maintaining regular contacts. The memorandum of understanding nonetheless makes clear that it is not an international agreement, does not create rights and obligations under international law and does not entail any financial obligation of either party. It is obvious that these provisions do not go beyond the establishment of diplomatic contacts aimed at exploring areas of cooperation. Interestingly, prior to the signature of the memorandum, Peru had requested observer status at the EAEU, an unprecedented event in the history of the organisation.176 However, there are reasons to believe that the EAEU might be considering deepening ties with third States even outside the post-Soviet space: the conclusion of the free trade agreement with Vietnam and the reported invitation to Syria to join the EAEU. In addition, the EAEU is said to have begun trade agreement talks with some 40 States,177 including Egypt, Israel and India, and reached a temporary trade deal with Iran in December 2015. A remarkable evolution has been the recent announcement by the Russian Government of an initiative to create a ‘Great Eurasian Partnership’ with China, India, Pakistan, Iran, the Former Yugoslav Republic of Macedonia, other CIS States, as well as other interested States and integration systems,178 although details about the legal terms of this multi-level partnership 176

On 7 November 2014, Viktor Khristenko, former Chairman of the Board of the EEC, had a meeting in Moscow with a delegation from Peru headed by the country’s former President Ollanta Humala. At the meeting, it was decided to start preparing a Memorandum of Cooperation between the EEC and the Peruvian Government to establish a dialogue on the issues the parties are interested in. During the meeting, the intent of Peru to receive a status of a EAEU observer was also discussed (‘EEC Board Chairman Viktor Khristenko Met President Of Peru Ollanta Humala’ (Eurasiancommission.org, 2014) <http://www.eurasiancommission.org/en/nae/news/ Pages/07-11-2014-3.aspx> accessed 15 August 2017).

177

See statement of the Russian Prime Minister Dimitri Medvedev of 17 October 2015 ‘Eurasian Economic Union holds free trade zone talks with about 40 States’, available at: <http://tass. com/economy/906882 http://tass.com/economy/906882> 178

See ‘Putin proposes formation of a “great Eurasian partnership”’ (Russia Beyond the Headlines, 17 June 2016) <http://rbth.com/news/2016/06/17/putin-proposes-formation-of-a-great-eurasian-partnership_603985> accessed 15 August 2017; Speech of presidential adviser Sergey Glazyev ‘Imperative of Eurasian integration’ Realnoevremya (Russia, 15 September 2016) <https:// realnoevremya.com/articles/711> accessed 15 August 2017; ‘Presidential Address To The Federal Assembly’ (President of Russia Official Website, 1 December 2016) <http://en.kremlin.ru/ events/president/news/53379> accessed 15 August 2017.

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have not yet been disclosed. There are however indications that the agreements to be concluded with third States might foresee some type of association similar to the EU’s current ENP and EaP.179 These developments are in line with the Member States’ objective to connect to global trade by using the influence of a single market of important dimensions,180 emulating the EU’s trade strategy.

An aspect theoretically posing challenges to Russia’s vision of Eurasian integration subject to its own geopolitical influence is China’s ambitious Silk Road Economic Belt181 initiative, the transport, infrastructure, and trade initiative launched by President Xi Jinping in 2013 and aimed at facilitating trade between China and Europe.182 The SREB still lacks a clear program but is backed by at least $40 billion of promised investments in infrastructure for trade routes from western China through Central Asia and Russia to the Middle East and Europe. It is still questionable how these two projects will coexist or be combined.

In May 2015, President Putin highlighted the possibility of a harmonious alignment with the Chinese initiative. In December 2015, after talks in Beijing, Prime Minister Dmitry Medvedev announced initial agreement to ‘search for points of common interest’. Working groups are putting a roadmap together, but it is hard to imagine substantive joint initiatives at this stage. It is more likely that the EAEU and China’s SREB will work largely in parallel, with China focusing on bilateral investments and infrastructure and the EAEU on cooperation among its Member States. Central Asian Member States will probably have to assess compatibility of their respective commitments with Russia under the TEAEU and those derived from future 179

See Alexander Knobel and Vladimir Pereboyev, ‘Eurasian Partnership: Potential instruments for external relations of the Eurasian Economic Union’ [2013] EDB Eurasian Integration Yearbook, Almaty 28, 43.

180

See the speech of President Nazarbayev of 31 May 2016 on the occasion of the Supreme Eurasian Economic Council meeting in expanded format, ‘Beginning of the Supreme Eurasian Economic Council meeting in expanded format’ (President of Russia Official Website, 31 May 2016) <http://en.special.kremlin.ru/catalog/keywords/82/events/52049>.

181

Hereinafter referred to as the ‘SREB’.

182

De Jong (n 157).

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agreements with China.183

5.2 Relations with the EU 5.2.1 Obstacles to a rapprochement between both integration systems The EEC’s new agenda on international affairs aimed at establishing ties of cooperation and facilitating trade with third States has not been fruitful as regards relations with the EU. Viktor Khristenko, then head of the EEC, formally requested negotiations with the European Commission in October 2015. European Commission President JeanClaude Juncker responded with a letter to President Putin in November 2015 that held out the possibility of cooperation with the EAEU under certain conditions.184 Juncker’s initiative was sharply criticised by several Eastern European Member States, in particular Poland and Lithuania. Ever since, the EU has avoided entering into official talks with the EAEU, which is ironic considering its traditional keen interest in promoting regional integration worldwide185 and its preference for inter-regional bloc-to-bloc negotiations, as is the case for the relations with the Latin American integration systems Mercosur and the Andean Community186.187 In order to understand the reluctance on the EU‘s part to establish formal relations and negotiate any kind of cooperation agreement 183

Alvin Cheng-Hin Lim, ‘China And The Eurasian Economic Union: Prospects For The Silk Road Economic Belt’ (ippreview.com, 14 May 2015) <http://ippreview.com/index.php/Home/ Blog/single/id/18.html> accessed 15 August 2017.

184

See Jean-Claude Juncker, ‘Letter On Cooperation Between EU, Eurasian Economic Union Sent By EC Chief To Putin’ (TASS, 19 November 2015) <http://tass.com/economy/837900> accessed 15 August 2017.

185

Marlene Laurelle, ‘The European Union In Reconnecting Eurasia’ (Center for Strategic and International Studies 2016) 10.

186

Hereinafter referred to as the ‘CAN’.

187

See Werner Miguel Kuhn, Die Andengemeinschaft Juristische Aspekte der internationalen Beziehungen zwischen der Europäischen Union und lateinamerikanischen Integrationssystemen im Zeitalter des Neuen Regionalismu (Shaker Verlag, Aachen 2003).

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with the EAEU one must bear the facts in mind. Khristenko’s proposal might well have been in line with the spirit of President Putin’s idea postulated back in November 2010 about ‘creating a harmonious economic community stretching from Lisbon to Vladivostok’. This would have envisaged some kind of legal connection between the two integration systems (a phenomenon referred to occasionally as ‘integration of integration’). However, circumstances have radically changed since the outbreak of hostilities over Ukraine. There are currently several important obstacles to closer links between the EU and the EAEU: - the dispute over Crimea’s status and the armed conflict in eastern Ukraine;188 - Russia’s opposition to decisions by Ukraine, Moldova, and Georgia to pursue political association and economic integration with the EU; - the desire of non-Russian EAEU Member States to maintain or enhance bilateral relations with the EU, rather than negotiate through the EAEU;189 - the difficulty of harmonising EAEU and EU rules relevant to international trade (technical standards and customs rules);190 - some Russian analysts see the proposed EU-USA Transatlantic Trade and Investment Partnership191 as making any pan-European (EU- EAEU) deal much more difficult.192 These obstacles, and especially the political disagreement over Ukraine, led many EU Member States to oppose any form of EUEAEU dialogue. In an effort to resolve the conflict in Ukraine, some EU Member States (Germany and France) involved in diplomatic ne-

Victoria Ivanchenko, ‘Debunking myths about the Eurasian Economic Union’ (Russia Direct, 19 August 2016) <http://www.russia-direct.org/opinion/debunking-myths-about-eurasian-economic-union> accessed 15 August 2017.

188

189

Weitz (n 172) 35.

190

Zagorski (n 27) 42-44.

191

Hereinafter referred to as the ‘TTIP’.

192

Evgeny Vinokurov, ‘Mega deal between the European Union and the Eurasian Economic Union’ [2014] 4 Russia in Global Politics.

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gotiations with Russia were even willing to go as far as to agree to recognise the EAEU, as endeavoured by President Putin.193 However, Russia’s failure to implement the Minsk Peace Agreements and the respective recourse to trade sanctions that ensued have made this goal impossible to achieve to this date. Given the lack of progress in the peace process, it is highly unlikely that this situation might change in the short term.

5.2.2 The association agreement concluded by the EU and Ukraine Meanwhile, the EU and Ukraine have signed an association agreement establishing a DCFTA on 27 June 2014. The agreement was simultaneously ratified by the Verkhovna Rada (the Ukrainian parliament) and the European Parliament on 16 September 2014.

In an attempt to ease Russia’s concerns – Russia was worried about the risk that EU goods might enter its market free of tariffs through Ukraine, with a possible damage for the domestic economy. The EU and Ukraine agreed to postpone the provisional application of the trade-related part of the agreement until 31 December 2015.194 From a legal perspective, the association agreement qualifies as a so-called ‘mixed agreement’, with most areas covered falling within the competence of the EU, with the consequence that a provisional application thereof is possible as far as the said areas are concerned. The approval of the EU Member States as regards those areas falling within their competence is still pending, after the process suffered a major setback with the negative outcome of a (non-binding) referendum on the agreement conducted in the Netherlands on 6 April 2016.

193

See ‘Merkel Says Free Trade Zone With Russia Possible’ RT International (Germany, 18 April 2015) <https://www.rt.com/business/250909-merkel-russia-trade-zone/> accessed 15 August 2017.

194

Even though the concerns raised by Russia were not convincing. First, the association agreement was due to be implemented over a period of 10 years, giving Russia enough time to adapt to possible changes in the trade flows. Second, the alleged incompatibility of technical standards could have been solved thanks to Russia’s positive experience with the EU on standardization (see Dragneva (n 52) 115).

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At this moment, the Dutch Government and the EU are discussing possible amendments to the association agreement liable to dispel the concerns of the Dutch electorate. Possible solutions to the impasse might include amendments ranging from merely political declarations stating that the agreement shall not lead to Ukraine’s accession to the EU to the incorporation of legally binding provisions ruling out any commitment by the Netherlands to support Ukraine in military matters.195 Since approval by each of the 28 EU Member States as well as a unanimous EU Council Decision are required before the association agreement can be officially concluded, the matter is considered urgent in EU circles. The latest seriously discussed option, which has recently acquired the approval of the European Council’s Legal Counsel,196 envisages the adoption of a ‘Decision of the Heads of States or Government meeting within the European Council’ on the association agreement, specifically discarding the conferral on Ukraine of the status of a candidate country as well as any collective security guarantees. In addition, it emphasises the unrestricted right of EU Member States to limit migration of Ukrainian jobseekers and at the same time it clarifies the absence of any obligation to provide further financial support to Ukraine. The advantage of this solution, which knows a few precedents in EU legal practice,197 lies in the fact that, as an intergovernmental agreement of public international law forming part of the EU acquis, it provides useful clarifications that are binding on the EU Member States on how to apply the provisions of 195

See Guillaume Van der Loo, ‘The Dutch Referendum on the EU-Ukraine Association Agreement – Legal options for navigating a tricky and awkward situation’ (CEPS Commentary, 2016).

196

See European Council, ‘Draft Decision of the Heads of State or Government, meeting within the European Council, on the association agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part – Form, legal nature, effects and conformity with the association agreement’ (Opinion of the Legal Counsel, EUCO 37/16 JUR 602 2016).

197

See, for instance, decisions of the Heads of State or Government, meeting within the European Council, taken in December 1992 and in June 2009 to address certain problems raised by the Government of a Member State following a referendum in that State or decisions taken by common agreement of the representatives of the Member States, including at the level of Heads of State or Government, in December 1992, October 1993 and December 2003 on the location of the seats of a number of EU institutions and bodies, in the context of Article 341 TFEU. See, more recently, the Decision of the Heads of State or Government, meeting within the European Council, concerning a new settlement for the United Kingdom within the European Union (OJ C 691, 23 February 2016, p. 1–16).

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the association agreement. Certainly, in order to become an interpretative instrument binding on Ukraine by virtue of Article 31(2)(b) of the Vienna Convention on the Law of Treaties, this Decision would have to be accepted by Ukraine. The said Decision was already adopted within the framework of the European Council of 15 December 2016.198 It should not be forgotten in this context that conclusion of the association agreement in question almost failed, as former Ukrainian President Viktor Yanukovych, under immense pressure by the Kremlin and facing possible economic disadvantages for his country resulting from a deterioration of trade relations with Russia, repeatedly delayed the signature of the agreement.199 Yanukovych was eventually removed from power through the so-called ‘Euromaidan’ revolution and replaced by a new pro-European government. In recognition of the difficulties Ukraine had to overcome, the former President of the European Council Herman Van Rompuy paid homage to the victims of the said revolution at the signing ceremony with the following words: ‘In Kiev and elsewhere, people gave their lives for this closer link to the EU. We will not forget this.’200 Against this background, whatever solution the EU might come up with for the impasse caused by the Dutch referendum, due account must be taken of the will of the Ukrainian nation to embark on an integration process with the EU. In line with the requirements laid down by the association agreements concluded within the framework of the EaP, Ukraine is obliged to a gradual and dynamic approximation of its national legislation to EU norms and standards, subject to a mechanism to monitor the application and implementation of the agreement, its objectives and commitments. The duration of the EU-Ukraine association agreement is unlimited. At the same time, the parties will undertake a 198

European Council, ‘European Council Conclusions on Ukraine’ (Brussels, 2016) <http:// www.consilium.europa.eu/en/press/press-releases/2016/12/15-euco-conclusions-ukraine> accessed 16 August 2017.

199

Dragneva and Wolczuk (n 33) 84-90.

200

Van Rompuy, ‘Statement at the signing ceremony of the Association Agreements with Georgia, Moldova and Ukraine’ (EUCO 137/14, 2014).

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comprehensive review of the achievement of objectives under the agreement within five years. Ukraine has entered the EU’s orbit of influence at the same time as it faces uncertainty as regards its territorial integrity. In retrospect, it appears ironic that Russia’s attempts to force Ukraine into joining the EAEU have achieved nothing but to alienate this country and encourage it to see its future in a partnership with the EU. Although the current standoff over Ukraine makes any rapprochement between both integration systems impossible at this stage, this does not necessarily mean that international relations cannot make any progress, more concretely at bilateral level and in technical areas.201

5.2.3 Bilateral relations between the EU and EAEU Member States Bilateral cooperation between the EAEU Member States and the EU is unbroken. This fact is due to various reasons: For the EU, the strengthening of these relations has the advantage of making it possible to reiterate the EU’s commitment to the harmonious cooperation with the individual nations, without having to assume the possible legal and political consequences of providing the EAEU – an integration system displaying at times an antagonistic attitude – with diplomatic legitimacy. Indeed, some observers fear that legitimising the EAEU as an autonomous political actor might be construed by Russia as a confirmation of its alleged rightful dominance in the post-Soviet space, with adverse effects for the EaP and the EU’s future engagement in the region.202 For the EAEU Member States, keeping bilateral relations intact has the benefit of maintaining close ties with the EU as a trade partner, in addition to asserting their own sovereignty towards Moscow.

201

Under the current circumstances, only the European Commission has a mandate to maintain contacts at technical level with the EAEU and only hesitantly analyses the possibility of more far-reaching interactions in the future (see Delcour and others (n 29) 14).

202

Adam Eberhard, ‘Dialogue with the Eurasian Union on Ukraine – an opportunity or a trap?’

[2014] 154 OSW Commentary 3.

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Examples of fruitful cooperation are the EU’s support to Belarus in joining the WTO and to Kazakhstan in fostering the rule of law.

Moreover, the EU has continued to forge deeper economic relations: Negotiations with Armenia on a new overarching framework for the deepening of their bilateral relations began in 2015, after a re-assessment of their mutual interests; an Enhanced Partnership and a Cooperation Agreement was signed with Kazakhstan in December 2015;203 and Kyrgyzstan was granted GSP+ status in February 2016.204 As the Ukraine crisis and the ensuing sanctions have shown, the EAEU Member States neither endorse Russia’s geopolitical plans nor do they wish hostilities with the EU. From a long term perspective, upholding bilateral cooperation in a variety of fields might prove to be the ideal strategic approach for the EU as long as it remains unclear what the future holds for the EAEU. In the event that the EAEU should fail to live up to its promises and cease to exist one day, the EU could still rely on continued bilateral relations. A cautious approach appears also justified from a legal perspective, as it is questionable what the EU’s interest in establishing direct trade relations with the EAEU could be where both its compatibility as a customs union with WTO law and its ability to establish a common trade policy remain problematic. In other terms, a number of important legal obstacles must still be overcome on the EAEU side before the establishment of a contractual relation between trade-blocs can be regarded as feasible. Recognition for political reasons would be merely symbolic. On the other hand, should the EAEU stand the test of time and be conferred more competences, with the consequence of becoming the EU’s sole partner in trade matters, there is still the chance that Member States might exert a positive influence on this new relation between integration systems through the EAEU’s decision-making bodies. This will depend on how Russia’s influence is calibrated within the integration system.

203

European External Action Service, ‘EU And Kazakhstan Sign Enhanced Partnership And Cooperation Agreement’ (2015).

204

See ‘Kyrgyz Republic And The EU - EEAS - European External Action Service - European Commission’ (EEAS - European External Action Service, 2016) <https://eeas.europa.eu/headquarters/headquarters-homepage/1397/kyrgyz-republic-and-eu_en> accessed 16 August 2017.

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Bilateral cooperation in technical matters might be an area worthwhile exploring in the meantime. As previously mentioned, the current clash between the EU and the EAEU appears to be rooted in the belief of an alleged normative incompatibility between the legal orders of these two integration systems. The possible realisation by political leaders that this understanding of exclusivity of membership in an integration process is based on a misconception might help defuse tensions. Consequently, a possible approach to follow would be to scrutinise means of achieving compatibility of rules and technical standards (the EU CEN-CENELAC with the Soviet GOST) with the aim of enabling Ukraine and other States taking part in the EaP to define their legal relations with the EAEU freely and without fear of retaliation from any side. Viable solutions could be found through effective customs cooperation, controls on rules of origins and arrangements on regulatory convergence and/or the principle of mutual recognition.

The current negotiations between the EU and Armenia for a cooperation agreement have the potential to serve as a test case for the EAEU Member States’ ability to pursue a multi-vector integration strategy. It is worth bearing in mind that Armenia had already successfully negotiated an association agreement establishing a DCFTA with the EU, being very close to concluding it. However, under pressure from Russia, which had made security guarantees conditional upon membership in the EAEU, Armenia decided to abandon its original plan and ultimately joined the latter integration system.205 Despite this abrupt change of mind, in March 2015, Armenia and EU resumed talks on a framework for a possible new bilateral agreement to replace the Partnership and Cooperation Agreement. The first stage of the talks consisted in a ‘scoping exercise’ aimed at identifying the policy areas, in which cooperation would still be possible despite Armenia’s membership in the EAEU. The text of the previously negotiated draft association agreement served as a basis of discussion. It can be expected that the chapters on political dialogue, common foreign and security policy as well as justice, freedom and security, including a significant number of sectoral chapters will remain for the most part 205

See Canan Atilgan and others (n 22) 41; International Crisis Group (n 58) 4.

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unaltered. The real challenge is likely to be the part concerning the DCFTA, more concretely, the chapters on customs, services, sanitary and phytosanitary measures and intellectual property rights, essential for granting access to the EU’s internal market.206 An agreement on these difficult areas would send a positive signal for the EU’s future negotiations with EAEU Member States.

Indeed, in the best possible scenario, some States would be enabled to obtain simultaneous membership in the EaP and the EAEU or any sort of association with the latter integration system. By so doing, relations between the EU and Russia could improve, ultimately paving the way for a possible recognition of the EAEU by the EU as a trustworthy partner in areas falling within its competence. In the long term, both integration systems might envisage the creation of a single economic space stretching from Lisbon to Vladivostok.207 The recently concluded ‘Comprehensive Economic and Trade Agreement’208 between the EU and Canada shows that inter-regional regulatory cooperation is feasible. A successful outcome of the current negotiations between the EU and Mercosur might also send out a positive signal.

For the time being, this vision is admittedly a very optimistic one, as contacts in technical matters have taken place only on few occasions, being limited to support provided by experts on a non-official basis.

6. Risks and chances of a bipolar Europe In recent years, Europe has seen the emergence of two integration systems, keen on expanding their respective areas of influence. The 206

Delcour and others (n 29) 19.

207

See in this context, the author’s work on regional convergence between the Andean Community and Mercosur, Werner Miguel Kühn, ‘Reflexiones sobre una posible convergencia regional con la participación de la Comunidad Andina y del Mercosur. Lecciones de la experiencia integracionista europea’ [2015] 36 Revista General de Derecho Europeo.

208

Hereinafter referred to as the ‘CETA’.

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instrument used is that of assimilation, achieved by legislative and regulatory approximation. The presumed normative incompatibility between both legal orders has led to a race, in which one side has not shied away from using military force. The risks derived therefrom have become palpable for an important number of people living in the eastern parts of the continent. The conflict in eastern Ukraine has the potential to flare up at any time, increasing the risk of a new Cold War. Moreover, eastern European States appear to be constraint in the conduct of their international relations, feeling compelled to join either one or the other integration system in the interest of their own survival. For the sake of lasting peace, dialogue between both integration systems must take place in order to identify areas of conflict and seek viable solutions.

The rise of the EAEU has questioned the approach taken so far by the EU’s EaP, consisting in inviting countries in the periphery to adopt the EU’s acquis with a view to enable them to access the EU’s internal market. This unilateral approach, based on the concept of a unipolar Europe, is composed of ‘concentric circles’, characterised by different levels of normative approximation to the EU’s legal order.

Examples of such levels include the EEA, EU-Switzerland bilateral agreements, EU-Turkey customs union, associations with third States in Europe offering a perspective of accession, the EaP and the Union for the Mediterranean)This approach must be reviewed, as it has become obvious that it cannot be expected from partner countries to align their domestic legislation solely to the EU’s requirements without taking into account other contractual relations these countries have entered into, including a membership in a different integration system. Instead, the EU should embark on a comprehensive dialogue with the EAEU with a view to render their legal orders mutually compatible. This would be the consequence of the realisation of the existence of a bipolar Europe in the 21st century.

While a unipolar Europe does not appear to be a realistic option anymore, a bipolar Europe would offer multiple chances for cooperation in the interest of peace and stability. Furthermore, as the most advanced integration system in the world, the EU could contribute to 405

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the development of the EAEU, also with the aim of helping it embrace Western values, such as democracy, the respect for human rights and the rule of law. If this approach proves successful, the EAEU might gradually assimilate to the EU’s model, thus increasing the mutual compatibility of their legal orders. A possible rapprochement in the spirit of the EU’s traditional strategy aimed at encouraging regional economic integration would facilitate the transmission of values and integration experience and, as a result, increase the EU’s importance for the States in the post-Soviet space.

A bipolar Europe – with the EU and an allied EAEU as building blocks – could also have as an effect to strengthen Europe’s role in the world. In an era, in which China appears to intend to play a more assertive role, cooperation between both integration systems in Eurasia based on common values and objectives might prove crucial.

This view is perfectly in line with the general goals pursued by the EU and the EAEU, as described above. In the end, both integration systems can only benefit from a rapprochement. Political sensitivities left aside, such a rapprochement would merely constitute a technical challenge. In any case, the European Commission does not appear to rule out this option once the political conditions are met.

Nonetheless, the EU would be well-advised to maintain multi-level relations, including the EAEU Member States with a view to facilitate the dialogue and to demonstrate its commitment to harmonious cooperation with the individual nations, thus avoiding a too strong Russian influence in the post-Soviet space. Furthermore, it should be borne in mind that the EAEU still shows several structural deficiencies at its current stage of evolution (e.g. coherence in foreign trade relations, compatibility of the customs union with WTO law), including its heavy dependence on the political agenda of predominantly autocratic governments in the EAEU Member States.209 As changes in the regimes – which will certainly take place anytime in the future – are likely to pose problems to the functioning of the EAEU, the EU should keep ties with the various levels of government and society in 209

Rilka Dragneva and Kataryna Wolczuk, ‘Eurasian economic integration: institutions, promises and fault-lines’ in David Cadier (ed.), The Geopolitics of Eurasian Economic Integration (LSE IDEAS Special Report 2014) 13.

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the Member States, in order to guarantee the continuity of bilateral cooperation.

7. Conclusion The present article was intended to offer an insight into the geopolitical background of the conflict in Ukraine, focusing on the clash between the EU and the emerging EAEU over spheres of influence.

The article has explained the EU’s ‘Eastern Partnership’ strategy as part of its wider ‘Neighbourhood Policy’, aimed at integrating States in the eastern and southern periphery into its internal market on the basis of a process foreseeing political dialogue, cooperation in various areas and normative approximation in the field of trade rules and technical standards.

An overview of the main characteristics of the legal order of the EAEU has also been offered, highlighting some differences to the EU, whose model it seemingly intends to emulate. The differences identified concern the values and principles of integration, the integration method, the institutional framework and decision-making procedure. The overview has focused on a number of deficiencies in the institutional setup, likely to undermine the attainment of the objectives pursued. The account has been broadened so as to encompass some issues of economic and political nature, which the EAEU must overcome. The author’s objective has been to shed light on the integration efforts in an area of the world, which has largely been ignored

by Western scholars.

While it is still too early to assess the success of this new integration system, there are a few indications that the EAEU might not yet deliver the envisaged economic prosperity. Instead, it appears that the Eurasian integration process might be a predominantly political project pursued by Russia, partly for ideological reasons, supported by the other Member States, eager to benefit from its clout in order to connect better to the global economy and balance out China’s growing influence. What can be said for sure is that the post-Soviet space has 407

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already for years been a fertile ground for diverse integration initiatives, comparable to a certain extent to Latin America. However, for the first time in history, a sufficiently stable and coherent integration process has emerged, based on the EU’s integration experience and demanding international recognition. This represents an important turning point in the history of Eurasia, in particular, since the order established by the EU is being challenged. Against this backdrop, the present article elaborates on the possible strategy to be pursued by the EU in terms of dialogue and the establishment of contractual relations with the EAEU and its Member States.

The author’s ultimate objective is, however, to stimulate interest in this fascinating new integration system among the readers and thus prepare them for possible developments in the future, in connection with the EAEU’s more visible presence in the international arena.

408

Gaming Law

The

future of Malta’s Gaming Legal Framework: Overhauling the system Silvana Zammit

Silvana Zammit is a gaming law specialist advising on regulatory aspects, taxation & general matters relating to the gaming industry. She is an active member of the Malta Remote Gaming Council & the Chamber of Advocates.

Silvana is a Partner with Chetcuti Cauchi, and also heads the Transport Practice Group within the same law firm, which services clients in the maritime, aviation and general transport industries. She also manages the Property & Development department, which focuses on property deals and probate procedures, assuring that on any property deal; be it commercial, residential or otherwise. Silvana is also strongly involved in the Aviation and Employment & Labour Departments.

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1. Introduction

T

he initiative to overhaul the existing gaming laws in Malta comes as a refreshing proposal to Gaming Law practitioners who felt that there was a dire need to revaluate a number of matters which the industry needed to address. Thus, the ‘White Paper to Future Proof Malta’s Gaming Legal Framework’,1 was welcomed as an overall step in the right direction.

The Bill features a considerable number of noteworthy matters which are of importance to the practitioner. This publication shall focus on how the Bill will reshape the scenario for the remote gaming industry and its effects in the light of prospective and existing online operators.

2. New Developments under the proposed Gaming Act affecting remote games The new Gaming Act will include a more clear and precise description or definition of which games fall within each Game Type when compared to the description provided in the existing classes of licence in the Remote Gaming Regulations 2004.2 Although the Game Types as described in the Bill are highly similar to the existing classes of licenses found in the RGR, the proposed description for each game type is more elaborate. Nonetheless, the wording of the Bill does not eliminate the possibility for the legislator to include further Game Types which may be considered to be somewhat unorthodox.

The requirement of a new license per class of games has been eliminated in the Bill. Such an amendment would significantly increase the attractiveness of the Malta gaming license by facilitating the process by which one’s games are licensed in Malta. On top of this flexibility, the Bill proposed to extend the validity period of licenses, thus giving licensees more long term-stability.

1

Hereinafter referred to as the ‘Bill’ or ‘Gaming Act’.

2

Hereinafter referred to as the ‘RGR’.

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The Bill also recognises the requirement of temporary permits to be issued for what the Bill coins as ‘low risk games’3, that is, games which are non-profit or games intended as part of a promotional effort for the sale of a particular product.4 Under the new Bill, promotional games referred to in the Bill as ‘commercial communication game’5 would also operate under a different regime which shows that the legislator recognises that the provision of such gaming services is generally of a secondary nature and in furtherance to a primary scope which is typically independent from the provision of gaming services per se.

The recognition of the principle payment of gaming tax of the point of consumption has also been extended in the Bill.

From a managerial perspective, the role of the key official has been segmented and the requirement of directorship has been removed in the Bill.

3. Text Structure With the drafting of the new Gaming Act, the Malta Gaming Authority6 is proposing a shift from a vertical to a horizontal approach which entails that while the same or similar matters as in the current legislation will still be addressed, they shall be tackled from a different viewpoint.

Indeed, the Bill appears to be theme-oriented (focusing on definitions, authorisations taxes and player protection), rather than sector or product-oriented (focusing on specific products such as land based 3

Gaming Authorisations Regulations Part VIII, Regulation 29.

4

ibid Fifth Schedule.

5

ibid Part I Section 2 defined ‘commercial communications’ as ‘text, images, sound or any other medium transmitting information, designed to promote, directly or indirectly, the goods, services, image or brand of a person pursuing a licensable gaming activity, and for the avoidance of doubt, this also includes product placement and any emerging advertising techniques, and “advertisement” and “promotion” shall have the same meaning.’

6

Hereinafter referred to as the ‘MGA’.

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gaming, online gaming, online controlled skills games etc). One can appreciate that the Bill’s new proposed structure is more coherent when compared to the existing body of laws, which could potentially bring about a technology convergence and the integration of the different channels of distribution of games. However, the immediate clarity as to which specific rules apply to particular sectors might be lost. This creates a disadvantage for various operators since there will be no set text such as the RGR today wherein, for example, remote gaming operators of games of chance can find the major rules which affect their business.

From a practitioner’s point of view, in order to maintain the level of clarity that is sought to be introduced through this major overhaul of gaming laws, it is advisable that should the current proposed Bill’s structure be upheld, the provisions within the text should clearly specify if they are not applicable to all sectors, or to specific sectors.

This would significantly mitigate the lack of specific texts which deal with specific sectors and eliminate any ambiguity.

4. Who can apply for a Licence?

As per Regulation 4, the RGR currently stipulate that to qualify for a license, an applicant must be a body corporate established in Malta in terms of the Companies Act.7 Through practice, Regulation 4 was extended to include bodies corporate established in the European Union and the European Economic Area. Regulation 10 of the Authorisations Regulations in the draft Bill reflects this practice at law as well, and provides that: ‘A person is not eligible to hold a licence unless such person is established in the European Economic area.’ (emphasis added) 8 Interestingly, the Authorisations Regulations deviate from the position taken under the RGR as to the legal personality of the person who may apply for a license. Whilst Regulation 4 of the RGR empha7

Remote Gaming Regulations S.L. 438.04, Regulation 4.

8

Gaming Authorisations Regulations (n 3) Regulation 10(1).

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sises that the person must be a body corporate established in terms of the Companies Act9, it is questionable whether under the new Authorisations Regulations, the applicant should necessarily be a body corporate, as inferred from the wording of Regulations 9 and 10 of the aforementioned regulations.10 Regulation 10 further stipulates that: ‘Where the applicant for a licence is a body corporate, such applicant may apply for a licence either for itself only or for its corporate group’.(emphasis added) 11 The aforementioned regulations suggest that under the new Gaming Act, any person whether legal or natural, can apply for an authorisation, however the drafting of these regulations leaves much to be desired in terms of certainty, particularly due to the fact that no definition of ‘person’ is provided within the Bill itself which would remove any doubt as to whether physical persons fall under this category of persons for the purposes of the Authorisations Regulations.

Regulation 10 (2) specifies a particular procedure for ‘where the applicant for a license is a body corporate’, thus implying that the applicant may not always be a body corporate.12 However, Regulation 10(1) provides for a qualification of ‘establishment’ in relation to all applicants, ‘establishment’ generally being a characteristic of bodies corporate and not natural persons where the terms used are generally ‘domiciled’ or ‘resident’.13 Thus, if both physical and legal persons may apply for a license under the new Gaming Act, it would be ideal that Regulation 10(1) be amended to reflect the establishment qualification to refer to situations where the applicant is a body corporate (as qualified in regulation 10(2)).

9

Remote Regulations (n 7).

10

Gaming Authorisations Regulations (n 3) Regulations 9 and 10.

11

Gaming Authorisations Regulations (n 3) Regulation 10(2).

12

ibid.

13

Gaming Authorisations Regulations (n 3) Regulations 10(1).

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5. License vs Game Approval Requirements Practitioners will, generally speaking, welcome the removal of the requirement of a license dependant on the game type. Should the Bill become law, we shall see a shift whereby the requirement of a license will be based on the type of service to be provided (gaming services and critical gaming supply license) rather than the kind of games offered.

Under the current system, a prospective gaming operator needs to apply for a licence based on the following four classes:14 • Class 1 – operators managing their own risk on repetitive games such as casino- type games and online lotteries with a fixed prize irrespective of the number of players participating in the lottery.

• Class 2 – operators managing their own risk on events based on a matchbook such as fixed odds betting, pool betting and spread betting.

• Class 3 – operators promoting and abetting gaming from Malta and taking a commission from promoting and/or abetting games such as Player to Player games, poker networks, betting exchange and game portals) • Class 4 – a licence to host and manage remote gaming operators, excluding the licensee himself that is operating as a platform.

Under the new proposed legislation, the above classes shall be abolished and prospective operators would only apply for two types of licenses: a Business-to-Consumer (B2C) licences which incorporates the current Classes 1, 2 and 3, and a Business-to-Business (B2B) licence which includes the current Class 4 licence.15 The two different approaches have different advantages. The new 14

Remote Gaming Regulations (n 7) First Schedule.

15

Gaming Authorisations Regulations (n 3) First Schedule.

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type of service approach is clear; however the kind of games offered by the licensee will not be rendered irrelevant.

Under the new proposed framework, it seems that a license shall be issued in relation to a particular Game Type or Types. Thus, licensees would need to apply to approve additional Game Types under the gaming service or critical gaming license. This framework is plausible; however no technical details have been provided as to how a licensee can add a Game Type under existing licenses. Thus, one cannot accurately assess the viability of a new system which will depend on the details of the way and method of adding a Game Type under existing licences being straightforward and eliminating replication of information.

6. Extent and Division of Responsibility Amongst Authorised Persons The requirement of other authorisations is another interesting introduction as seen in Part IV of the Authorisations Regulations. This change will allow the MGA to have control on providers of specific services to licensees, particularly with respect to material supply (Regulation 20 of the Authorisations Regulations)16 and the key functions certificates (Regulations 23 and 24 of the Authorisations Regulations).17 The extent and division of responsibilities amongst authorised persons, for example, between a gaming supply licensee (B2C) and a supplier of a material supply being certified by the MGA providing services to the gaming supply licensee is yet to be seen.

The proviso to Regulation 20(2) of the Authorisations Regulations provides that any authorised person receiving material gaming supplies from an uncertified supplier, shall assume full regula16

Gaming Authorisations Regulations (n 3) Regulation 20.

17

Gaming Authorisations Regulations (n 3) Regulation 23 and 24.

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tory responsibility for such supplies.18 A contrario sensu, this entails that if the provider of material gaming supplies is certified, then the authorised person receiving the supplies will not be responsible for those supplies it is receiving. This development represents a complete departure from the current situation, whereby licensees are wholly responsible for their operations irrespective of their providers (with the exception of licensees using an MGA licensed software platform with Class 4 license). Although the division of responsibility will be welcomed by practitioners as a step in the right direction, it might create issues of extent of control by the Authority, considering that a number of providers may not be set up in Malta, and assuming that the provisions of control and oversight shall be less rigid for certificate holders than licence holders.

While regularisation of material gaming supplies and key function providers is welcomed, it is crucial that it does not affect the availability of such providers for the provision of supplies to Maltese licensees.

The new approach undertaken in the Authorisations Regulations will allow the MGA to be able to accept uncertified providers on a caseby-case basis.

7. Point of Supply vs Point of Consumption, Taxes & License Fees The ever-increasing push towards the point of consumption tax principles was also recognised in the new Bill, which runs in parallel to what is happening internationally, particularly in the European context. With the implementation of a new bill, a point of consumption gaming tax will be implemented which provides for the payment of gaming tax of 5%19 of the Gaming Revenue (as defined in Regulation 2 of the Tax Regulations)20. Thus, this proposal provides for Gam18

Gaming Authorisations Regulations (n 3) Regulation 20(2).

19

Gaming Tax Regulations, Regulation 3.

20

ibid Regulation 2(2) defines ‘Gaming Revenue’ as ‘the aggregate stakes and wagers, inclusive of any bonus or other player incentives which are comprised within any stake or wager, less an amount to be determined by summing up the aggregate player winnings to the aggregate

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ing tax to be levied on gaming services provided to any player who is physically present in Malta.

From a practitioner’s point of view, one can notice that the current point of supply gaming tax has been shifted and integrated in the proposed license fees. There is no doubt that this will have an adverse impact on some operators which will have to carry out new calculations and adjust their budgets accordingly, particularly in cases of shifts from: • a fixed point of supply tax (e.g. class 1 operators) and a relatively low gaming licence fee of €8,50021, to – • a fixed licence fee of €25,00022 , a variable li23 cence fee and a gaming tax of 5% levied on Gaming Revenue generated from players in Malta.

This problem has been partially addressed by the introduction of exemptions for Start-Up undertakings (as described in Regulation 9 of the License Fees Regulations); however an additional measure could be taken to ensure that the proposed draft for Malta’s new license regime remains attractive.

The introduction of a cap on the Variable License fee, as defined in Regulation 2 of the License Fees Regulations, payable as provided for in Regulation 3 of the aforementioned regulations was a step in the right direction. However, it is important to note that no capping has been set for Game Type 1 (games played against the house, the outcome of which is determined by a random number generator)24.

The basis of this distinction is not entirely clear, particularly when taking into consideration that under the current regime, a capping of any bonus or other player incentives which are comprised within the amount of aggregate stakes and wagers, during a Tax Period and, where applicable, the term ‘aggregate stakes and wagers’ as used herein shall also include: i) tournament fees and other such like elements of revenue; and ii) Charge’.

21

Remote Gaming Regulations (n 7) Second Schedule.

22

Gaming Licence Fees Regulations, First Schedule Part E.

23

Gaming Licence Fees Regulations, First Schedule Parts A – D.

24

Gaming Tax Regulations, First Schedule.

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of €466,000 was imposed on point of supply gaming tax payable for each class of license. This gaming tax is now being transposed in licenses fees without a capping for Game 1 Type Licensees. Therefore, it would be ideal if capping is also introduced for Game Type 1.

The Bill also introduces a minimum Variable License fee which from a practitioner’s perspective may be seen as counter-productive to Malta’s reputation as an attractive jurisdiction to attain a gaming license. Thus, it is being suggested that the minimum payable Variable License Fee is removed since a Fixed Annual License Fee, (as defined in Regulation 2 of the License Fees Regulations)25 is suggested to be set and payable.

8. Mutual Recognition Principle The new Gaming Act will still maintain the principle of mutual recognition in Regulation 14(2) of the Authorisations Regulations.26 In the light of the freedoms enshrined within the European Treaties, an equitable policy seems to be implemented at the same time since it is provided that a recognition shall not remain automatic as is currently the case, but will be subject to the scrutiny of the Authority and given on a case-by case basis.

Regularising the mutual recognition principle is seen as a very positive development and a step in the right direction by practitioners; however, it would be ideal if articles concerning such recognition are further elaborated on so as to avoid ambiguity. It is imperative that the criteria for recognition are listed, together with the potentiality of reconciling and missing criteria in order to be eligible for recognition.

25

Gaming Licence Fees Regulations, First Schedule Part E.

26

Gaming Authorisations Regulations (n 3) Regulation 14.

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9. What is missing?

The drafters of the Bill are to be commended for addressing a number of salient issues, however it should also be noted that the proposed Bill lacks the technical specifications and details found in the RGR. It would have been ideal if such specifications and details were unveiled together with the proposed Bill.

It remains to be seen to what extent such technical specifications and details shall be prescribed, or if a less prescriptive and minimalistic framework method shall be applied. Nonetheless, this exercise must be undertaken with care to ensure the flexibility of the regime on the one hand, and certainty coupled with legitimate expectation on the other.

In any case, it would be ideal and strongly recommended that the MGA issues implementing procedures that assist key players within the industry and practitioners advising them when implementing the new law (such implementing procedures could be similar to those issued by the FIAU with respect to anti-money laundering laws).Since the Authority will be entrusted with considerable additional powers which are required to elevate the standard and strengthen the reputation of the Maltese gaming legal framework, issuing such implementing procedures is of paramount importance. In order to ensure a stronger and a more certain legal framework, clear guidelines should be provided. Moreover, such guidelines will ensure that the authorised person is safeguarded from the arbitrary exercise of the Authority’s wide prerogatives and rights, without having to sacrifice the desired flexibility.

10. Conclusion - Transitional Provisions Unfortunately, no transitory provisions were included in the proposed Bill, leaving room for grey areas and uncertainty for currently licensed operators. When taking into consideration that there is already a considerable number of already licensed operators, it would 420

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have been ideal to include such transitory provisions to ensure their peace of mind and avoid a situation of ambiguity. While the new Bill should attract more operators seeking a Maltese gaming license who are able to compete heavily in the market, robust transitory provisions should be enacted to ensure that the needs and well-being of existing operators who have already chosen Malta is being catered for. These transitory provisions should include that: • all current licensees are automatically approved as gaming service or critical gaming supply licensees; • a reasonable period is set for regularisation of those operators providing services that, whilst outside of the remit of law to date, shall fall within the remit of licensing or certification on the enactment of the Bill; and • a specific and clear cut-off-date is provided in relation to the shift from payment of the existing licence fees and taxes to the new proposed fees and taxes.

421

International Law

Some general reflections on characteristic features of International Humanitarian Law Marcin Marcinko

Marcin Marcinko is the Chair of Public International Law of Jagiellonian University in Kraków. He is also the coordinator of the International Humanitarian Law and Human Rights Centre within the same University, and the Chairman of the Polish Commission on Dissemination of International Humanitarian Law at the Polish Red Cross. He is a member of the Polish Group of the International Law Association, and the International Association of the Professionals in Humanitarian Assistance and Protection.

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1. Introduction

T

he year 2017 marks an important milestone for international humanitarian law1 – the branch of public international law which deals with war and, regulates the conduct of hostilities (including means and methods of warfare) and the protection of war victims, (both civilians and hors de combat2) during international and non-international armed conflicts3. The 2017 year marks the 40th anniversary of the adoption of two Additional Protocols to the Geneva Conventions of 1949. It is also the 110th anniversary of the adoption of the Hague Conventions. The Additional Protocols and the Hague Conventions (together with the Geneva Conventions) form the foundations of humanitarian law and, though they are not the only international treaties applied during armed conflicts, they include the biggest number of IHL norms. Indeed, they were ratified by a substantial number of States and, some of their regulations via state practice and opinio juris, have gained the status of customary law.

There is no doubt that international humanitarian law, which is deeply rooted in the system of public international law and, which in turn is one of the oldest branches of this law, is simultaneously a highly specialized field of international law containing many legal provisions formulated in detail in a specific language using many strictly defined terms (like ‘combatant’, ‘prisoner of war’, ‘belligerent occupation’ or ‘hostilities’). Therefore, as Professor Daniel Thürer rightly noticed: [I]nternational humanitarian law constitutes (…) a specific model of law, the significance of which goes beyond the realm of humanitarian law with its many rules4.

1

Hereinafter referred to as ‘IHL’.

2

This term means ‘a combatant who: a) is in the power of an adverse party; b) clearly expresses an intention to surrender; or c) has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and is therefore incapable of defending himself. Provided that in any of these cases he abstains from any hostile act and does not attempt to escape, he may not be made the object of attack’- See Pietro Verri, Dictionary of the International Law of Armed Conflict (International Committee of the Red Cross 1992) 57.

3

International humanitarian law is also known as the law of war, the law of armed conflict (LOAC), or jus in bello, therefore, in this article, these terms might be used interchangeably.

4

Daniel Thürer, International Humanitarian Law: Theory, Practice, Context (Recueil das cours de l’Academie de droit international de La Hoye 2008) 51.

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Thus, IHL has features characteristic of international law, while retaining its own specificity. According to Professor Thürer, ‘there are (…) six key aspects of international humanitarian law’5. First, the human person is assigned the highest value; second, the rules of IHL aspire to universality; third, IHL developed into a system of objective rules; fourth, the same jus in bello rules apply equally to all parties in a conflict; fifth, the rules of IHL are binding erga omnes; sixth, the basic norms of IHL are generally recognized as having a peremptory status in the hierarchy of norms in international law6.Inspired by the abovementioned remarks, presented by Professor Thürer during his course at the Hague Academy of International Law in the summer of 2008, the author of this article decided to develop the aforementioned theses, particularly focusing on their certain aspects which – in the opinion of the author – require a deeper analysis (and due to the general character of Hague lectures, they were merely touched upon in the essay published by the Professor). Therefore, this article may have some didactic value, especially in the light of the fact that in most coursebooks on international law, the subject of humanitarian law is not discussed in detail and is not usually thoroughly discussed during academic lectures. The article might also be regarded as a specific form of celebration of both of the abovementioned anniversaries, and as a means to honour Professor Thürer and his outstanding activity in disseminating humanitarian law.

2. Humanitarianism of humanitarian law The term ‘humanitarian’, used in reference to the branch of international law regulating the use of violence in armed conflicts may seem to be surprising. Nevertheless, despite a cursory inspection of the Geneva Conventions or their additional Protocols, one might conclude that the human being is considered to have the utmost value in humanitarian law. Due to the exposure to suffering, which results from an armed conflict, individuals deserve respect and protection.

5

ibid.

6

ibid. 51-53.

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To a large extent, IHL branch also gives individuals certain rights; the aim of law is to serve the individual and, in this case, to serve the victim of armed conflicts. Humanitarian law is based on common values and it addresses our common humanity. Therefore, IHL includes regulations aiming at easing the suffering of human beings via, if necessary, the limitation of actions or the permission to act directed at States considered the subjects of IHL7.

The history of armed conflicts, which dates back to thousands of years, reveals that even during conflict some values are common, generally acknowledged and respected by all parties involved. Most of all, these include specific humanitarian values well-founded within the consciousness of societies such as; the prohibition of killing children, women and the elderly, the honouring of the rules of warfare, or the prohibition of killing an unarmed opponent8. The expression of this idea of humanism in armed conflicts is the principle of humanity, which is one of the basic rules of IHL. The principle of humanity puts human life and health first and, as such, it emphasises the prevention of human suffering and the provision of aid to all who need it. It prohibits harming or injuring others, and causing destruction - even if such action is not necessary to achieve justified military goals. Indeed, the end does not justify the means. In every case the parties have to at least respect ‘the dictates of public conscience’9 – so if they do not know how to behave, they should behave in a humanitarian manner.

The term ‘humanitarianism’ leads to the development of numerous specific norms - especially the prohibition of causing unnecessary suffering, as well as the humanitarian treatment of individual civilians, the civilian population, or persons hors de combat. Moreover, it confirms the fundamental inviolability of civilians and their property, which cannot be the target of attacks during armed conflicts. More7

ibid. 51.

8

Compare Theodor Meron, The Humanization of International Law (Martinus Nijhoff Publishers 2006) 1.

9

Article 1(2) of Additional Protocol I of 1977 (n 16): ‘In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience’ (emphasis added).

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over, the property cannot be unjustly confiscated by the enemy or be the subject of reprisals.

Among the specific regulations of the treaty law, which embodies the principle of humanity, Article 3 common to the four Geneva Conventions deserves particular attention. The common Article 3 introduces the minimum standards for the treatment of persons who do not participate in a non-international (internal) armed conflict – it demands that ‘at least’ the guarantees the Article provides are followed. However, in time, the extent of protection provided by Article 3, named a ‘convention in miniature’, started to be considered as fundamental for the preservation of the principle of humanity during all kinds of armed conflicts, and this was confirmed by the international jurisprudence. In the Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) the International Court of Justice (ICJ) underlined that; Article 3 which is common to all four Geneva Conventions of 12 August 1949 defines certain rules to be applied in the armed conflicts of a non-international character.

There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts10.

The Court also recognized the norms contained in common Article 3 as ‘elementary considerations of humanity’11. Similar observations have been made by the Court in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons. Such a judgement recognised the fundamental rules of Hague and Geneva Conventions as ‘intransgressible principles of international customary law’, which should be observed by all States whether or not they have ratified the conventions that contain these rules12.

10

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgement, ICJ Reports 1986, para 218.

11

ibid.

12

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, para 79.

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Thus, the common Article 3 for the Geneva Convention became the foundation that cannot be violated in its entirety. Such a provision refers to the treatment of all persons who are under the jurisdiction of the enemy, regardless of their legal or political status and who their captor is. It has to be highlighted that in state practice after 1949, Article 3 has been highlighted, confirmed and, in turn, applied numerous times. Even if its provisions were not followed in reality, no State has admitted its violation13. This should not be surprising – Article 3 generally describes the humanitarian rules accepted by States in a different context. For example, in international treaties concerning human rights, treating the life and health of the individual, are considered as two of the most important and protected values.

3. Universality of Humanitarian Law The rules of IHL are virtually of a universal character – they might be applied not only by States or international organisations, which are linked via common values but, also by people independent of cultural or geographical borders - or even by both sides of the front. The rules and norms of IHL define the minimum standards which have to be respected in relation to warfare. This universal aspect combines with the near common acknowledgment of the rules and norms of the humanitarian law. A significant majority of States accepted the key instruments of this law14 – the Geneva Conventions of 1949 are a confirmation of this and, due to the number of ratifications, they are currently one of the most universal instruments of international law (as many as 196 States are now the parties to these Conventions). According to the International Committee of the Red Cross (ICRC), this is the confirmation of the universal character of the norms included in these conventions, which reflect the customary IHL15.

13

Antonio Cassese, International Law (1st edn, Oxford University Press 2001) 346.

14

Thürer (n 4) 51-52.

15

Vide ‘International humanitarian law and the challenges of contemporary armed conflicts’, Report prepared by the International Committee of the Red Cross to the 28th International Conference of the Red Cross and Red Crescent (03/IC/09), Geneva, September 2003, 8.

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The two Additional Protocols to the Geneva Conventions, adopted in 1977, of which the first one concerns international armed conflicts16 and the second one non-international armed conflicts17, complement and extend the range of protection of the victims of war and, to some extent, they introduce changes in the rules of IHL regarding the conduct of hostilities (this refers especially to Additional Protocol I). Similarly to the Geneva Conventions, both Additional Protocols received a significant, though slightly lower, number of ratifications – 174 in the case of Additional Protocol I, and 168 in the case of Additional Protocol II. Despite the lower number of ratifications (in comparison to the Geneva Conventions), many norms included in the Additional Protocols are considered as being a reflection of the international customary law, which particularly refers to the aforementioned regulations regarding the conduct of hostilities18.

4. Objectivity of Humanitarian law Across ages, IHL developed a system of objective rules, which currently serve specific goals as defined by these rules. The representation of this feature of the humanitarian law is Article 1 common to the four Geneva Conventions of 1949, which obliges State Parties to follow the regulations of the Conventions ‘in all circumstances’. According to the authors of the updated commentary on the first Geneva Convention of 1949:‘The interests protected by the [Geneva] Conventions are of such fundamental importance to the human person that every High Contracting Party has a legal interest in their observance, wherever a conflict may take place and whoever its victims may be’19.This means 16

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3 <http:// www.refworld.org/docid/3ae6b36b4.html> accessed 22 September 2017.

17

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609 <http://www.refworld.org/docid/3ae6b37f40.html> accessed 22 September 2017.

18

ICRC Report 2003 (n 15) 8.

19

Knut Dörmann, Liesbeth Lijnzaad, Marco Sassòli, Philip Spoerri (Editorial Committee), Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (International Committee of the Red

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that in accordance with the provisions of the Conventions, States are prohibited to follow the principle of reciprocity and commit reprisals, which had been the methods of punishment for breaches of law for a long time20. The prohibition of reprisals in armed conflicts is openly stated in the provisions of IHL treaties21. Generally, the ban does not raise questions among the representatives of the doctrine22. However, Cross 2016) para. 2.

20

Thürer (n 4) 52. Vide Jean de Preux, ‘The Geneva Conventions and Reciprocity’ [1985] 25(244) International Review of the Red Cross 25, 25-29; Theodor Meron, ‘The Humanization of Humanitarian Law’ [2000] 94 American Journal of International Law 239, 247-251.

21

Vide, e.g., Article 14 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 12 August 1949, 75 UNTS 31 <http://www.refworld.org/docid/3ae6b3694.html> accessed 22 September 2017; Article 16 of the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), 12 August 1949, 75 UNTS 85 <http://www.refworld.org/docid/3ae6b37927.html> accessed 22 September 2017; Article 13 of the Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 12 August 1949, 75 UNTS 135 <http://www.refworld.org/docid/3ae6b36c8. html> accessed 22 September 2017; Article 33 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287 <http://www.refworld.org/docid/3ae6b36d2.html> accessed 22 September 2017; Articles 51(6), 52(1), 53(c), and 54(4) of Additional Protocol I of 1977 (n 16). In its judgement in Prosecutor v Zoran Kupreškić case the International Criminal Tribunal for the former Yugoslavia stated that attacks on civilians based on reprisals cannot be justified and that the prohibition of reprisals against civilian population has a status of customary rule (Prosecutor v Zoran Kupreškić et al., ICTY Trial Chamber Judgement, Case No. IT-95-16-T, 14 January 2000, para. 513, 521-536). This statement has been further reaffirmed in ICTY’s judgement in Prosecutor v Milan Martić case (vide Prosecutor v. Milan Martić, ICTY Trial Chamber Judgement, Case No. IT-95-11-T, 12 June 2007, para 465-467). However, in practice, there is no full agreement to treat the ban on reprisals as the customary norm of IHL – for example, according to the United States, “[T]here is no customary international law prohibition on reprisals per se and recent State practice indicates that States have yet to give up the possibility of exercising a right of reprisal in response to serious violations of the Law of Armed Conflict to prevent further violations” (USAF JAG Department, ‘Air Force Operations and the Law – A Guide for Air, Space and Cyber Forces’ 2009, 44).”

Compare remarks concerning the customary prohibition of reprisals in non-international armed conflicts in Knut Dörmann, Louise Doswald-Beck, Robert Kolb, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary (Cambridge University Press 2003) 446.

22

Vide, e.g., Frits Kalshoven, ‘Human Rights, the Law of Armed Conflicts, and Reprisals’ [1971] 11(121) International Review of the Red Cross 183, 183-192; Christopher Greenwood, ‘The Twilight of the Law of Belligerent Reprisals’ [1989] 20 Netherlands Yearbook of International Law 35, 35-69; Frits Kalshoven, ‘Belligerent Reprisals Revisited’ [1990] 21 Netherlands Yearbook of International Law 43, 43-80; Andrew D. Mitchell, ‘Does One Illegality Merit Another? The Law of Belligerent Reprisals in International Law’ [2001] 170 Military Law Review 155, 155-177; Shane Darcy, ‘The Evolution of the Law of Belligerent Reprisals’ [2003] 175 Military Law Review 184,

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the lack of application of reciprocity in the light of IHL requires some explanation. In the scope of the international law, this rule states that if a State Party to the international agreement violates the rule significantly, the other Party or Parties of the agreement are entitled to point out this violation as the basis for the termination of the agreement or its partial or total suspension. In other words, if State Party ‘X’ does not follow the obligation of the treaty in relation to State Party ‘Y’, the latter partyis not obliged to follow the same regulations in relation to State Party ‘X’. This principle (known also as the principle inadimplenti non est adimplendum23) has been clearly expressed in Article 60 of the Vienna Convention on the law of treaties of 196924.

At the same time, this provision includes an important exception. According to Article 60(5), the principle of reciprocity does not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, and particularly to provisions prohibiting any form of reprisals against persons protected by such treaties25.

In accordance with jus in bello, every Party to the armed conflict has to conform to the same rules. This is so because the aim of IHL is not to point out which of the warring parties is ‘entitled’ to carry out military operation against the other party (this is the characteristic feature of jus ad bellum), but to ensure equal protection of persons and objects influenced by the armed conflict, regardless of which party had the right to initiate hostilities26. Therefore, if one of the parties does not follow the rules and norms of IHL, the other party is not relieved of the obligation to follow this law. This is also true of a situation in which paramilitary groups or other types of (non-state) organised armed forces violate IHL when their adversaries consist of regular State armed forces. Moreover, it cannot be assumed that if one 184-251; Veronika Bílková, ‘Belligerent Reprisals in Non-international Armed Conflict’ [2014] 63(1) International and Comparative Law Quarterly 31, 31-65.

23

‘One has no need to respect his obligation if the counter-party has not respected his own’.

24

Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331 <http://www.refworld.org/docid/3ae6b3a10.html> accessed 22 September 2017.

25

Compare Prosecutor v Kupreškić (n 21) para 520.

26

Jelena Pejic, ‘Extraterritorial targeting by means of armed drones: Some legal implications’ [2014] 96(893) International Review of the Red Cross 67, 85.

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warring party commits crimes, the other party’s similar crimes can be justified and accepted. This position was emphasised by the International Criminal Tribunal for the former Yugoslavia27 in the Prosecutor v Zoran Kupreškić case28, referring to the argument of defence, in the light of which the actions of Croatian troops in reference to the Muslim population were justified by the previous atrocities committed by the Muslims on Croatian civilians – according to the Tribunal: In international law there is no justification for attacks on civilians carried out either by virtue of the tu quoque principle (i.e. the argument whereby the fact that the adversary is committing similar crimes offers a valid defence to a belligerent’s crimes) or on the strength of the principle of reprisals29.In the light of IHL, all parties fighting in an armed conflict are prohibited from directly attacking the civilian population and civilian property, but they are allowed to attack military targets belonging to the opponent. According to IHL, the equality rule, understood as the equality of the parties of an armed conflict, is not only legally important, but serves as the actual means to strengthen the respect of the norms of this law by all parties of the conflict30.

5. Equality in observance and application of humanitarian law As Daniel Thürer explains, The same jus in bello rules apply equally to all parties in a conflict: the choice of means available to the party that is attacked is as limited as that available to the ag27

Hereinafter referred to as the ‘ICTY’.

28

Prosecutor v Kupreškić (n 21).

29

Prosecutor v Kupreškić (n 21) para765. Compare de Preux (n 20) 28-29.

30

Pejic (n 26) 85.

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gressor. The law of war imposes equal responsibilities on lawful and unlawful belligerents31.

This understanding of equality of warring parties is associated with the division into two areas traditionally connected to war and commonly accepted in contemporary international law - jus ad bellum and jus in bello. The aim of both of these domains is to limit the use of violence and the suffering, as well as the destruction which follows. Jus ad bellum – ‘the right to resort to war’ – refers to the decision on the use of force and such notions as relying on the right to self-defense. Historically, the aim of this law was to limit the use of military force. Currently, due to the absolute prohibition of the use of force and of the threat to use force which is expressed in the Charter of the United Nations32 and, commonly considered as a rule of the customary international law33, war has been banned. Therefore, instead of ‘the right to resort to war’ some authors propose the term ‘the law against war’ (jus contra bellum)34. On the other hand, jus in bello – ‘the law of armed conflict’ (currently the law of armed conflict/ international humanitarian law) – is applied when jus ad bellum did not succeed in achieving its goal. This means that an armed conflict was initiated. This law regulates the conduct of armed conflicts with the aim to render them as humanitarian as possible35.

31

Thürer (n 4) 52.

32

Article 2(4) of the Charter of the United Nations, 24 October 1945, 1 UNTS XVI <http://www. refworld.org/docid/3ae6b3930.html> accessed 22 September 2017. The UN Charter clearly formulates only two exceptions to the prohibition of the use of force – the right to self-defence of States in the case of an armed attack (Article 51 of the Charter) and the forced action of the Security Council in order to maintain or restore international peace and security on the basis of Chapter VII of the Charter (vide Article 42 of the Charter).

33

Thomas M. Franck, Recourse to Force: State Action Against Threats and Armed Attacks (Cambridge University Press 2002) 20-21; Judith G. Gardam, Necessity, Proportionality and the Use of Force by States (Cambridge University Press 2004) 141-142; Christine Gray, International Law and the Use of Force (2nd edn, Oxford University Press 2004) 5-6.

34

Robert Kolb, Ius contra bellum – Précis de droit international relatif au maintien de la paix (2nd edn, Helbing & Lichtenhahn 2009) passim; Serena K. Sharma, ‘The Legacy of Jus Contra Bellum: Echoes of Pacifism in Contemporary Just War Thought’ [2009] 8(3) Journal of Military Ethics 217, 217-230; Olivier Corten, ‘The Law Against War: The Prohibition on the Use of Force in Contemporary International Law (Oxford University Press 2012) passim’.

35

Thürer (n 4) 46.

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In practice, this rule means that the legal status of the warring parties, in accordance with jus ad bellum, has no influence on the application of IHL by these parties. In turn, acknowledging and following IHL does not justify any illegal use of force in the understanding of jus ad bellum. Despite the fact that the statement that an armed attack was carried out – which, in turn, is illegal in the light of jus ad bellum – may be, in some circumstances, connected with the acknowledgment of a proceeding armed conflict, both issues may not necessarily be dependent on each other. The evaluation of violent action in the perspective of IHL is undertaken after the prior establishment of the factual existence of an armed conflict. Of course, this is not on the basis of determining whether or not an armed attack was carried out.

In order to evaluate the legality of the use of armed force (in the general sense), two questions have to be answered: the first question refers to whether the appropriate laws referring to the use of force were invoked (e.g. the right to self-defence) and that the valid jus ad bellum rules were followed (e.g. the principle of proportionality).

Meanwhile, the second question refers to whether or not an armed conflict is actually taking place. If the answer is yes, it nonetheless has to correspond as to whether the rules of IHL were followed in relation to the use of force (e.g. the limitations in terms of the means and methods of warfare and the prohibition of attacking civilian population and civilian property)36. In other words, jus ad bellum and jus in bello do not influence each other when it comes to the range of their application. The legality of actions carried out in the scope of jus ad bellum is evaluated separately and independently of the evaluation of the legality of actions carried out in the scope of jus in bello.

36

Noam Lubell, ‘Extraterritorial Use of Force Against Non-State Actors’ (Oxford University Press 2010) 91-92. More about the relationship between IHL and the right to use force – vide, e.g., Christopher Greenwood, ‘The Relationship of Jus ad Bellum and Jus in Bello’ [1983] 9 Review of International Studies 221, 221-234; François Bugnion, ‘Just Wars, Wars of Aggression and International Humanitarian Law’ [2002] 84(847) International Review of the Red Cross 523, 523546; Jasmine Moussa, ‘Can jus ad bellum override jus in bello? Reaffirming the separation of the two bodies of law’ [2008] 90(872) International Review of the Red Cross 963, 963-990; Keiichiro Okimoto, ‘The Cumulative Requirements of Jus ad Bellum and Jus in Bello in the Context of Self-Defense’ [2012] 11 Chinese Journal of International Law 45, 45-75.

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The aforementioned position is reflected in State practice37 and international jurisprudence. It was presented by, among others, the American Military Tribunal in the Wilhelm List and Others case.38During this case, the rejection of the indictment argument, of which the laws and customs of war regarding occupation were not applied in the case of the German occupation of Yugoslavia and Greece as the occupation itself was illegal, was put forward. According to the Tribunal;International Law makes no distinction between a lawful and an unlawful occupant in dealing with the respective duties of occupant and population in occupied territory. There is no reciprocal connection between the manner of the military occupation of territory and the rights and duties of the occupant and population to each other after the relationship has in fact been established. Whether the invasion was lawful or criminal is not an important factor in the consideration of this subject39.

A similar position was taken by Judge Kooijmans in his separate opinion of 2005 in Democratic Republic of the Congo v Uganda40 – according to Judge Kooijmans, In their interrelationship the rules on occupation form an important part of the jus in bello or international humanitarian law. The main purpose of that law is to protect persons caught up in conflict, even if it does take into account the interests of the belligerent parties.

It does not differentiate between belligerents. In particular, no distinction is made in the jus in bello between an occupation resulting from a lawful use of force and one which is the result of aggression. The latter issue is decided by application of the jus ad bellum, the law on the use of force, which attributes responsibility for the 37

Okimoto (n 35) . 51-53.

38

This is also known as ‘The Hostage Trial’ case.

39

‘Trial of Wilhelm List and Others (The Hostages Trial)’, United States Military Tribunal, Nuremberg, 8 July 1947 – 19 February 1948 in: VIII Law Reports of Trials of War Criminals 1949, Case No. 47, p 59.

40

Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgement, ICJ Reports 2005, p 168 et seq.

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commission of the acts of which the occupation is the result.41.

The separation of IHL and the law governing the use of force has been expressly stated in the preamble to the Additional Protocol I of 1977 in which the States Parties have affirmed that the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict.

Therefore, IHL does not differentiate between the armed forces (or the civilian population) of the aggressor and the armed forces (or the civilian population) of the State which is using its right to self-defence or, which participates in the collective military operation authorised or supervised by the UN Security Council42.

The separation of jus ad bellum from jus in bello allows for the uniform and objective application of the humanitarian law43. In practice, this means that for the application of IHL, it is unimportant how the armed conflict began, what its goals are, or if it is ‘a just war’, or ‘an aggressive war’. According to the doctrine of ‘just war’, the laws and obligations of the warring parties depend on whether their case is ‘just’ or ‘unjust’. Currently, however, IHL regulates the conduct of hostilities regardless of whether or not a specific conflict is considered as ‘just’ or ‘fair’. Moreover, it is often difficult to determine which belligerent party ‘justly’ used force, and which reached for military measures in opposition to law. Therefore, the principles and norms of IHL are applied in the same manner in reference to every party to the conflict, regardless of the legal or political status of the parties, and 41

DRC v Uganda – Separate Opinion of Judge Kooijmans, ICJ Reports 2005, para.58.

42

Yoram Dinstein, ‘The Conduct of Hostilities under the Law of International Armed Conflict’ (Cambridge University Press 2004) 4. Compare Okimoto (n 33) 48-49; Dörmann et al., ‘Commentary’ (n 19) para 24.

43

Meron, ‘The Humanization of Humanitarian Law’ (n 20) 241.

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the reasons or aims behind their military activity. Consequently, every belligerent has the same range of rights and obligations resulting from IHL44. For practical, humanitarian and political reasons, both those who had the right to use force and those who used it illegally should respect the principles and norms of IHL to the same extent.

Otherwise, it will not be possible to effectively apply humanitarian law. Indeed, it is usually the warring parties who accuse each other of initiating illegal military action while, simultaneously, consider themselves as victims of an armed attack with the right to self-defense45. For humanitarian reasons, the victims of an armed conflict, on both sides of the battlefront, require the same protection. It is also incorrect to hold them responsible for their State’s violation of jus ad bellum46. Furthermore, the violations of IHL cannot be justified by a statement that the enemy is responsible for illegal initiation of the armed conflict47. Therefore, IHL should be respected regardless of the arguments acknowledged for the purpose of jus ad bellum48.

The relation presented above cannot automatically be applied to cases which are not international armed conflicts. In the case of a non-international conflict taking place in the territory of a specific State, jus ad bellum loses its meaning. There are many international rules which might limit and regulate the use of force in the scope of a single State – e.g. human rights, or the humanitarian law applied in 44

Thürer (n 4) 47-48. Compare ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries’, Report of the International Law Commission on the work of its fifty-third session [2001] II(2) Yearbook of the International Law Commission 74, para. 3: ‘The Geneva Conventions for the protection of war victims of 12 August 1949 and the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I) apply equally to all the parties in an international armed conflict, and the same is true of customary international humanitarian law.’

45

Compare Lubell (n 3)5 8; Dörmann et al., ‘Commentary’ (n 19) para. 25.

46

Antoine A. Bouvier, ‘International Humanitarian Law and the Law of Armed Conflict’ (2nd edn, Peace Operations Training Institute 2012) 21. Compare Thürer (n 4) 48; Lubell (n 35) 7-8.

47

Dinstein (n 41) 5.

48

Compare Theodor Meron, ‘International Law in the Age of Human Rights: General Course on Public International Law’ [2003] 301 Recueil des cours de l’Académie de droit international de La Haye 1, 108: ‘International humanitarian law has been based on a fundamental neutrality – colour blindness if you will – of rules governing the conduct of war. The legality of recourse to war, the jus ad bellum, had no consequences on how wars were to be fought, for the jus in bello’.

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non-international conflicts. Furthermore, the rule of State sovereignty entitles States to use force in their territory. To compare, the aim of jus ad bellum is to limit the use of force between States, not within a single State. This is why in the case of non-international armed conflicts, States should rely on international law on human rights, as well as international humanitarian law (jus in bello) which is applied in the case of the abovementioned conflicts49.

Consequently, each party to a non-international armed conflict (i.e. government forces and organised armed groups) is responsible for observing and applying the principles and norms of IHL. Moreover, this obligation is valid regardless of the position of a given belligerent party or the situation it is in. This position was highlighted, amongst others, by the Inter-American Commission on Human Rights in the case regarding the attack of Movimiento Todos por la Patria (MTP) militants on the Argentinean military barracks in the town of La Tablada in 1989.50). Indeed, according to the Commission; Unlike human rights law which generally restrains only the abusive practices of State agents, Common Article 3’s mandatory provisions expressly bind and apply equally to both parties to internal conflicts, i.e., government and dissident forces. Moreover, the obligation to apply Common Article 3 is absolute for both parties and independent of the obligation of the other. Therefore, both the MTP attackers and the Argentine armed forces had the same duties under humanitarian law, and neither party could be held responsible for the acts of the other51.

49

Lubell (n 35) 8-9. More about this question – vide François Bugnion, ‘Jus ad Bellum, Jus in Bello and Non-International Armed Conflicts’ [2007] 6 Yearbook of International Humanitarian Law 167, 167-198.

50

This is also known as the ‘La Tabalda case’.

51

Juan Carlos Abella v Argentina (La Tablada Case), IACHR Report No. 55/97, Case 11.137, OEA/ Ser.L/V/II.95 Doc.7 rev (1997), para. 174.

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6. Norms of humanitarian law as obligations erga omnes Basic principles and norms of IHL are binding erga omnes, which means that all States – even those unaffected by hostilities – may protest against violations and demand compliance52. This fundamental principle has been included in common Article 1, which obliges States Parties ‘to respect, and ensure respect’ for the provisions of the four Geneva Conventions. As an example, the ICJ in its 1986 judgement of Nicaragua v United States clearly underlined that this obligation also concerns the government of the United States. The Tribunal determined that this obligation results not only from the Geneva Conventions, but also from the basic principles of humanitarian law to which the Conventions only provide specific content53. In the same vein, in its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the Court considered that Israel, by violating some of the obligations in the scope of IHL, violated the obligations erga omnes, thus, according to abovementioned common Article 1: inasmuch as the construction and maintenance of the wall in the Occupied Palestinian Territory constitutes grave breaches of [the Fourth Geneva] Convention, the States parties to that Convention are under an obligation to prosecute or extradite the authors of such breaches54.

Protecting people affected by war is thus ‘conceived of as a matter of public concern within the international community’55. As the ICTY 52

Dörmann et al., ‘Commentary’ (n 19) para. 1 and 3. Compare DRC v Uganda (n 39) para 345(3).

53

Vide Nicaragua v United States (n 10) para 220.

54

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, para. 146. Compare Dörmann et al., ‘Commentary’ (n 19) para. 2 in fine (‘The [Geneva] Conventions (…) create obligations erga omnes partes, i.e. obligations towards all of the other High Contracting Parties’).

55

Thürer (n 4) 52. Compare Jochen A. Frowein, ‘Reactions by Not Directly Affected States to Breaches of Public International Law’ [1994] 248 Recueil des cours de l’Académie de droit international de La Haye 1, 345 et seq.

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rightly expressed in the Prosecutor v Zoran Kupreškić case56, the rules of humanitarian law: lay down obligations towards the international community as a whole, with the consequence that each and every member of the international community has a ‘legal interest’ in their observance and consequently a legal entitlement to demand respect for such obligations57.

The obligation to respect and, ensure respect, to the Treaty and customary IHL is also confirmed by the practice of States and international organisations. Indeed, in British manual of the law of armed conflict of 2004 it has been underlined that: States are under a general obligation to issue orders and instructions requiring compliance with the law of armed conflict and to take steps to see that those orders and instructions are observed58.

According to the German handbook on the International Humanitarian Law of Armed Conflict of 2006, every member of the military personnel is individually responsible for observing IHL norms, and all orders must be issued in accordance with these norms59. In 2005 the UN Commission on Human Rights adopted a resolution concerning the protection of the human rights of civilians in armed conflicts, in which the Commission urged ‘all parties to armed conflicts to comply with their obligations under international humanitarian law’ and called upon States to ‘respect and to ensure respect for relevant international humanitarian law instruments and customary international law’60. Similarly, in a resolution 1085 adopted in 1996, the Parliamen56

Prosecutor v Zoran Kupreškić (n 28).

57

Prosecutor v Kupreškić (n 28) para 519.

58

UK Ministry of Defence, ‘The Manual of the Law of Armed Conflict’, 1 July 2004, para16.2.

59

‘Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch’, DSK SF009320187, Bundesministerium der Verteidigung, R II 3, August 2006, p 3.

60

UN Commission on Human Rights, ‘Protection of the human rights of civilians in armed conflicts’, Res. 2005/63, 20 April 2005, para. 2, 4.

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tary Assembly of the Council of Europe called upon the governments of Member States to ensure that Geneva Conventions, their Additional Protocols and other IHL regulations are strictly respected in all circumstances61. This obligation has also been underlined by the European Union in its Updated Guidelines on promoting compliance with IHL of 2009 – according to paragraph 5, ‘States are obliged to comply with the rules of IHL to which they are bound by treaty or which form part of customary international law’62.

7. Norms of humanitarian law as jus cogens The basic principles and norms of IHL are generally perceived as peremptory norms (jus cogens) in the hierarchy of norms of the international law63. This position was indirectly confirmed by, amongst others, the International Court of Justice in Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. The Court determined that many rules of humanitarian law are fundamental for respecting the human being and as ‘elementary considerations of humanity’64. Apart from this, the basic rules of IHL are respected by all States because they form the ‘intransgressible principles of international customary law’65. Similar statements were issued by ICTY the Prosecutor v Zoran Kupreškić – according to the Tribunal; ‘most norms of international humanitarian law, in particular those pro61

Council of Europe, Parliamentary Assembly, Res. 1085, 24 April 1996, para. 8(a).

62

‘Updated European Union Guidelines on promoting compliance with international humanitarian law (IHL)’, 15 December 2009, 2009/C 303/06, para 5.

63

Thürer (n 4) 52. According to Article 53 of the Vienna Convention of 1969 (n 24), a peremptory norm of general international law is: ‘a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’.

Compare the ICTY definition in the Prosecutor v Anto Furundžija case: ‘A peremptory norm or jus cogens principle is a norm that enjoys a higher rank in the international hierarchy than treaty law and even ordinary customary rules’ (Prosecutor v Anto Furundžija, ICTY Trial Chamber Judgement, Case No. IT-95-17/1-T, 10 December 1998, para. 153).

64

For the first time the ICJ used this phrase in the Corfu Channel case – vide The Corfu Channel Case, Judgement of 9 April 1949, ICJ Reports 1949, p 22.

65

Legality of the Threat or Use of Nuclear Weapons (n 12) para79. Compare Construction of a Wall Opinion (n 54) para 157.

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hibiting war crimes, crimes against humanity and genocide, are also peremptory norms of international law or jus cogens, i.e. of a nonderogable and overriding character’. 66.

International humanitarian law has been formulated to react to exceptional circumstances which occur during armed conflicts. Similarly, to some of the fundamental human rights, such as that of the prohibition of torture, the basic norms of IHL cannot be limited, nor can there be any deviations from them. As Jean Pictet highlights, the rights attributed to the persons protected by the Geneva Conventions of 1949 are inviolable and, therefore ‘there could no longer be any question of those rights being liable to withdrawal or restriction as a result of a violation’67.

Similar statement has been articulated by Judge Weeramantry in his dissenting opinion in the Legality of Nuclear Weapons case – Judge Weeramantry ascertained that: The rules of the humanitarian law of war have clearly acquired the status of jus cogens, for they are fundamental rules of a humanitarian character, from which no derogation is possible without negating the basic considerations of humanity which they are intended to protect68.

To sum up, the balance between rules and restrictions, included in the guarantees of the international system of human rights, was also included in the international humanitarian law69.

66

Prosecutor v. Kupreškić (n 28) para 520. More about the peremptory character of IHL norms – vide Alexander Orakhelashvili, Peremptory Norms in International Law (Oxford University Press 2006) 61-64.

67

Jean S. Pictet (ed.), Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field: Commentary (International Committee of the Red Cross 1952) 346.

68

Legality of Nuclear Weapons Opinion – Dissenting Opinion of Judge Weeramantry, ICJ Reports 1996, p 496. Compare Legality of Nuclear Weapons Opinion – Dissenting Opinion of Judge Koroma, ICJ Reports 1996, p574.

69

Thürer (n 4) 52-53.

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8. Conclusions The short analysis of the characteristic features of IHL presented above needs a few general, summarising conclusions.

Though the humanitarian law applied during armed conflicts does not prohibit the use of violence, it aims at limiting the use of violence by such means as the protection of those who do not participate in hostilities (e.g. civilians) or who stopped being directly involved in the fighting (e.g. the wounded, the sick, prisoners). Hence, the humanitarian law necessitates the separation of combatants (members of the armed forces) from the civilian population, and the separation of military objectives from civilian property, allowing only for the targeting of combatants and military objectives. Moreover, in the light of humanitarianism, the law prohibits the use of unnecessary and unjustified violence towards the enemy, which leads to needless suffering and excessive destruction. In other words, IHL subjugates the actions of the parties to a given conflict to the requirements of humanitarianism.

This humanitarianism brings closer IHL to the international human rights law, placing the value of the human being at the top70.

Some of the regulations exist in both of these branches of international law, e.g. the prohibition of torture, inhuman and degrading treatment, collective punishments, and retroactive criminal convictions or punishments, as well as the right to a fair trial. Importantly, these rules are of fundamental and universal character and many are recognised in the international law as peremptory norms. In fact, within international law, ‘some norms are more important than others, but all of them yield precedence to the basic provisions of international humanitarian law’71. However, one cannot identify the legal system of IHL with the international human right law. There are some rights, like the right to life or the prohibition of arbitrary deprivation of liberty, which are regulated in each system with different detailed 70

In the Prosecutor v Anto Furundžija case (n 63) the ICTY underlined that ‘[t]he general principle of respect for human dignity is the basic underpinning and indeed the very raison d’être of international humanitarian law and human rights law’ (para 183).

71

Thürer (n 4) 53.

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rules72. Besides, IHL consists not only of rules of protection, but also rules governing the prohibitions and limitations on the means and methods of warfare – the area of regulations is only a characteristic humanitarian law.

The violence allowed during armed conflicts may be applied only to such an extent that is necessary to achieve the goal of the armed conflict, which – regardless of the reasons for the conflict – might only be the weakening of the military potential of the enemy73. Hence, the cause of conflict has no influence on the application of IHL and the aim of hostilities has been clearly defined by this law. Moreover, only such military action is allowed (not prohibited by international law) which is necessary (in military terms) to defeat the enemy as quickly as possible. Importantly, the rules of humanitarian law directly address both States and non-State actors. Common Article 3 refers to ‘Parties to a conflict’ in order to create the same obligations on both the government and organized armed group(s) in non-international armed conflict74. The authors of the updated commentary on the First Geneva Convention emphasize that the obligation to respect IHL: is not only independent of an express acceptance of common Article 3 by the non-State Party, but also of whether an opposing Party in practice adheres to the provisions of common Article 3. Furthermore, common Article 3 is based on the principle of equality of the Parties to the conflict. It grants the same rights and imposes the same obligations on both the State and the non-State Party, all of which are of purely humanitarian character75.

Thus, the principle of equality holds that ‘all parties to an armed conflict have the same rights and obligations as a matter 72

Vide Louise Doswald-Beck, ‘Human Rights in Times of Conflict and Terrorism’ (Oxford University Press 2011) 122-123. Compare Meron, ‘The Humanization of International Law’ (n 8) 45.

73

Nils Melzer, ‘International Humanitarian Law: A Comprehensive Introduction’ (International Committee of the Red Cross 2016) 17.

74

Doswald-Beck (n 73) 117-118.

75

Dörmann et al., ‘Commentary’ (n 19) para. 154.

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of law, irrespective of the justness of their cause’76.

As a well-established branch of international law, based on fundamental principle of humanity and other humanitarian rules constituting the greater part of jus cogens, binding under all circumstances, international humanitarian law impose certain duties with the erga omnes effect – on all States and on the international community; duties which cannot be set aside as a matter of State interest77. However, despite its specific qualities or even the ‘self-contained regime’78 approach, IHL remains a part of the system of international law, and though it is characterised by a certain degree of autonomy, the eventual context of existence of the humanitarian law in terms of validation and interpretation is formed by the principles and rules of the general international law79.

76

Sandesh Sivakumaran, ‘The Law of Non-International Armed Conflict’ (Oxford University Press 2012) 243.

77

Thürer (n 4) 322-323.

78

UN International Law Commission, ‘Conclusions of the work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law’, 2006, para. 3(12) <http://legal.un.org/ilc/texts/instruments/english/ draft_articles/1_9_2006.pdf> accessed 22 September 2017.

79

Vide Roman Kwiecień, ‘Teoria i filozofia prawa międzynarodowego. Problemy wybrane’ [Theory and Philosophy of International Law. Selected Problems] (Difin SA 2011) 97-98.

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Legal History

The Malta Government Gazette: A chronicle of history in the making Kevin Aquilina

Professor Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta and Head of the Department of Media, Communications and Technology Law.

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This is a revised and amplified text for publication of a paper delivered by the author on 1 June 2017 at the 14th European Forum of Official Gazettes’ annual conference entitled ‘Closer and more Relevant to our Citizens’ held at The Palace Hotel, Sliema.

1. Introduction

I

n this paper, I discuss the history in brief of The Malta Government Gazette1, its relation to Maltese Law and to other competitors publishing in its field, both foreign (the Official Journal of the European Union) and local (the House of Representatives, Justice Services, Public Consultations Online, and Ministry of Foreign Affairs websites), the Public Law of Malta, and the Draft Administrative Code in relation to the Gazette, the Gazette’s utility to a researcher, a one-stop shop for government information dissemination and difficulties encountered in researching government-held information.

This piece also attempts to forecast the Gazette’s future while making recommendations for change and noting its relevance within the realm of Human Rights Law.

2. Brief History of ‘The Malta Government Gazette’ The official journal in use by the public administration in Malta is called ‘The Malta Government Gazette’. The first issue was published on Wednesday, 27 October, 1813, at a time when Malta was still a colony of the United Kingdom, hence between 1800 and 1964. When originally published, its title was the Gazetta del Governo di Malta.2 It was printed only in the Italian language, Italian being, at that time, the language of the public administration. Indeed, this was also the language used previously by the Knights of the Order of St John.

1

Hereinafter referred to as ‘the Gazette’.

2

Translation: The Gazette of the Government of Malta.

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From Wednesday, 7 August 1816, it came (and so continues) to be known as ‘The Malta Government Gazette’ and began to be published in two languages – both in Italian and English. In fact, it was published as one journal but with two columns, side by side, one in Italian and another in English. This division has been retained to date though now the languages are Maltese and English. It was during the 1930’s that English took over from Italian.

What is noteworthy is that from its inception, on the very first page, the Gazetta del Governo di Malta and, subsequently, ‘The Malta Government Gazette’, had a notice – originally in Italian and subsequently translated into English – to the effect that: All Public Acts inserted in this Gazette are Official, and are to be obeyed as such. By command of His Excellency the Governor.

A. Wood, Chief Secretary to Government.

The Gazette’s mission, though specifically undeclared, is that of making public acts accessible to the public. The notice reproduced above is informing the reader that the Gazette consists of ‘public acts’ which are, in turn, binding upon the people once these ‘public acts’ are ‘to be obeyed as such’. In other words, they are law. Indeed, an examination of the Gazette clearly indicates that it is made up of primary laws, subsidiary laws, and other notices which have the force of law. What at that time was named a ‘public act’ has, since 1964, been re-designated in the Constitution – and, since 1975, in the Interpretation Act – as ‘instruments having the force of law’.

A cursory glance at the multifarious issues of the Gazette does nevertheless indicate that there have been instances where material was published therein only in one language (normally English) as, for instance, with reports originally written in English and for which no Italian (or, subsequently, Maltese) translation accompanied it either side by side or on separate pages. In the 1930’s, the Gazette had information contained therein, which was published in up to three diverse languages – Italian, English, and Maltese – even if the said informa449

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tion was not given in all these three languages but sometimes in one and at other times in two – though, at a later date, only in English and Maltese. In this respect, Geoffrey Hull writes that: The Letters Patent of 16th August, 1934 declared English, Maltese and Italian to be official languages in Malta. However, English was to be the sole medium of administration and of public records, documents and government notices; Maltese or Italian translations of these were to be purely optional wherever ‘desirable and convenient’. English and Maltese were to be paramount in the civil service. Maltese became the ‘general language’ of the law-courts, and at the University teaching in Italian was to cease in the Faculty of Law.3 Legislatively, the Malta Constitution (Amendment) Letters Patent 19344 - which came into effect on 1 October 1934 – introduced a new Article 57 to the Malta Constitution Letters Patent of 14 April 1921, which read as follows: 57. (1) The English language, as the official language of the British Empire, and the Maltese language, as the language of the people of Malta, and the Italian language, shall be the official languages of Malta. The English language shall be the official language of administration, and all official records and public documents and all notices of public importance or interest issued by the Maltese Government shall be in that language, without prejudice, however, to the Maltese or Italian languages being used in addition to the English text in such records, documents, and notices as aforesaid, in so far as may be found desirable and convenient. Nothing shall be done by way either of legislation or of administration which shall diminish or detract from the position of the English or Maltese languages as official languages 3

Geoffrey Hull, The Malta Language Question: A Case Study in Cultural Imperialism (Said International Ltd. 1993) 81.

4

The Malta Government Gazette No 7937 (21 August 1934).

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or tend to restrict their use in education or in the public service.

These Letters Patent also regulated the language to be used in Court and in legislation. As to the latter it was provided in Article 57(3)(i) that: 57. (3) (i) The English version of all laws which have been published in the Government Gazette shall be an official text of the law. (ii) A translation of all existing laws into the Maltese language shall be prepared as soon as convenient and published under the authority of the Governor, and when so published shall be an official text. Until such time as an official text in Maltese is published it shall be lawful in cases where the proceedings are being conducted in the Maltese language for all purposes to refer to the English text instead of the Maltese text.5 Further Article 13 of the Malta Constitution Letters Patent 1921 was substituted by the following: 13. The Governor shall cause every Ordinance and Order in Council so made as aforesaid to be printed in the Malta Gazette, in both the English and Maltese languages, for general information, and shall as soon as practicable also cause a fair copy of such Ordinance or Order in Council signed by him and printed in the English and Maltese languages, which shall for this purpose be of equal force and validity, to be enrolled on record, in the Office of the Registrar of Our Court of Appeal in Malta, and such copy shall be conclusive evidence as to the provisions of every such Ordinance or Order: pro5

The Hon Mr Justice William Harding, then Commissioner responsible for the compilation of the Revised Edition of the Laws of Malta 1942, wrote that: ‘The task assigned to the Commissioner included ... the preparation of a Maltese text which, with regard to legislation up to the 1st October, 1934, did not exist at all’. See William Harding, The Revised Edition of the Laws of Malta in Force on 31st Day of December 1942 (Malta Government Printing Office 1943).

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vided, however, that the validity of any such Ordinance or Order shall not depend upon the enrolment thereof.

From 4 February 1921 onward, a Supplement began to be published in The Malta Government Gazette. From 1959 onward the Supplement was originally divided into three parts which later became four.

Part A contains Primary Laws,6 that is, Ordinances made by the British Governor of Malta, Acts of Parliament made by the Maltese Legislative Assembly, and Letters Patent containing the Constitutions of Malta made by the British Monarch. Part B consists of Subsidiary Legislation known by the general name of ‘Legal Notices’.7 These include regulations, rules, orders, bye-laws, and warrants, made by a public officer or a statutory body under authority of a primary law. Part C consists of draft primary legislation called ‘Bills’8. These Bills are, on enactment, transformed into Acts of Parliament. In 1993 Malta enacted its law on local self-government – the Local Councils Act, 19939 – and under this law local councils are authorised to approve bye-laws (a form of subsidiary legislation) applicable within the boundaries of a particular locality to which they are addressed. A Part D was developed where these bye-laws were published, a practice which persists to date.10 In 1964 Malta gained its independence from the United Kingdom and Maltese became the national language11, though both Maltese and English are official languages of Malta.12 Another development which took place was when the Gazette was digitised and began to be available on the website of the Department of Information.13 Mr Paul Azzopardi, incumbent Director of Information, who is responsible for the compilation and publication of the Gazette, recounts, in private 6

The first issue was published on 6 February 1959, The Malta Government Gazette No 11,177.

7

The first issue was published on 9 January 1959, The Malta Government Gazette No 11,173.

8

The first issue was published on 30 January 1959, The Malta Government Gazette No 11,176.

9

Local Councils Act, Chapter 363 of the Laws of Malta.

10

The first issue was published on 16 August 1994, The Malta Government Gazette No 15,996.

11

Constitution of Malta,, Article 5(1).

12

ibid Article 5(2).

13

Department of Information <www.doi.gov.mt> accessed 10 November 2017.

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conversation with the author, that due to legal requirements, since then, only a maximum of three dozen copies of each issue are printed of the Gazette. The last issue of the Gazette which was published before going online was that, on 3 June 2003,14 though the Gazette website contains previous issues which date back to 31 July 2002.15

3. The Gazette and its Constitutional and Legal Status under Maltese Law In the Maltese legal system, the responsibility of the Gazette falls under the Office of the Prime Minister. It is the Department of Information within the Office of the Prime Minister which, in practice, is responsible for the production of the Gazette. Its printing takes place at the Government Printing Press. There is no discussion in Malta about the establishment of a government agency to produce and print the Gazette or to privatise its production and/or publication.

Possibly, this is because past experience has indicated that the Gazette is not a viable commercial undertaking and the Government has to make do for the expenses incurred in connection therewith. With the Gazette’s digitisation, it became available free of charge on the Department of Information’s web portal.16 There is no copyright claimed both for the content and layout of the Gazette. The same applies for the Laws of Malta. As to the latter, legislation is no longer published online as part of the Gazette but is published by the Ministry responsible for justice in its www.justiceservices.gov.mt portal. This procedure was established after the Gazette went online. Prior to that, official legislation (both primary and subsidiary) was published as a supplement to the Gazette. Hence, Acts of Parliament, for primary legislation, and legal notices, for subsidiary legislation, are no longer published in the Gazette portal even though, 14

The Malta Government Gazette No 18,924. Department of Information Press Release No 770 (24 June 2003).

15

The Malta Government Gazette No 18,949 (31 July 2002).

16

Government of Malta, ‘Department of Information’ <http://www.gov.mt/en/Government/ DOI/Pages/Department-of-Information.aspx> accessed 10 November 2017.

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to date, they are still published as supplements to the printed version of the Gazette. To a certain extent, this is a betrayal of the Gazette’s mission to make legislation accessible. The difficulty with this is that, although stricto jure, legislation is published in the Gazette, it is not available on the same website portal where the Gazette is published even if legislation forms part of the Gazette by way of supplements thereto (as used to be the position in the past). Instead, said legislation is now published on the Justice Ministry’s website. Furthermore, the single legislation service (consisting of Acts of Parliament and Legal Notices) as well as the Laws of Malta, as consolidated by the Law Commission under the Statute Law Revision Act, are available on the justice ministry website, but not on the Gazette website.17 Although, prima facie, this might appear to be in breach of Article 72(4) of the Constitution,18 this works out not to be so because the Gazette is still printed, though not available any longer for purchase by the public, in a very limited number, containing both Acts of Parliament and Legal Notices. Formally speaking, it can therefore be stated that the Government is still respecting the wording - though not necessarily the spirit - of Article 72(4) of the Constitution19 in so far as the limited number of copies printed of each issue of the Gazette is concerned (though this is not the case with the online version of the Gazette. However, the Constitution refers to the print, not to the online edition).

Whilst being given the highest possible recognition that it can 17

The justice ministry website provides the text of two types of laws: the original version of the law (this is the version which is found in the print format of the Gazette and the consolidated version of the law, the Laws of Malta, which are consolidated by the Law Commission when Parliament or a subordinate thereto enacts an Act of Parliament or makes a new Legal Notice.

When the said Act of Parliament and Legal Notice amend a primary or subsidiary law, the Law Commission updates the text of the law. This update, though available free of charge electronically, is not printed as part of the Gazette. Nonetheless, the consolidated version of the Laws of Malta does not provide for a multi-level legislative history of the original provision with updates in the sense that it is not possible to retrieve electronically the various amendments made over time to the text of a provision and to be able to understand how the provision was successfully amended over time. Furthermore, the Laws of Malta’s electronically available website does not contain an index as it did when published in print format.

18

Constitution of Malta, Article 72(4)- See below for the text of this provision.

19

ibid.

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get – through the Constitution of Malta – the Gazette’s content and layout remain, so far, unregulated by law. The matter has been left, over the years, to be addressed through administrative practice. Yet, this notwithstanding, Maltese law is replete with references to the Gazette. The highest law of the land, the Constitution of Malta, mentions it in several provisions. There are, however, two provisions – Articles 72(4)20 and 124(1)21 thereof – which should be singled out for citation purposes to demonstrate the constitutional importance of the Gazette. The former reads as follows: 72. (4) When a law has been assented to by the President it shall without delay be published22 in the Gazette and shall not come into operation until it has been so published, but Parliament may postpone the coming into operation of any such law and may make laws with retrospective effect.

The latter reads as follows: 124. (1) ‘Gazette’ means the Malta Government Gazette or any other official journal substituted therefor published by order of the Government of Malta; Another primary law which refers to the Gazette is the Interpretation Act.23 In the relevant part, it provides as follows: 3. (1) ‘Gazette’ means the Malta Government Gazette or any other official journal substituted therefor published by order of the Government of Malta; ...

3. (4) (d) The authentic text of international instruments to which Malta may be a party shall be that which the Minister may cause to be published on an internet 20

ibid.

21

Constitution of Malta, Article 124(1).

22

‘Published’ within the context of the 1964 Constitution means published in print (not electronic) format.

23

Interpretation Act, Chapter 249 of the Laws of Malta.

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site in exercise of the powers conferred by article 11(a) of the Statute Law Revision Act, 1980 and the text shall be consolidated with subsequent amendments, provided that a notice be published in the Gazette giving the address of the website wherein the said treaties or other international instruments are published.24

Electronic publication: 16. Where any act or document is required to be published in the Gazette, it shall be sufficient that such act or document is published in electronic format on CD Rom or is made available at a publicly accessible website on the internet and notice of such publication in electronic format on CD Rom or the availability of the document on the website is published in the Gazette: Provided that where an act or document is so published in electronic format on CD Rom or is so made available on a publicly accessible website on the internet, a hard copy thereof is made available for public inspection during normal office hours at a government department or office and notice of such availability is also published in the Gazette.25

Publication of laws on the internet: 11A (3) The Minister shall cause a notice to be published in the Gazette giving the address of the website 24

Currently available at <https://foreignaffairs.gov.mt/en/Treaties%20Series/Pages/ Treaties%20Search%20Page.aspx> accessed 10 November 2017. Act XIII of 2009 entered into force on 17 July 2009.

25

Articles 46 and 47 in Part X of Act No IX of 2003 were enacted by Article 47 of the 2003 enactment on 2.9.2003 and came into force on 1 May 2004 in virtue of LN 5 of 2004.

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wherein the said laws are published on the Internet.26

4. The Rise of a Foreign Competitor: The Official Journal of the European Union Since Malta acceded in 2004 to the European Union, the Gazette has lost its monopolistic status in the provision of official government information. A foreign competitor has raised its head – the Official Journal of the European Union. In this respect, three Maltese laws are relevant: the European Union Act27, the Interpretation Act28, and the European Union Acquis (Maltese Text) Order29. The European Union Act reads as follows: 5. (2) Judicial notice shall be taken of the Treaty, of the Official Journal of the European Union and of any decision of, or expression of opinion by, the Court of Justice of the European Communities or any court attached thereto on any such question as aforesaid, and the Official Journal shall be admissible as evidence of any instrument or any other act thereby communicated of any of the Communities or of any institution of the European Union.

The Interpretation Act also refers to the legal status of the Official Journal of the European Union: 3. (4) (e) For the purpose of publication of the legal instruments of the European Union to which Malta has acceded in accordance with the European Union Act, publication of the legal instruments on the Official Journal, judicial notice of which is authorised according to article 5(2) of the said European Union Act, and the offi26

These laws are published at <www.justiceservices.gov.mt> accessed 10 November 2017.

27

Chapter 460 of the Laws of Malta

28

Chapter 249 of the Laws of Malta

29

S.L. 460.03, Laws of Malta

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cial websites of the European Union shall suffice for the requirements of publication and it will not be necessary for the Minister to publish a notice to this effect with regard to all past, present or future legal instruments of the Union.

The Official Journal of the European Union is also referred to in the European Union Acquis (Maltese Text) Order, S.L. 460.03, wherein it is held that: An authoritative Maltese text of the operative part of the Regulations and Directives of the European Union shall, as from the 1st May 2004, be available on the following website: http://europa.eu.int/eur-lex/mt/dd/index.html.30 However, rather than being a competitor, one can view the Official Journal as complementing the Gazette in the light of S.L. 460.03 once European Union Law is published only in the Official Journal of the European Union and not in the Gazette.

5. The Public Law of Malta Malta inherited its Public Law from the British together with the administrative procedures followed by the public administration.

These include not only the procedures adopted by Parliament and the Cabinet of Ministers but also the way laws are enacted; the way government files are organised, held and subsequently archived; the registry system for public administration files; as well as file classification. Malta also inherited from the British the way the Gazette and its contents are published.

30

This is a broken link which takes you nowhere when you click on it. Undoubtedly S.L. 460.03 needs updating. The justice services website (justiceservices.gov.mt) has a link to EU Law, though this link is not referred to in S.L. 460.03. It is: http://www.justiceservices.gov.mt/page. aspx?pageid=118. This is a serious omission on the part of the legislator in S.L. 460.03 as there is no link to the justiceservices.gov.mt website in relation to EU Law. Further, in S.L. 460.03 EU treaties and regulations are not included.

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So far, as this author is aware, there has been no official rethinking about the format of the Gazette. At least he did not come across any published report/s in this respect. In 2012, the author was requested to act as Legal Consultant to the House of Representatives Select Committee on Re-Codification and Consolidation of Laws presided by the Hon. Dr Franco Debono and made up of the Hon. José Herrera and the Hon Dr Francis Zammit Dimech.31 The present author also drafted an Administrative Code for Malta.32 One of the matters which the author thought at that time was crying out for reform was, of course, the Gazette. Unfortunately, although the Gazette has been published for the last two hundred and four years, neither Parliament nor government have ever appointed a Committee of Inquiry to study the Gazette, to establish whether its format and content could be better improved, whether more government-held information could be made available to the public through the Gazette and, overall, how could the Department of Information disseminate more government-held information, more so now that the Gazette is available online and thus the potential for public dissemination can be better catered for.

6. 2012 Proposals Relating to the Gazette in the Draft Administrative Code In the Draft Administrative Code which the author presented to the said Parliamentary Committee on 7 May 2012, the following clause was included to regulate the Gazette:

Publication of laws in the Gazette.

36. (1) There shall be published as a supplement in the Gazette all municipal laws and such other official doc31

See <http://www.parlament.mt/sc-codification> accessed 10 November 2017.

32

The text of the Draft Administrative Code is available at <http://www.parlament.mt/sc-codification> accessed 10 November 2017.

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uments or classes of documents as may be required to be published by law or where publication is desirable for public information.

(2) All municipal laws and other official documents of the public administration shall be published in the Gazette without the need of obtaining prior authorisation from the Government for their publication provided that they have been approved by the authority who is by law vested with the power of making them.

(3) The public officer responsible for the publication of the Gazette shall ensure that all municipal laws and other official documents of the public administration are published in the Gazette without due delay.33

Division of the Gazette’s Supplement.

37. Publication of laws in the Supplement to the Gazette shall be classified as follows: (a) Supplement A – the Laws enacted by Parliament, that is, primary legislation; (b) Supplement B – legal notices made by a body or person delegated to make legislation, that is subsidiary legislation (also known as “secondary legislation” or “delegated legislation”); (c) Supplement C – Bills which are given a First Reading in the House of Representatives; (d) Supplement D – Bye-laws made in terms of the Local Councils Act; (e) Supplement E – Draft subsidiary legislation man33

ibid

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dated in terms of a provision of law or in terms of an administrative decision of the public administration seeking public consultation; (f) Supplement F – Directives and guidelines issued by the Prime Minister to entities of the public administration in terms of the Public Administration Act; (g) Supplement G – White Papers; (h) Supplement H – Green Papers; (i) Supplement I – such other publications not mentioned above of the public administration or any organs of the state of Malta which require publication in the Gazette to bring the contents of such publication to the attention of the public.34

7. The Rise of a First Domestic Competitor: The Website of the House of Representatives The House of Representatives has developed its website at www. parlament.mt. This website contains the text of all primary laws enacted by Parliament as well as of Bills. It also contains the text of legal notices. That apart, the site contains other information useful to a researcher because it provides in one page the text of a Bill and the legislative historical enactment of that Bill, that is, the various stages it would have followed until it is enacted into legislation together with minutes of each sitting, amendments proposed and rejected or adopted and votes taken. This is a very informative site but nonetheless, in certain respects, tends to repeat legislative information available on the justice services website.

34

ibid.

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8. The Rise of a Second Domestic Competitor: The Website of the Ministry responsible for justice It is also interesting to note that the Justice Ministry’s justice services website35, developed around May 2002, provides the text of all primary and subsidiary laws, and Bills. This service used to be originally provided in the Gazette when it used to be printed for mass consumption. For some time after the Gazette went online, the Department of Information began to publish Supplements A to D online as well, before ceasing to publish them online any longer as these migrated to the justice services website.

9. The Rise of a Third Domestic Competitor: The Public Consultations Online Website Although the current Labour government had pledged in its 2013 electoral manifesto that the Draft Administrative Code would become law during the 2013-2017 legislature, this was not to be. But what did happen, at least in so far as these proposals were concerned, was that a new website was created whereby public administration consultation documents (Green Papers, White Papers, Draft Bills, Draft Regulations, Draft Policies, and other consultation documents) are placed online. This website36 is administered by the Ministry responsible for Social Dialogue. The Public Consultations Online Website has as its declared mission the following: In the spirit of openness and transparency, the Government through this platform, encourages the general public, civil society organisations, trade unions, business organisations, political parties, governmental institutions and all others that would like to contribute, to participate in the process of online public consultation.

35

www.justiceservices.gov.mt

36

www.konsultazzjoni.gov.mt

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Needless to say, this is a commendable initiative which brings government information nearer to the citizen. In the past this information used to be printed in paper format by the Department of Information and, more often than not, as few issues were printed, it was not the first time that these documents ran out of print. At other times, certain consultations – like draft environmental regulations were printed as a Government Notice in the Gazette rather than with the Legal Notice Supplement. Not only are all consultation documents now available for downloading from the social dialogue website, but it is also possible to receive e-mail alerts each and every time a new consultation document is placed on the website. This website also enjoys a search function and a feedback function.

10. The Rise of a Fourth Domestic Competitor: The Ministry of Foreign Affairs Treaty Website As stated earlier the text of the treaties ratified or acceded to by Malta is not published as a separate supplement in the Gazette as is the case with Maltese laws but on the website of the Ministry of Foreign Affairs. There is no reference or hyperlink to this Ministry’s website on the Gazette’s portal or vice-versa.

11. The Gazette’s Utility for a Researcher The Gazette is not only the official government publication which provides a wealth of information on government activities, mainly legislation, but it also provides material of historic relevance such as when a new Cabinet is formed, its composition and the allocation of duties, various dates of appointments of public officers including high ranking officers of the state such as the President of Malta, Acting President, Chief Justice, Acting Chief Justice, jurors, high ranking civil servants, etc. The Gazette has such a wealth of historical information available. Nonetheless, a user does not find it easy to trace that information. Indeed, the data is readily available on the Department 463

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of Information’s website but it is not easy to access more so that it is intermingled with other data held by that Department, such as media releases. A more friendly data mining system accessible to researchers thus needs to be developed. Just to give an example in this context. In preparing this paper, this author wanted to establish which issue of the Gazette was the first to be published online, but to do so, he had to click 57 times to arrive at the very first page where he could trace the first issue of the Gazette online, quite a laborious task indeed.

12. One Stop Shop for Government Information?

If you study the clauses of the draft Administrative Code cited above37 related to the Gazette, it is evident that the main thrust of those provisions was to provide a comprehensive system of government-held information in only one place – the Gazette – as opposed to a fragmented system as exists today consisting of a plurality of stand-alone, not necessarily connected to each other by hyperlinks, sources where one can access government-held information. Today, with the internet it is possible to upload practically every shred of paper belonging to the public administration without, however, being easily accessible to the user. The key principle which should inspire the distribution of government-held information in the digital era is not much its accessibility but more its easy retrievability.

Whenever a search on the Gazette’s online portal is carried out, a reader ends up having to go through hundreds of links which provide information related to the key word s/he would have typed in the search function. But, more often than not, loads of this information, when accessed, ends up being totally useless for research purposes.

What is therefore needed is a more user-friendly approach to easy accessibility of government-held information. This applies to the various government portals related to: the laws of Malta, treaties adhered to by Malta, Court judgements, judgements by various other tribunals which are not available on the justice services website but on other stand-alone websites, government media releases, the Ga37

ibid.

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zette, etc. Other difficulties which one encounters as a researcher of government-held information are listed below.

13. Difficulties Encountered in Researching Government Information The Gazette is divided under various headings such as Government Notices, Tenders, Calls for Applications, Court Notices, Police Notices, Notices to Mariners, etc. However, no sub-divisions exist for these categories to make research more focused and faster. All the information is grouped together, and you cannot carry out a search relative only to say ‘Court Notices’, because your search will end up providing the reader with useless information of no pertinent interest. So if a reader wants only to search government notices, s/he will still get information on government media releases, tenders, calls for application, and other information not necessarily of interest to this research.

The various government portals providing government-held information are not inter-linked to each other in the sense that there is at least a hyperlink from the Gazette site to that of the Legal Services or Court Services website, alerting the researcher that if one does not find the information needed in the Gazette website it might be found elsewhere on another governmental portal. This is because website developers do not develop websites from a researcher’s point of view to make easily accessible the required information, but rather to follow the organisation in question’s needs. But that might not suit a researcher especially if s/he might not be well cognizable of the search function of that website or, should it not contain the required information, how to go about retrieving it from elsewhere.

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14. Recommendations in Relation to the Future of the Gazette Currently the Gazette is published both in print and online. Yet the print format is not available for purchase making only the online version freely available to the reader. Yet this reality is neither reflected in the Constitution nor in ordinary laws which refer to the print version. Notwithstanding, it is clear that it is the online version which is the one in use by readers. But the print version, for legal purposes, is authentic whilst the online version is not. The future of the Gazette is online rather than in print and this matter needs to be rectified because readers only consult the online version. If the purpose of the Gazette is to make public acts accessible to the public and if the public reads only the online version of the Gazette, then both the print and online versions ought to be authentic and legally binding. There is therefore the need to bring up to date the Constitution to current needs. Should there be a conflict between both versions, it should be the online (not the print) version which should prevail. What is nonetheless important is that the online version is archived and made easy accessible to readers for both printing and downloading purposes.

Another challenge which needs addressing is the protection of personal data. This is because the Gazette contains information of a personal nature especially in Court notices. The Gazette’s Editor is duty bound to ensure that the Gazette’s content is not in breach of the Data Protection Act.38 The problem which requires addressing is that there might be other legislation which is mandating publication in the Gazette of personal data in breach of the Data Protection Act. By which law is the Gazette Editor bound? As the Data Protection Act is transposing the European Union Data Protection Directive39 into Maltese law, then it is European Union law which should prevail over the domestic law. But the latter has not yet been brought in conformity with EU standards placing the Gazette Editor in an ambivalent 38

Data Protection Act, Chapter 440 of the Laws of Malta.

39

European Parliament and Council Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L 281, 31–50.

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position as to which law s/he is to follow.

Worth considering is also the urgent need to update the Interpretation Act40 to bring it in line with the current situation in relation to accessibility to the laws of Malta.

The main principle which should guide the dissemination of government-held information should be its easy accessibility, that so far as possible there should be at least one main government portal containing all the information on it ranging from government notices to government consultation documents, Court notices to Court judgements, tenders to calls for applications and so on and so forth.

Where this is not possible, there should at least be the availability of a hyperlink to other websites listing the type of government-held information available thereon.

Ideally, the information should be downloaded as a .pdf file or Word document rather than as HTML format, especially where the document is relatively long and has to be accessed offline, and that the search facility allows for a dual type of search, that is, by keywords and by a free text search. Both the Gazette and the government press releases sections of the Department of Information’s website should continue to be available on the same portal but in so far as government press releases are concerned, they should all have a meaningful title through which the reader understands what the main content of that press release actually is, rather than having a title with words to the effect that it is simply a statement by the government, whatever that might mean!

Both the Gazette and Department of Information Press Releases portals should allow the researcher to skip pages, that is, from page 5 s/he can skip straight to page 150 without the need of having to click pages 6, 7, 8, and so on and so forth, until s/he at last - Deo gratias! manages to arrive at the requested page. Otherwise researchers will desist from making ample use of this very well informative facility which however does not provide easy accessible information to gov40

Chapter 249, Laws of Malta

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ernment-held information at the push of only one button.

The online version of the Gazette should be the authentic and legally binding version, it should be archived in a format which is easily retrievable and searched (such as a .pdf file) and its contents should ensure respect for data protection. It should reflect the one-stop shop principle for government information whereby, even if not all the information is accessible on the Gazette’s website, it provides sufficient and adequate links to other sites where public acts can be acquired from or accessed. In this way, all forms of legislation, including consolidated legislation, amending laws and past versions of the law, case law, consultation documents, government policy, government-held information which by law is to be made accessible to the public, international conventions, parliamentary documentation, and regional government materials are made available through one common portal, granting access to the reader to all this information.

15. Conclusion: Human Rights Relevance of the Gazette By way of conclusion it must be kept in mind that the undeclared mission statement of the Gazette is to make public acts accessible to the public. This is not only a duty the public administration has to honour in relation to citizens but a human right which citizens enjoy.

The European Court of Human Rights has continuously stressed the requirement for a law to be made accessible to the public. The Gazette continues to be a conveyor of such information: In the Sunday Times case the Court held that accessibility means that the citizen ‘must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case’. For example, in Silver the Court held that the Standing Orders and Circular Instructions which the British Home Secretary issues to prison governors failed the accessibility test since they were not published, were not available to prisoners, nor were their contents explained in cell cards. They were, 468

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therefore, not ‘law’ for the purpose of Article 8, paragraph 2.41 Had this information been made available in the United Kingdom official gazette, it would have been a totally different matter!

Finally, to continue to tie the Gazette with Human Rights Law, it is a mouthpiece of the human right principles of legality42 and legal certainty43 and has to be granted the due importance that it merits on the Maltese Statute Book through the enactment of a law which regulates its production, publication and dissemination.

41

Steven Greer, The Exceptions to Articles 8 to 11 of the European Convention on Human Rights (Council of Europe Publishing 1997) 10.

42

For a discussion of this principle, see Kevin Aquilina, The Human Right Principle of Legality: Nullum Crimen/Nulla Poena Sine Lege, in David E. Zammit (ed.), Maltese Perspectives on Human Rights (Foundation for International Studies 2009) 52-75.

43

For a discussion of this principle, see Kevin Aquilina, The Human Rights Implications of a Non-Literal Transposition in Malta of Article 1 of Council Framework Decision 2008/913/EU (Vol. XXVII Id-Dritt.2017) 251-276.

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Maritime Law

Unmanned Surface Vehicles and Piracy: Identifying the (new) legal problem Caroline Grech

Caroline Grech acquired the Notary Public Diploma from the University of Malta in 2014, an LL.D in 2016, as well as an LL.M in Commercial Law from the Erasmus University in Rotterdam in 2017. She was a Legal Trainee with Chetucti Cauchi Advocates, beofre joining the Corporate and Shipping Department of ARQ Group in Malta.

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1. Introduction

P

iracy is a known crisis in shipping, and there is nothing to stop it from happening in unmanned shipping. In the past few years, there has been ground-breaking development of unmanned surface vehicles (USVs).1 In laymen terms, a USV is a vessel without physical presence on board, but controlled from a land-based navigational office.2 With the introduction of USVs, the maritime industry has become aware that legal concepts necessitate change to be able to mirror modern developments.3 This article examines USVs within the legal context of piracy. Unlike the innovation of USVs, piracy has been a maritime menace since time immemorial.4 The ultimate question remains: will the game for pirates change radically with the introduction of USVs? The concept of USVs was initially adopted for military operations, but is currently being sought for application in the commercial maritime industry.5 With an outburst in debate, design and construction of USVs, engineers predict that USVs will be sailing within the next decade.6 Companies, such as Rolls Royce have already attempted to commercialize USVs and have successfully completed USV systems for various maritime applications, and are now currently running their test phase.7 Additionally, the European Union has shown significant interest by partially funding the Maritime Unmanned Naviga1

D A J Vallejo, ‘Electric Currents: Programming Legal Status into Autonomous Unmanned Maritime Vehicles’ [2015] 47 Case Western Reserve Journal of International Law 405.

2

E Van Hooydonk, ‘The Law of Unmanned Merchant Shipping – an exploration’ [2014] 20 Journal of International Maritime Law 403.

3

J D Peppetti, ‘Building the Global Maritime Security Network: A Multinational Legal Structure to Combat Transnational Threats’ [2008] 55 Naval Law Review 73.

4

J Kraska and B Wilson, ‘Piracy Repression, Partnering and the Law’ [2009] 40 Journal of Maritime Law and Commerce 43.

5

Kimon P Valavanis, Advances in Unmanned Aerial Vehicles: State of the Art and the Road to Autonomy (1st edn, Springer 2007).

6

R Sansone, ‘Unmanned Vessels: A Defensive Solution to Piracy?’ (USF School of Law, 5 March 2014) <http://lawblog.usfca.edu/maritime > accessed 18 October 2016.

7

Issac Amsdorf, ‘Rolls-Royce Drone Ships Challenge $375 Billion Industry: Freight’ (Bloomberg, 25 February 2014) <http://www.bloomberg.com/news/articles/2014-02-25/rolls-royce-droneships-challenge-375-billion-industry-freight> accessed 18 October 2016.

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tion through Intelligence in Networks project, aiming towards building and developing USVs.8 As USV’s launch themselves into the future era of shipping, legislators have not yet established the concept of USVs within legislative maritime instruments.9 Thus, whilst technological solutions are being deployed at fast rates, it seems that legislation is not yet up to speed, although gradually gaining significant momentum.10 As a matter of fact, the International Maritime Organization (IMO) has accepted the application submitted by the United Kingdom, International Association of Institutes of Navigation (IAIN), and the Institute of Marine Engineering, Science and Technology (IMarEST) on an initiative to explore the inclusion of USVs within the existing IMO regulatory framework.11 However, it is still unknown in which manner USVs will be integrated in legislation within the ambit of piracy.

Some authors believe that with the introduction of USVs, legislation need only be adjusted and amended accordingly. Others favour the view that legislation should be catered for afresh.12 Therefore, how will the current definition of piracy fit, if ever, in view of the coming of USVs?

2. The Definition of Piracy in view of a ‘Physical’ Attack Against USVs 8

MUNIN, ‘About MUNIN -Maritime Unmanned Navigation through Intelligence in Networks’ (MUNIN, 8 March 2016) <http://www.unmanned-ship.org/munin/about/ > accessed 12 October 2016.

9

Van Hooydonk (n 2).

10

IMO ‘The IMO regulatory framework and its application to Marine Autonomous Systems Submitted by the United Kingdom, International Association of Institutes of Navigation (IAIN) and the Institute of Marine Engineering, Science and Technology (IMarEST)’ [2015] MSC 95/ INF 20.

11

ibid.

12

Henrik Segercrantz, ‘Unmanned Vessels: The Future is Now’ (Marine Link, 26 October 2015) <http://www.marinelink.com/news/unmanned-vessels-future399923> accessed 19 October 2016.

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The definition of piracy found in United Nations Convention on the Law of the Sea (UNCLOS)13 is the most widely used definition in exemplifying the act of piracy. Many courts have agreed upon this and hence it will be used for the purpose of this article.14 According to UNCLOS, the crime of piracy contemplates ‘any illegal acts of violence or detention, or any act of depredation’.15 These acts are committed for ‘private ends’16 by pirates of a ‘private ship’17 and are aimed against other ships, persons or cargo on board ships on the high seas or places outside the jurisdiction of States.18 Furthermore, piracy consists of ‘any act of inciting or of intentionally facilitating’19 the act of piracy.

At face value, this definition leads to the question of whether a USV can be considered a ‘ship’ within the meaning of UNCLOS.20 Thus far, the general consensus is that USVs will classify as a ‘ship’.21 However, it is not within the scope of this article to elaborate on how legislators have reached this conclusion. Once this issue has been established, there is no difficulty in applying the legal structure of the definition of piracy in the context of USVs. The first element imposes ‘acts of violence and detention’.22 Acts involving the use of violence need not be exerted against a person 13

United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (UNCLOS).

14

United States v. Dire, 680 E3d 446, 459, 2012 AMC 1217, 1236 (4th Cir. 2012); United States v.

Said, 680 F.3d 374, 375, 2012 AMC 1266, 1267 (4th Cir. 2012).

15

UNCLOS, s 101(a).

16

ibid.

17

ibid.

18

ibid s 101(a)(i),(ii).

19

ibid s 101(c).

20

C H Allen, ‘The Seabots are Coming Here: Should they be Treated as ’Vessels’?’ [2012] 65 The Journal of Navigation 749.

21

A H Henderson, ‘Murky Waters: The Legal Status of Unmanned Undersea Vehicles’ [2006] 3 Naval Law Review 55.

22

UNCLOS, s 101(a).

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but could also be directed against the ship itself.23 Violence against a USV sailing in pirate-infested waters is probable and well expected.24 It is common knowledge that the preferred business of pirates’ attack is intended for ransom purposes.25 The maritime industry anticipates, or rather hopes, that having no human factor on board acts as a discouragement for pirates to physically attack a vessel, with the ultimate goal of hostage taking becoming inexistent. Controversially, USVs may be seen as a fruitful opportunity of an unopposed attack.26 The second element constituting the definition of piracy necessitates that the act of violence by pirates is performed on the ‘high seas’.27 This area begins at the seaward tip of the State’s territorial sea boundary.28 In order to determine whether an act of piracy has been committed, the place of the physical attack must be correctly established. In view of USVs loaded with modern technology, this element should be relatively uncomplicated to prove. Provided that USVs will be equipped with live/recording camera devices, it would be somewhat straightforward to establish the moment the piracy attack ensued.29 This element is established in order to determine the applicable jurisdiction.30 Combining both elements seem to indicate that the current definition posed in UNCLOS may possibly serve to fit the context of USVs physically attacked by pirates. What remains unclear is whether the elements of the definition would encompass hacking of the USV’s 23

Inst. of Cetacean Research v. Sea Shepherd Conservation Society, 725 F3d 940, 944, 2013 AMC 1695,1698 (9th Cir. 2013).

24

M G Scavelli, ‘Unchartered Waters: The Private Sector’s Fight against Piracy on the HighSeas’ (2011) 76 Brooklyn Law Review 343.

25

Van Hooydonk (n 2).

26

Pritchett (n 12).

27

UNCLOS s 101(a)(i).

28

UNCLOS s 3.

29

The Economist, ‘Ghost Ships: Autonomous cargo vessels could set sail without a crew under the watchful eye of captains in shore-based simulators’ (Technology Quarterly, 8 March 2014) <http://www.economist.com/news/technology-quarterly/21598318-autonomous-cargo-vessels-could-set-sail-without-crew-under-watchful-eye> accessed 19 October 2016.

30

Pritchett (n 12).

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electronic information system.

3. Hacking of the Vessel’s Electronic Information System – Piracy or Not? A distinction must be drawn between ‘physically’ attacking a vessel and ‘hacking’ a USV’s electronic information system. Does hacking and taking control of a vessel without leaving the shoreline on the other side of the world, constitute the basis for an act of piracy?31 The consequences, impact, and outcome of physically attacking a vessel on the one hand, and electronically hacking a vessel on the other are entirely a different story.32 Whilst in the former, the risk is attributed to the crewmembers on board, cargo, and the vessel itself, in the latter all risk is borne by the owner of the vessel and the cargo interests. With the absence of the human factor on board, but operating through technological systems, it is likely that hacking the USV’s electronic information system creates a contemporary mode of piracy.33 It is doubtful as to whether exploiting the USV’s electronic information system would be considered as ‘violent’ within the scope of the definition attributed to piracy.34 The reason being, that many crimes involving violence entail the element of physical force. It can be concluded that due to this, hacking of a USV’s electronic system would not fall within the ambit of this definition. However, an electronic information system is a machine that transfers information to and from, which also involves some kind of human physical aspect when accessing its data.35 Then again, the modes used in these machines to deny unauthorized access to persons, such as security walls, are virtual and the physical aspect is yet again missing. Hence, it can 31

ibid.

32

ibid.

33

O S Kerr, ‘Cybercrime Scope: Interpreting “Access” and “Authorization” in Computer Misuse Statutes’ (2003) 78 NYU Law Review 1596.

34

Pritchett (n 12).

35

Kerr (n 34).

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be conceded that the element of ‘violence’ is missing.

The second element entails that piracy acts are executed on the ‘high seas’.36 Determining the location of the hacking of a USV’s electronic information system is somewhat a thorny issue. On the one hand, it could be argued that a land-based computer system hacking a vessel located on the high seas, could possibly fulfil the element of being on the high seas. On the other hand, it could be argued that a target originating from a land-based computer system cannot be considered piracy as the action would have originated from land, even though the effects are felt on the high seas.37 Thus, it will be interesting to see the manner in which the legislators would incorporate this element within the definition of piracy.

Another element found within the definition of piracy is that the act of piracy has to be committed by ‘crew or the passengers of a private ship’.38 At face value this means that the offence of piracy can only by committed by pirates physically on board a sea vessel. Undoubtedly, a person intending to hack a USV’s electronic information system does not need to be physically on board a sea vessel when launching the attack, but rather in a position where access to the communicative link can be achieved.39 This element is considerably absent.

4. Cyber Crime Piracy: High-Tech battles against modern pirates?

Indisputably, USVs will use means of communication with their land-based owners for control and operation of the assigned trading route.40 Unfortunately, communication connections are still exposed 36

UNCLOS s 101(a)(i).

37

Pritchett (n 12).

38

UNCLOS s 101(a).

39

P Pritchett (n 12).

40

ibid.

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to a high level of vulnerability in this day and age.41 Potential susceptibility of USV’s system to cyber-attacks by different adversaries, who illegally manipulate or exploit systems create a strong concern.42 This is justified by the breach in cyber-security evidenced recently on autonomous road vehicles’ system and the reported attacks that took out major sites such as Netflix and Twitter, telecom companies in Libya and domestic routers in Germany.

Unluckily, cybercrime has also been reported in the shipping industry. Reports include a successful hacking operation causing an oil platform located off the African coast to list to its side, forcing it into temporary shutdown. Another hacker lucratively infiltrated a port system to locate specific containers loaded with illegal drugs and further remove them undetected.43 In another incident, Captain Andrew Kinsey, Senior Marine Risk Consultant at AGCS stated; Pirates appear to have access to refineries and are able to find out who is carrying the fuel they want. Then they just need to look at the Automatic Identification System (AIS) information for the ship and they can go alongside, overpower the crew, take over the ship, disable the communications, siphon off the cargo and leave the ship adrift.44 These incidents create a worrying turn in the shipping industry, where hackers successfully abuse of lacunae in the cybercrime world.

Recognising the threat to the safety of the maritime industry, the In41

A Greenberg, ‘Hackers Remotely Kill a Jeep on the High-way’ (Wired, 21 July 2015) <http:// www.wired.com/2015/07/hackers-remotely-kill-jeephighway/ > accessed 18 October 2016; E Weise, ‘FBI Computer Expert Briefly Made Plane Fly Sideways’ (USA Today, 16 May 2015) <http://www.usatoday.com/story/tech/2015/05/16/chris-robertsfbi-plane-hack-one-worldlabs/27448335/> accessed 18 October 2016.

42

Rolls Royce, ‘Remote and Autonomous Ships: The Next Step’ (AAWA Position Paper, 2016) <http://www.rolls-royce.com/~/media/Files/R/Rolls-Royce/documents/customers/marine/ ship-intel/aawa-whitepaper-210616.pdf> accessed 1 March 2017.

43

Allianz, ‘Safety and Shipping Review 2016’ (2016) <http://www.agcs.allianz.com/assets/PDFs/ Reports/AGCS_Safety_Shipping_Review_2016.pdf> accessed 2 March 2017.

44

Ibid.

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ternational Association of Classification Societies (IACS) has drafted a framework in support of current work being conducted by the IMO regarding cyber-system security.45 From the ship operator’s perspective, shipping organisations such as BIMCO and INTERTANKO, have presented a set of guidelines aiming to prevent major safety and commercial issues that could erupt as a result of cybercrime within the shipping industry.46 However, the problem goes further than this. In March 2017, the National Cyber Centre (NCSC) and the National Crime Agency (NCA) have warned that criminals are exploiting a cyber weakness on ‘a scale and boldness not seen before’.47 In a joint report, they stated that ransomware-software is on the rise. This makes a device or a system unusable until a ransom is paid to the hacker. Predictions are that it will likely attack phone systems; could it be an eye-opener to the maritime industry in the near future?48

5. USVs, Piracy and Insurance: a new niche for insurers?

The outcome of this possibly creates a new niche for insurance companies and Protection and Indemnity Clubs (P&I Clubs). The likelihood of whether insurance companies or P&I clubs are willing to embrace hacking of USV’s electronic system as piracy is still debatable. The reluctance of insurance to cover for cargo on board USVs and the USV itself is even more controversial.

Thus far, all USVs are deemed to be uninsurable, due to the fact

45

International Association of Classification Societies, ‘IACS Council 72 Press Release 14 December 2015’ (2015) <http://www.iacs.org.uk/news/article.aspx?newsid=194> accessed 1 March 2017.

46

ibid.

47

T Cheshire, ‘Ransomware warning for phones, watches and TVs’ (Sky News, 14 March 2017) <http://news.sky.com/story/ransomware-will-attack-phones-watches-and-tvs-report-10801268> accessed 14 March 2017.

48

ibid.

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that USVs are still considered unseaworthy.49 Having said that and assuming that USVs will be classified as seaworthy in the future in order to be able to operate commercially, the issue of insurance will undoubtedly crop up.

Whether a USV is physically attacked or its electronic information system hacked, loss or damage is likely to be suffered either by the ship owner, the cargo interests or both. One such scenario could result in pirates physically attacking a USV and most likely stealing goods on board. Similarly, if the electronic information system is hacked, the USV can be possibly steered onto a different trade route causing a maritime casualty. Both examples exemplify significant loss, damage or both. Hence, USVs used to passing through piracy-prone areas can potentially encourage USV ship owners to push for a new niche of insurance to be born. The problem remains whether such insurance providers are willing to draft an insurance policy including a clause to cover USVs if attacked by pirates.

On the other hand, USVs could present a defensive method by disheartening pirates. Piracy for ransom has provided insurance companies with an expensive new twist on what was a traditional peril.

This means that considerable costs for insurance companies could be avoided with the introduction of USVs. Dr. Bénédicte Sage-Fuller from the MUNIN project unofficially predicted that, ‘there would be no significant increase in insurance premiums for unmanned ships’.50 Captain Rahul Khanna, Global Head of Marine Risk Consulting at AGCS, elucidates that more needs to be done to further educate shipping companies. He explains that shipping is still lagging behind in terms of protection and security. Insurance companies are trying their best to raise the significant amount of awareness and to provide the necessary insurance solutions, as ultimately they bear the risk.

49

T Falkanger and Others, Scandinavian Maritime Law – The Norwegian Perspective (3rd edn, Universitetsforlaget 2011) 5.

50

Segercrantz (n 12).

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6. Conclusion - Are USV’s the Solution, or the cause for additional Legal Problems?

To conclude, the current definition of piracy posed in UNCLOS may correctly satisfy physical attacks of pirates against USVs. This is so, because the element of violence and the performance of the ‘physical’ attack on the high seas could be effortlessly satisfied. Nevertheless, it can be conceded that hacking a USV’s electronic information system cannot be considered as an act of piracy within the scope of UNCLOS, since the elements within the definition of piracy are dissatisfied. With respect to insurance, it is first essential that USVs are classified as seaworthy. Andrew Bardot, executive officer of The International Group of P&I Clubs predicts that once the crew is taken off the vessel, the pirates lose their interest, and even if they manage to get on board the vessel, the vessel can be remotely shut down.51 In other words, the probability is that P&I Clubs and insurance companies will likely come to terms with insuring USVs in case of piracy attacks.

It can be rightfully concluded that the legal concept of piracy within the context of USVs needs to be re-examined. Several inconsistencies still exist. As discussed, the present definition of piracy within UNCLOS can be only applied to the ‘physical’ attack of piracy.

Hacking of the USV’s electronic information system does not seem to fit within the present definition. Some authors agree that instead of attempting to revise existing law to accommodate piracy, a new legal instrument should be drafted specifically for this new class of vessels.52 Conversely, Dr Vincent J G Power at University College Cork predicted, that ‘an entirely new legal regime will not be needed for unmanned ships’.53 The stumbling block of the future introduction of USVs within the commercial industry is that a new form of piracy may arise, which may cause considerable millions worth of damage within this 51

T Falkanger (n 50).

52

Pritchett (n 12).

53

Segercrantz(n 12).

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industry. It appears that the shipping industry still has to overcome the scope and nature of cybercrime. USVs may not be the ultimate solution to piracy as the industry currently portrays. However, one positive certainty that USVs provide, is safety for crew-members who operate within pirate-infested waters. Henceforth, USVs are likely to change the game remarkably for pirates. However, whether USVs are the ultimate solution to piracy, is yet to be seen.

482

Planning Law

Article 469A from a Planning Law perspective Robert Musumeci

Dr Robert Musumeci is a warranted advocate and an architect. He also holds a Masters Degree in Conservation Technology in Masonry Buildings.

He is the founding partner of the architectural firm RMPERITI and prior to being admitted to the Maltese Bar in 2017, he had practiced as an architect since 1998. He is a former chairperson of the Building Industry Consultative Council (BICC) and presently holds the post of a legal/technical advisor on development planning law to the Government of Malta. Dr Musumeci was directly involved in the reforms which led to Malta Environment and Planning Authority’s demerger and the establishment of the new Lands Authority in 2016. Dr Musumeci has published several academic articles related to planning legislation. He was selected by the Faculty of Laws (University of Malta) for the prize of Best Doctor of Laws Thesis Award 2016 for his thesis entitled ‘The Development Planning Act 2016 - A critical Appraisal.’

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1. Introduction – A Legal overview

R

eview of the legality of administrative action is aimed at submitting public authorities to the rule of law and at protecting the rights of individuals in the process. In a demand for judicial review, the Courts seek to establish whether the Public Authority in question exercised its powers within the limits set out by Parliament.1 Differently from cases under appeal, the Courts do not review both the legality and the merits of a case. In fact when it comes to judicial review, the Courts are precluded from ‘substituting their own discretion for that of an authority in which the discretion has been confided’. 2 In other words, judicial review merely focuses on the legality of the particular administrative act without entering into the substantive merits.

This principle was upheld in a number of domestic judgements amongst which, in the relatively recent judgement in the names of Nazzareno Scerri et vs Awtorita’ ta’ Malta dwar l-Ambjent u l-Ippjanar et, 3 wherein the First Hall, Civil Court specifically noted that: L-għan wara kawża ta’ din ix-xorta m’huwiex biex id-diskrezzjoni li jkollha l-awtorita’ pubblika jiġi sostitwit b’dik tal-qorti.4 Interestingly, there was no written legislation regulating judicial review up until the 1980’s, and yet, the Maltese Courts had held that they had the power to review administrative acts,5 particularly when such acts were thought to be in violation of human rights.6 At the 1

Ian Loveland, Constitutional law, administrative law, and human rights: a critical introduction (Oxford University Press2012).

2

Stanley A De Smith and John Maxwell Evans, Judicial Review of Administrative Action (4th edn,Stevens & Sons Limited1980).

3

470/2006Nazzareno Scerri et vs Awtorita’ ta’ Malta dwar l-Ambjent u l-Ippjanar et, First Hall (Civil Court 30 January 2015.

4

ibid.

5

Natalino Caruana De Brincat, ‘A Critical Analysis of the Available Mechanisms of Review of Administrative Acts at Local Government Level’ (LLD thesis, University of Malta 2016).

6

See for example 1/62 Anton Buttigieg vs Onorevoli Paul Borg Olivier, (Court of Appeal) 10

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time, the general rule was to supplement the legislative deficiencies using common law principles.7 This notion was highlighted in the seminal case by the name of Cassar Dessain James vs James Louis Forbes8 presided by the late Chief Justice Sir Arturo Mercieca and was subsequently echoed in a string of other judgements.

The first piece of written legislation dealing with judicial review of the legality of administrative actions was promulgated in 1981. 9 Ironically, the introduction of such legislation came in response to the Blue Sisters judgement 10 which had annulled the Minister’s decision to impose a set of ‘arbitrary’ conditions after the Court held that such decision was deemed ‘unreasonable’. In fact, the Mintoff government sought to reposition itself by introducing Article 742 in the Code of Organization and Civil Procedure, and from that point onwards, the Minister appeared to enjoy greater immunity from the Courts as long as his actions ‘ [did not] exceed the powers conferred by law’, his action was clearly not ‘in violation of an explicit provision of a written law’ and that in his course of action, there was nothing to suggest that ‘the due form or procedure has not been followed in a material respect’ as a result of which ‘substantial prejudice ensued from such nonobservance.’

Fourteen years on, the subsequent Nationalist administration made it a point to revisit Article 74211 which was described as a ‘liġi li biha il- Gvern ipprova jirrestrinġi l-poter tal-Qrati li jindaħlu lillGvern’. Article 469A of Chapter 12 of the Laws of Malta12 was introduced by way of Act XXIV of 1995, providing the judiciary with a wider set of parameters, beyond which an administrative act would January 1964.

7

Ian Refalo, Cases in Administrative Law (2012).

8

538/72Marquis James Cassar Dessain vs James Louis Forbes nomine, (Court of Appeal) 7 January 1935.

9

Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta.

10

675/80 Prim Ministru, Ministru tal-Ġustizzja, Artijiet, Djar u Affarijiet tal-Parlament u tal-Kummissarju ta` l-Art vs Sister Luigi Dunkin bħala Superjura tal-Kongregazzjoni ‘Little Company of Mary’ (Blue Sisters), First Hall (Civil Court) 26 June 1980.

11

Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta

12

Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta, Article 469.

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be declared null and without effect.

2. Article 469A of Chapter 12 of the Laws of Malta Article 469A of Chapter 12 of the Laws of Malta13 provides the following: Saving as is otherwise provided by law, the courts of justice of civil jurisdiction may enquire into the validity of any administrative act or declare such act null, invalid or without effect only in the following cases: (a) where the administrative act is in violation of the Constitution; (b) when the administrative act is ultra vires on any of the following grounds: (i) when such act emanates from a public authority that is not authorised to perform it; or (ii) when a public authority has failed to observe the principles of natural justice or mandatory procedural requirements in performing the administrative act or in its prior deliberations thereon; or (iii) when the administrative act constitutes an abuse of the public authority’s power in that it is done for improper purposes or on the basis of irrelevant considerations; or (iv) when the administrative act is otherwise contrary to law.14 For the purpose of Article 469A15, an ‘administrative act’ is defined as ‘any act’ involving ‘the issuing by a public authority of any 13

ibid.

14

ibid.

15

ibid.

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order, licence, permit, warrant, decision, or a refusal to any demand of a claimant’ provided that such act ‘does not include any measure intended for internal organization or administration within the said authority’.16 From this Article, it not only immediately follows that the ‘administrative act’ should necessarily concern a public authority but such an authority must be acting in its decision-making capacity as was confirmed in J. Galea vs Kmandant tat-Task Force et17 wherein it was stated that: …għandu jkun ovvju, fl-ewwel lok, illi għemil amministrattiv jista’ jkun biss sindakabbli mill-Qrati jekk dan ikun jirrigwarda att deċiżjonali ta’ awtorita’ pubblika li jinvolvi l-ħruġ jew ir-rifjut f’dan il-każ, tal-liċenzja mitluba.18 Undoubtedly, Planning Authority decisions qualify as decisions by a ‘public authority’ for the purpose of Article 469A19 since the Planning Authority derives its public status as a decision-making body under law – namely, the Development Planning Act. 20 Before proceeding further, the individual provisions enshrined in Article 469A21 shall be examined.

3. Acts in violation of the Constitution Sub-article (1)(a) of Article 469Aprovides the possibility for aggrieved individuals to institute actions against a public authority 16

ibid Article 469A (2).

17

VOLUME 82 (1998), PART NO. 2, SECTION , PAGE 541 J. Galea vs Kmandant tat-Task Force, Court of Appeal 5 October 1998.

18

ibid.

19

Code of Organisation and Civil Procedure (n 12).

20

Development Planning Act, Chapter 552 of the Laws of Malta.

21

Code of Organisation and Civil Procedure (n 12).

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where an administrative act ‘…is in violation of the Constitution’.22 Prima facie, this provision appears superfluous due to the fact that sub-article (1)(b)(iv) of the same Article 469A provides an umbrella remedy as to when ‘the administrative act is otherwise contrary to law’. 23 It is worth mentioning that sub-article (1)(a)24 was initially governed by a six month statutory period within which one could potentially challenge an administrative act in breach of the Constitution. A year later, Parliament, however, had removed the said time limits 25 on the pretext that constitutional violations should not be time barred.

Nevertheless, over the years, the Courts have held different interpretations with regard to the provision ‘in violation of the Constitution’ taken in the context of Article 469A.26 For example, the conclusions reached by the First Hall, Civil Court in Raymond Farrugia vs Kummissarju tal-Pulizija27 clearly indicate that reference to the Constitution includes a reference to all acts of public administration in breach of the Maltese Constitution, not least fundamental human rights. This judgement specifically states that: meta l-egħmil amministrattiv jikser il-Kostituzzjoni’ ….. ifisser illi egħmil amministrattiv jista’ jiġi dikjarat null, invalidu u mingħajr effett meta dak l-egħmil jikser il- Kostituzzjoni inkluż b’hekk anke d-disposizzjonijiet dwar drittijiet fundamentali tal-bniedem.28 The Constitutional Court however took a diametrically opposite approach in Christopher Hall et vs Direttur tad-Dipartiment 22

Code of Organisation and Civil Procedure (n 12) article 469A 1(a).

23

Code of Organisation and Civil Procedure (n 12) article 469A (1)(b)(iv).

24

Code of Organisation and Civil Procedure (n 12) article 469A 1(a).

25

Act IV of 1996.

26

Code of Organisation (n 12).

27

5/11/2001 Raymond Farrugia vs Kummissarju tal-Pulizija, First Hall (Constitutional Jurisdiction) 12November 2001. .

28

ibid.

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għall-Akkomodazzjoni Soċjali et29 when in its conclusions it held that sub-article (1)(a) of Article 469A30 refers to acts in violation of the Constitution with the exception of those acts linked to fundamental human rights. The honourable Court in this case held that: ….is-subartikolu 1(a) ta’ l-Artikolu 469A tal-Kap. 12… jirreferi għal ksur tal-Kostituzzjoni minn għemil amministrattiv li … ma jkunx jammonta għall-ksur, ossia allegat ksur, tad-drittijiet fundamentali kif protetti bl-Artikoli 33 sa 45 tal-istess Kostituzzjoni.31 The author has his reservations with regard to the Court’s assessment in the First Hall judgement quoted above since there is nothing to suggest that fundamental human rights and freedoms are excluded a priori from Article 469A (1)(a).32 It is a well-established legal principle that ubi lex voluit lex dixit, ubi noluit tacuit33 and since in this particular instance no reference has been made at all to the exclusion of fundamental human rights and freedoms from the ambit of the Constitution, the conclusion arrived at by the Constitutional Court is, at best, perplexing and at worse incorrect.

One would have understood the Court’s position better had it argued that plaintiff had an alternative remedy through Article 46(2) of the Constitution34, which specifically grants a right of action to any person who alleges that any one of the fundamental rights and freedoms has been or is likely to be violated. Article 46(2)35 can be taken as being one that absorbs the right of redress capable of being sought 29

1/2003/1 Christopher Hall u b’digriet tat-23 ta’ Ġunju 2003 l-atti ġew trasfużi f’isem Josephine Hall, Alexander Hall u Stephen Hall vs Direttur tad-Dipartiment għall-Akkomodazzjoni Soċjali, l-Onorevoli Prim Ministru u l-Avukat Ġenerali, (Constitutional Court ) 18 September 2009.

30

Code of Organisation and Civil Procedure (n 12).

31

Christopher Hall u b’digriet tat-23 ta’ Ġunju 2003 l-atti ġew trasfużi f’isem Josephine Hall, Alexander Hall u Stephen Hall vs Direttur tad-Dipartiment għall-Akkomodazzjoni Soċjali, l-Onorevoli Prim Ministru u l-Avukat Ġenerali (n 29).

32

Code of Organisation and Civil Procedure (n 12).

33

Roughly translated as ‘what the law wants, it says, what the law does not want, it does not say’.

34

Constitution of Malta, Article 46(2).

35

ibid.

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through Article 469A36, given that Article 469A(4)37 makes it clear that recourse to this Article should be as a last resort if redress cannot be acquired through other specific laws.

4. Administrative Acts that are ultra vires The legal doctrine of ultra vires, as used with reference to administrative acts, implies that discretionary powers must not be used for any other purpose except for those for which they were granted by the legislative. As Barnett rightly opines, ‘the ultra vires principle is consistent with the principle of Parliamentary Sovereignty.’ 38 As illustrated above, sub-article (1)(b) of Article 469A39 lists four instances when an administrative act is deemed to be considered ‘ultra vires’.

The following sub sections shall deal with the four grounds in more detail.

4.1 ‘Not authorized to perform it’ This ground refers to those instances when a Public Authority acts beyond its jurisdictional remit provided in the enabling Parliamentary Act.40 Essentially, this provision is aimed at ensuring that public authorities have not acted beyond the parameters set out in the parent Act. Despite enjoying a considerable degree of discretion, administrative authorities are therefore not empowered to do what ‘they like’ simply because they are ‘minded to do so’.41 For example, a Local Council would be in breach of this sub-article were it to issue a development planning permit for the simple reason that such powers 36

Code of Organisation and Civil Procedure (n 12).

37

Code of Organisation and Civil Procedure (n 12) article 469A(4).

38

Hilaire Barnett, Constitutional & Administrative Law (10th edn, Routledge 2013).

39

Code of Organisation and Civil Procedure (n 12).

40

Code of Organisation and Civil Procedure (n 12) Article 469A(1)(b)(i).

41

William Wade and C.F. Forsyth, Administrative Law (5th edn , Clarendon Press Oxford 1982.

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are vested within the Planning Authority.

4.2 ‘Non observance of Natural Justice or Mandatory Procedural Requirements’ The second ground for judicial review concerns ‘natural justice’ and ‘mandatory procedural requirements’, such considerations being held distinct from each other.42 In other words, the procedural rules that are expressly laid down in the legislative instrument should be pursued even where the objective of such procedures does not involve any denial of natural justice.

Let us take planning applications as an example. The Planning Authority would be in breach of a mandatory procedural requirement dictated by the Development Planning Act43, where a decision on a planning application had to be taken in the absence of a development application report prepared by a case officer . This is different from not following an established procedural practice which is not expressly required by law. For example, as of recent, the Planning Authority has decided to inform neighboring residents of any prospective development in their vicinity by sending a written notification notwithstanding there is no such obligation at law. Should the Authority decide to refrain from such practice, it may not be held into account on the basis of breaching a mandatory procedural requirement.

As to ‘the principles of natural justice’, the notions of ‘audi alteram partem’,44 ‘nemo iudex in causa propria’45 and the ‘duty to give reasons’ immediately come to mind.

If we had to take planning legislation as an example, ‘audi alteram partem’ translates to having all parties to a planning application, namely applicants and objectors, being afforded ‘a fair hearing’. In 42

Code of Organisation and Civil Procedure (n 12) Article 469A(1)(b)(ii).

43

Chapter 552 of the Laws of Malta

44

Roughly translated as ‘no one is to be judged by a court without being heard’.

45

Roughly translated as ‘no one is to be a judge in his own cause’.

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practice, this means that both applicants and objectors in a planning application should be informed of all developments and given an opportunity to make adequate representations. Incidentally, these obligations are clearly set out in the Development Planning Act. Likewise, the ‘nemo iudex in causa propria’ principle is equally enshrined in the Development Planning Act which imposes an obligation on ‘any member of the Authority, or a member of the staff of the Authority, or a consultant, advisor or other person engaged by the Authority’ who has ‘any interest in any matter which falls to be considered by the Authority’ to disclose his or her interest to the Executive Council or the Planning Board immediately upon becoming aware of such conflict.46 The Development Act further provides that such member must ensure not to influence the application and the decision process by not taking part ‘in any consideration of such matter’, nor attending or participating on such matters.47 In addition, the Development Planning Act specifically an obligation on the Authority to ‘give reasons’ for any of its decisions following planning applications, so much so that Article 72(1) of the Development Planning Act provides that ‘the Planning Board shall give specific reasons for any refusal or for any particular conditions that may have been imposed.’ 48

4.3 Abuse of Public Authority’s power The third subsection under which the Court may also undertake judicial review concerns abuse resulting from the authority’s abuse of power ‘done for improper purposes on the basis of irrelevant considerations’.49 In this case, the Court assumes a more subjective role due to the fact that there is no single definition as to what amounts to ‘improper purpose’ and ‘unreasonableness’. In the context of planning 46

Development Planning Act, Chapter 552 of the Laws of Malta, Article 13.

47

ibid.

48

ibid article 72(1).

49

Code of Organisation and Civil Procedure (n 12) Article 469A 1(b)(ii).

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legislation, the Planning Authority may, in theory, order an applicant to install platinum apertures since ‘in the granting of a development permission, the Planning Board shall be entitled to impose such conditions which it may deem appropriate.’ 50 But would such a condition be deemed reasonable? To take another example, the Planning Authority may impose an administrative fine up to two thousand euro (€2,000) each day, in the case where an infringement persists.

51 Would it be reasonable for the Authority were it to impose such a hefty administrative fine if the infringement is of a minor range?

4.4 ‘Otherwise contrary to the law’ The fourth and last ground is a ‘clausola lenzuolo’ whereby the legislator wanted to ensure that public authorities do not resort to any behaviour which is prohibited by statute, though not being in breach of the first three grounds.

4.5 Factors limiting the application of Article 469A It is important to stress that, with the exception of acts in breach of the Constitution, ‘an action to impugn an administrative act’ under Article 469A must be instituted ‘within a period of six months from the date when the interested person becomes aware or could have become aware of such an administrative act, whichever is the earlier’.52 Moreover, recourse under Article 469A is only possible when ‘the mode of contestation or of obtaining redress, with respect to any particular administrative act before a court or tribunal is not provided for in any other law.’ 53 Having said that, a number of Court judgements maintained that the said proviso should not be given a restrictive interpretation, highlighting that jurisdiction should only 50

Development Planning Act (n 42). article 72(1)(f).

51

Development Planning Act (n 42) article 106(3)(b).

52

Code of Organisation and Civil Procedure (n 12) article 469A (3)(1)(b).

53

Code of Organisation and Civil Procedure (n 12) article 469A (4).

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be declined if the Court is satisfied that a practical and effective remedy is available before another Court or Tribunal. This principle was clearly highlighted in Bunker Fuel Oil Company Limited et vs Paul Gauci et54 and in a string of later judgements.55 In the Bunker Fuel Oil judgement, the Court’s conclusions were as follows: Fil-fehma tal-Qorti, dan is-subartikolu (4) ta’ l-Artikolu 469A, biex jiġi interpretat ġustament, m’għandux jingħata interpretazzjoni restrittiva. L-esklużjoni tal-ġurisdizzjoni tal-Qorti, biex tistħarreġ l-għemil amministrattiv, tkun ġustifikata biss jekk il-Qorti tkun sodisfatta li, fil-prattika, persuna kellha rimedju effikaċi u adegwat verament disponibbli għaliha u hija irraġonevolment ma utilizzatx tali proċeduri disponibbli. 56 With regard to planning legislation, a ‘rimedju effikaċi’ is prima facie available through the Environment and Planning Review Tribunal57 (previously, the Planning Appeals Board), which was specifically set up under Chapter 551 of the Laws of Malta58 to hear and determine appeals (in terms of law and fact) from Planning Authority decisions listed under Article 11 of the EPRT Act.59 Although the jurisdiction of the Tribunal was widened to include decisions of the Sanitary Engineer (taken during the course of a planning application) 60 as well as decisions concerning changes in alignment under a planning control application, it is no longer possible to claim a right to appeal ‘any mat54

Please kindly insert reference number here Bunker Fuel Oil Company Limited et vs Paul Gauci u Planning Authority, (First Hall) 6 May 1998.

55

1447/1996/1 Joseph Muscat et vs Chairman tal-Awtorita’ tad-Djar, (Court of Appeal) 28t January 2004 and 1682/99 Dr. Philip Galea et vs Tigne` Development Co. Ltd. Et (First Hall Civil Court) 28 January 2004.

56

Bunker Fuel Oil Company Limited et vs Paul Gauci u Planning Authority (n 53).

57

Hereinafter referred to as EPRT.

58

Environment and Review Tribunal Act, Chapter 551 of the Laws of Malta.

59

ibid Article 11. Article 59(7) of the Environment and Development Planning Act, Chapter 504 of the Laws of Malta also provides that ‘No appeal from a decision concerning a minor modifications application shall lie to the Tribunal’.

60

This is now possible since decision of the Sanitary Engineer Officer is no longer answerable to the General Services Board but the Executive Chairperson.

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ter of development control’ as previously contemplated under Article 41(1) (a) of Chapter 504 of the Laws of Malta61, unless such ‘matter’, of course, is listed under Article 11.62 In practice, this means that third party objectors may no longer lodge an appeal before the Tribunal against a planning decision unless ‘an interested third party’ is invited to submit written representations ‘as established by the Planning Authority in terms of article 71(6) of the Development Planning Act, 2016’ at the outset of the application process. 63 Consequently, an interested third party, despite having a direct, legal, actual, and personal interest, may not lodge an appeal against a development notification order with the Tribunal since the notification process is not open to written public representations. In the case of decisions concerning minor modifications application, the right to appeal such decisions is equally prohibited by way of Regulation 15 (11) of Legal Notice 162 of 2016.64 The only way to challenge development notification orders (in the case of potential objectors) and/ or minor modifications (in the case of both applicants and potential objectors) therefore rests with judicial review under Article 469 A.65

5. Scenarios of judicial review dealt with by the Court in the context of planning legislation Since 1992, the Courts have had occasion to deal with several situations involving judicial review and acts of the Planning Authority.

The Court’s line of reasoning which was adopted in the following scenarios shall be focused upon in the next sections: • Whether a letter is considered to be an administrative act 61

Environment and Planning Development Act (n 57) Article 41(1)(a).

62

ibid Article 11.

63

Environment and Planning Review Tribunal Act(n 57) Article 11(1)(e).

64

Development Planning (Procedure for Applications and their Determination) Regulations, Legal Notice 162 of 2016, Regulation 15(11).

65

Code of Organization and Civil Procedure (n 12).

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and thus subject to judicial review; • Whether a Local Council can institute an action of judicial review against the Planning Authority; • Whether an appeal before the Tribunal and judicial review can be sought simultaneously; • Whether a complainant who fails to register an objection with the Planning Authority may seek redress under judicial review; • Whether the Tribunal is authorized to conduct a judicial review; • Whether allegations of ‘different treatment’ may be sought under Article 469A;66 • Whether the Authority may be sued for damages under Article 469A;67 • Whether decisions of the Tribunal may be subjected to judicial review under Article 469A;68 • To what extent may a subsidiary plan be contested under Article 469A;69 • Whether judicial review of a Local Plan is time barred; • Whether a breach of fundamental human rights may be challenged via a request for judicial review.

66

ibid.

67

ibid.

68

ibid.

69

ibid.

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6. The Court’s approach An account of the Court’s reasoning in each of the above mentioned scenarios is given in this section.

Is a clarification letter tantamount to an ‘administrative act’ as contemplated in Article 469A? This issue was dealt with in Jupiter Co. Ltd. et vs Awtorita` ta’ Malta dwar l-Ambjent u l-Ippjanar70.

In this case, the plaintiff company submitted that they had received a letter from the Authority stating that a full development application was required in order to sanction the alleged illegalities. In its submissions, plaintiff contended that the issuance of the said letter was tantamount to an ‘administrative act’ and therefore eligible to be considered for judicial review. The Court however concluded that the contents of the letter were not conducive to a ‘final decision’ and could thus not be seen as being encapsulated in the definition of ‘administrative act’ as intended by Article 469A(2).71 Against this background, the Court rejected plaintiff’s application, stating that: Dik l-ittra ma dderimietx il-kwistjoni jew xi kwistjoni, tant li lill-perit intqal li jekk ried aktar informazzjoni jew xi kjarifikazzjoni ulterjuri, “please do not hesitate to contact the undersigned”. Dik l-ittra kellha aktar forma ta’ parir jew informazzjoni, iżda ma kienetx tekwivali għal ordni jew deċiżjoni.72 In other words, one should see whether the letter contains a decision which may be eventually superseded by another since ‘a decision may be part of a two-tier process, so that an initial determination is superseded by a later one with the effect that the first decision may no longer be challenged’.73 70

112/2004/1Jupiter Co. Ltd. u Veronica Gauci għal kull interess li jista’ jkollha vs Awtorita` ta’ Malta dwar l-Ambjent u l-Ippjanar, (Civil, Superior) 3April 2009.

71

Code of Organisation and Civil Procedure (n 12) Article 469A(2).

72

Jupiter Co.Ltd. u Veronica Gauci vs Awtorita’ ta’ Malta dwar l-Ambjent u l-Ippjanar (n 69).

73

De Smith and others, Judicial Review of Administrative Action (4th edn,Stevens and Sons Ltd 1980).

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In this case, however, the Court did not need to consider whether such letter was an intermediate decision or otherwise since it concluded that it was not a decision of any sort ab initio.

Who can institute an application in terms of Article 469A74 against the Planning Authority? The issue arose in Kunsill Lokali Marsaskala et vs l-Awtorita’ ta’ Malta dwar l-Ambjent u l-Ippjanar et.75 In this case, the issue arose as to whether a local council, which is technically part of the longer arm of central government, albeit once removed through decentralization of power, can institute such proceedings. This in light of the fact that the Court in Kunsill Lokali Marsascala vs Avukat Ġenerali76 had reasoned that under the European Convention Act,77 a local council was precluded from doing so as it was not a non-governmental organization. The reason behind this decision was that had governmental organizations had a locus standi before the Constitutional Court, on human rights issues, it would have led to the absurd conclusion that the state would be giving protection to itself against itself!

The Court, in the formerly mentioned judgement however reasoned that since this was not a matter of constitutional import but merely an administrative one, one could not use the same reasoning as that used by the Constitutional Court for human rights violations.78 What had to be analysed was whether the said local council had the right to sue the authority for procedural or substantive breaches, something that according to the Development Planning Act, Chapter 356, in force at the time, it was considered as having given that a local council was held to be an interested third party in 74

Code of Organisation and Civil Procedure (n 12).

75

336/2007 Kunsill Lokali Marsaskala, Joseph George Sant, Paul Cutajar, Lawrence sive Lorry De Raffaele u b’digriet tal-14 ta’ Marzu 2012 l-atti tal-kawża ġew trasfużi f’isem Peter De Raffaele, Stephen De Raffaele u martu Evelyn De Raffaele, u dan wara l-mewt tal-attur Lawrence sive Lorry De Raffaele fil-mori tal-kawża vs L-Awtorita’ ta’ Malta dwar l-Ambjent u l-Ippjanar, l-Avukat Ġenerali, (Court of Appeal) 29 November 2012.

76

5/2006/, Kunsill Lokali Marsascala vs Avukat Ġnerali (Constitutional Court) 28th June 2012.

77

European Convenion Act, Chapter 319 of the Laws of Malta.

78

Kunsill Lokali Marsaskala vs l-Awtorita’ ta’ Malta dwar l-Ambjent u l-Ippjanar, l-Avukat Ġenerali (n 74).

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virtue of Article 15(1)(d)(iii). Therefore, any person, including a local council, who enjoys a locus standi before the Planning Appeals Board, today, the EPRT, should be declared suited to proceed before a Court on Article 469A79 matters: ….illi l-Kunsill għandu d-drittijiet kollha bħal kull persuna oħra intitolata tagħmel rappreżentazzjonijiet quddiem il-Bord tal-Appelli li għandha funzjoni quasi ġudizjarja u li tingħata d-drittijiet bażiċi li għandhom jiġu segwiti fil-konfront tiegħu fosthom il-prinċipju ta’ ġustizja naturali, u li għalhekk jikkonsegwi b’mod naturali illi jekk dawn id-drittijiet jonqsu jew kif inhu qed jiġi allegat f’dan il-każ, il-proċeduri ma ġewx segwiti, l-istess Kunsill ikollu dritt sħiħ li jitlob lill- Qorti biex tinvestiga n-nuqqas tal-Ġustizzja amministrattiv taħt l-artikolu 469A(i)(b)(iii) kif qed jiġi mitlub mill-Kunsill Lokali f’din l-istanza.80 In effect, this means that any person who has ‘reasoned grounds based on environmental and, or planning considerations to justify the appeal’ 81 should be declared equally suited since Article 22(1) of the EPRT Act specifically states that the doctrine of juridical interest is not applicable for appeals lodged under the said Act.82 Should there be no remedy before the Planning Tribunal all government authorities are thus eligible to challenge the Planning Authority in terms of Article 469A83, despite being in an unusual position in that 469A actions 79

Code of Organisation and Civil Procedure (n 12).

80

170/2002/1 Anthony Bezzina noe vs Diretturi tal-Kuntratti et, Court of Appeal (Civil, Superior) 27 March 2009.

81

Article 22 (1) of the Environment and Planning Review Tribunal Act, Chapter 551 of the Laws of Malta provides as follows: ‘When an appeal has been lodged by an interested third party in terms of this Act, such a person need not prove that he has an interest in that appeal in terms of the doctrine of juridical interest, which doctrine shall not apply to such proceedings, but such a person shall submit reasoned grounds based on environmental and, or planning considerations to justify his appeal.’

82

Environment and Planning Review Tribunal Act (n 57). 8

83

Code of Organisation and Civil Procedure (n 12).

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can be instituted against them. 84 Should the Courts be prevented from assessing a demand for judicial review if an appeal could be lodged before the Environment and Planning Review Tribunal?

In this regard, the Court’s approach appears to have been consistent in keeping with Article 469A (4).85 In John Cauchi vs Chairman Awtorita` tal-Ippjanar86 the Court of Appeal held that judicial review could be sought if no remedy was available elsewhere. In its conclusions, the Court of Appeal reminded the parties that in this case, redress could be sought before a ‘bord speċjali’ (namely, the Planning Appeals Board) which had jurisdiction to delve into the matter under examination: ...ġaladarba l-liġi speċjali kkrejat makkinarju u proċeduri ad hoc biex wieħed ikun jista’ appożitament jikkontesta xi deċiżjoni u/jew xi għemil amministrattiv tal-Awtorita` tal-Ippjanar li bihom iħossu aggravat, allura l- Qorti ordinarja hi svestita, ex-Artikolu 469A(4), milli tistħarreġ ġudizzjarjament id-deċiżjoni amministrattiva, billi dak l-istħarriġ hu riżervat ex-lege lill-Bord speċjali. 87 The same reasoning had likewise been adopted in Soap and Sponge Limited vs Awtorita` tal-Ippjanar et 88 where the Court held: hemm ostakolu sabiex l-azzjoni odjerna bbażżata fuq l-artikolu 469A tista’ tiġi proposta u dan peress skont l-artikolu 469A(4), tali azzjoni ma hijiex proponibbli “meta il-mod ta’ kontestazzjoni jew ta’ ksib ta’ rimedju 84

113/2001/1 Attard Piju u Antida vs Kunsill Lokali Munxar, (Court of Magistrates, Gozo) 29 February 2008.

85

Code of Organisation and Civil Procedure article 469A(4) (n 12).

86

250/1997/1 John Cauchi vs Chairman Awtorita` tal-Ippjanar,(Court of Appeal) 5 October 2001.

87

ibid.

88

Please kindly insert reference number here Sponge Limited vs Awtorita` ta’ l-Ippjanar, (First Hall, Civil Court) 18 May 2000.

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dwar xi att amministrattiv partikolari quddiem qorti jew tribunal, jiġi provdut b’xi liġi oħra.” 89 In Richard Zammit vs Chairman ta’ l-Awtorita` tal-Ippjanar, 90 the Court of Appeal again rejected plaintiff’s application for judicial review over a decision of the Planning Appeals Board since Article 469A prohibited a ‘second review’: kemm-il draba l-ilmenti dwar l-għemil ta’ l-Awtorita` tal-Ippjanar setgħu faċilment jitressqu, (kif fil-fatt sar f’dan il-każ) quddiem l-organi tal-istess Awtorita`, bħala Bord tal-Appell dwar l-Ippjanar, u wkoll il-Qorti ta’ l-Appell, mela allura għandha tapplika ddisposizzjoni tal-artikolu 469A tal-Kap 12.91 What if plaintiff simultaneously files a case before the Tribunal and the Court? The issue was raised in Pietru Pawl Borg et vs l-Awtorita` tal-Ippjanar u l-Kummissarju tal-Pulizija.92 The appellant felt aggrieved by a decision of the Planning Authority, following which he simultaneously filed an appeal before the Planning Appeals Board and an application for judicial review before the First Hall, Civil Court.

The Court presiding over the judicial review rejected plaintiff’s application once ‘the mode of contestation or of obtaining redress, with respect to any particular administrative act before a court or tribunal’ was clearly provided for in ‘any other law’.93 In James Calleja u Carmelo Borg vs Awtorita` tal-Ippjanar94 the Court had similarly held that an appeal and an application for judicial review cannot proceed simultaneously: 89

ibid.

90

99/1998/1 Richard Zammit vs Chairman tal-Awtorita` tal-Ippjanar, (Court of Appeal) 31May 2002.

91

ibid.

92

255/1997/2 Pietru Pawl Borg et vs l- Awtorita` tal--Ippjanar u l-Kummissarju tal-Pulizija, (Court of Appeal) 8 May 2003.

93

ibid.

94

1328/00 James Calleja u Carmelo Borg vs Awtorita` tal-Ippjanar, First Hall (Civil Court) 7 March 2002.

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….sakemm għadu miexi dak il-proċess tal-appell, ma jistax jingħad li dak l-għamil ġie kompletat. U għalhekk, sakemm il-Bord ma jkunx iddispona mill-appell, il-ġurisdizzjoni tal-Qorti li tissindikah ma tistax tiġi invokata.95 What is the legal position of a complainant who fails to register his interest at the onset of the planning application process, as a result of which he loses his right to appeal before the Tribunal? Is he still entitled to demand judicial review before the Courts once redress before the Tribunal is, in practice, not available? In such situations, complainants seem to be prevented from seeking recourse under Article 469A.96 In Kunsill Lokali Birzebbuga vs Awtorita` ta’ Malta dwar l-Ambjent,97, the Council failed to lodge any objection in response to a planning application within the time frames stipulated in the Development Planning Act. Eventually, applicants were given a full development planning permission and the Council filed an application for judicial review in terms of Article 469A98 before the First Hall, Civil Court. The Court maintained that the Council had failed to avail itself of the remedies under the Development Planning Act, on which basis, the Court rejected the Council’s application: L-ilmenti li qed iressqu l-appellanti f’dawn il-proċeduri kienu lmenti li tqegħdu jew setgħu tqegħdu għall-konsiderazzjonijiet tal-Bord tal-Awtorita` u, wara, tal-Bord tal-Appell. Il-fatt li r-rikorrenti naqsu milli jsegwu l-proċedura stabbilita biex ikunu jistgħu jsemmu leħinhom fil-proċess, ma jagħtihomx dritt li jinvokaw il-ġurisdizzjoni ġenerali ta’ dawn il-qrati. 99 The Civil Court, First Hall in some of its deliberations has argued that these principles also apply to those complainants who failed to 95

ibid.

96

Code of Organisation and Civil Procedure (n 12).

97

160/2003 Kunsill Lokali Birżebbuga vs Awtorita` ta’ Malta dwar l-Ambjent, (First Hall, Civil Court) 7 July 2004.

98

Code of Organisation and Civil Procedure (n 12).

99

Kunsill Lokali Birżebbuga vs Awtorita` ta’ Malta dwar l-Ambjent (n 96).

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lodge an appeal against enforcement notices issued by the Authority within the required time frame.100 Is the Environment and Planning Review Tribunal authorised to investigate whether the Planning Authority followed the correct procedures in the exercise of its functions? As held by the Court in a 1996 judgement in the names Il-Perit Austin Attard Montaldo nomine vs Chairman ta’ l-Awtorita` tal- Ippjanar et101, appeals before the Tribunal, previously, the Planning Appeals Board, should also serve as a forum for judicial review: l-appelli statutorji quddiem il-Bord minn deċiżjonijiet tal-Awtorita` jservu ta’ ‘judicial review’ ta’ deċiżjonijiet amministrattivi, ‘intiż biex jipprovdi rimedju liċ-ċittadin minn deċiżjonijiet amministrattivi li jolqtuhom avversament.102 In Richard Zammit vs Chairman tal-Awtorita’ tal-Ippjanar103, the Court reiterated the principle that the Tribunal is not prevented from assessing whether the Authority has, in its conduct, observed the principles of natural justice and mandatory procedural requirements, whilst ensuring that the Authority’s acts were not done in abuse of its powers: Ma hemm xejn li jżomm il-Bord tal-Appell dwar l-Ippjanar meta jkun qiegħed jirrevedi xi deċiżjoni tal-Awtorita’ tal-Ippjanar li jara li l-istess Awtorita’ tkun aġixxiet intra vires, li hija tkun segwiet il-prinċipji tal-ġustizzja naturali, li hija tkun osservat il-ħtiġijiet proċedurali mandatorji imposti mil-liġi, u li hija ma tkunx abbużat mis-setgħat li l-liġi kkonferiet fuqha, billi, per eżemp100

451/2004George Catania (95963 M) u martu Marie Louise Catania (618064 M) għal kull interess li jista’ jkollha u Tarcam Company Ltd. (C 16852). vs L-Awtorita` ta’ Malta dwar l-Ambjent u l-Ippjanar, First Hall (Civil Court)27 June 2007.

101

Il-Perit Austin Attard Montaldo nomine vs Chairman ta’ l-Awtorita`tal-Ippjanar in rapprezentanza tal-istess, Court of Appeal 19 August 1996.

102

ibid.

103

Richard Zammit vs Chairman ta’ l-Awtorita’ tal-Ippjanar (n 89).

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ju, ħadet id-deċiżjoni għall-għanijiet mhux xierqa jew ibbażat l-istess deċiżjoni fuq konsiderazzjonijiet li ma kienux rilevanti għall-każ.104 The conclusions in the Richard Zammit case105 seem to suggest that the Environment and Planning Review Tribunal has the power to investigate whether the Authority acts ‘ultra vires’ insofar as the grounds listed in Article 469A(1)(b)106 are concerned. This matter was formally crystallised into law through the promulgation of EPRT Act, in which a provision was introduced to ensure that an appeal to the Tribunal may also be filed ‘on any ground including: (a) that a material error as to the facts has been made, (b) that there was a material procedural error and (c) that an error of law has been made.’ 107 It should be noted that the aforesaid provision makes specific reference to ‘material procedural errors’ and ‘errors of law’. Through a reading of Article 469A108 it can be safely assumed that ‘an error of law’ includes ‘violations of the Constitution’ as provided in sub-article (1)(a) of the same article.109 On the other hand, it is not as clear whether the phrase ‘material procedural errors’ refers to those instances mentioned in sub-article (1)(b) of the said article.110 Where should allegations of ‘different treatment’ be directed if they are to be entertained at all? In Pietru Pawl Borg u martu Nancy Borg vs l-Awtorita` tal-Ippjanar u l-Kummissarju tal-Pulizija111 the plaintiff explained that his boathouse was built together with other boathouses before the Planning Authority was set up in 1992. The plaintiff alleged that the Authority had ordered to demolish his structure whereas no similar orders were directed to the other owners.

104

ibid.

105

Richard Zammit vs Chairman tal-Awtorita’ tal-Ippjanar (n 102).

106

Code of Organisation and Civil Procedure (n 12) Article 469A(1)(b).

107

Environment and Planning Review Tribunal Act (n 57) article 11(3).

108

Code of Organization and Civil Procedure (n 12).

109

Code of Organisation and Civil Procedure (n 12) article 469A(1)(a).

110

Code of Organisation and Civil Procedure (n 12) article 469A(1)(b).

111

255/1997/2Pietru Pawl Borg u martu Nancy Borg vs L-Awtorita` tal-Ippjanar u l-Kummissarju tal-Pulizija, 8 May 2003.

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Plaintiff contended that he was being treated differently and insisted that ‘the Planning Authority has the moral duty to act in the same manner with other owners of boat-houses....’ and that: kemm-il darba toħrog xi ordni mill-Awtorita` tal-Ippjanar għat-twaqqiegħ tal-kostruzzjoni tal-appellant, u din tiġi nfurzata ikun hemm għemil amministrattiv li jikkostitwixxi abbuż tas-setgħa tal-awtorita` pubblika billi dan ikun qed isir għall- għanijiet mhux xierqa jew jissejjes fuq kunsiderazzjonijiet mhux rilevanti...112 The Honourable Court of first instance was of the opinion that the Planning Appeals Board decision in question was capable of being taken cognisance of before the ordinary civil Courts even though the matter had been seen to by the said board after having been met by an almost identical plea, citing jurisprudence which it believed showed a widening of the criteria when such instances were permissible. The Court of Appeal was of a completely different opinion holding that the Court of First Instance had misinterpreted the relevant jurisprudence completely. It therefore decided that the Civil Court, First Hall should have never claimed it had jurisdiction to decide the matter.

The Court of Appeal, however, did not brush the matter aside and held that cases of ‘different treatment’ were indeed entertainable before the Planning Appeals Board, adding that it had already pronounced itself on a similar matter in the case of Alex Montanaro nomine vs iI-Kummissjoni għall-Kontroll tal-Iżvilupp113 handed down on the 9 February 2001. The case in question concerned allegations that development in the area already existed thus giving weight to considerations not strictly within the ambit of one’s application or contested decision. The Court stated that this was something to be taken into consideration albeit: unikament fl-ambitu ta’ konsiderazzjonijiet tal-ippjanar, u ċioe’, biex jaraw jekk, tenut kont tal-iżvilupp 112

ibid.

113

215/1998/1 Alex Montanaro nomine vs Kummissjoni għall-Kontroll tal-Iżvilupp, (Civil, Superior)9 February..

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attwali fl-inħawi tas-sit in kwistjoni, ikunx ġust u sewwa li l-permess mitlub jiġ[i] akkordat’. 114 From the aforesaid conclusions, it was held to be within the Tribunal’s legal remit to look into allegations of ‘different treatment’, which the Court seemed to evaluate under the notion of abuse of power in Article 469A(4), that is, an administrative act constituting: an abuse of the public authority’s power in that it is done for improper purposes or on the basis of irrelevant considerations.115 Is it possible to seek the Authority for financial compensation under Article 469A? In Albert u Maria Dolores sive Doris Satariano vs Awtorita` tal-Ippjanar116, plaintiffs instituted a case of judicial review alleging that the Authority had acted unreasonably and was thus responsible for having damaged parts of their Dingli property during a direct action. After going through the evidence, the Court found in favour of the plaintiffs. After highlighting that public Authorities are not immune to tortuous responsibility, the Court ordered the Authority to compensate the plaintiffs for the damages that had been caused: Dwar dan lanqas kien hemm bżonn l- Artikolu 469(A) tal-Kap. 12 biex irendi l-Awtorita’ responsabbli għaliex hija ma għandha ebda immunita mill-artikoli tal-Kodiċi Ċivili li jirrigwardjaw ir-responsabbilita’ għad-danni ta’ min jaġixxi oltre d-drittijiet tiegħu.117 Is a decision of the Tribunal an ‘administrative act’ issued by a Public Authority as required under Article 469A? The Court had the opportunity to delve into such matter in a number of judgements both at first instance as well as at appeals stage. The recurrent line of 114

ibid.

115

Code of Organisation and Civil Procedure(n 12)article 469A (4).

116

1721/2001/1 Albert u Maria Dolores sive Doris Satariano vs Awtorita` tal-Ippjanar, (Court of Appeal)28March 2014 .

117

ibid.

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thought throughout most of the said judgements was that although it made much sense to consider Article 469A(4)118 as applicable in cases where the Planning Appeals Board had jurisdiction, the same could not be argued when the administrative action complained of emanated from the administrative procedures adopted by the Planning Appeals Board itself, more specifically when the principles of natural justice were considered as not having been adhered to. This for the obvious reason that the said board would not have been in a position to assess its own wrongdoing. The previously mentioned case of Kunsill Lokali Marsaskala et vs L-Awtorita’ ta’ Malta dwar l-Ambjent u l-Ippjanar et119 is one of the more recent judgements which went up to appeals stage, according to which it was held that a decision of the Tribunal may also be subjected to judicial review in terms of Article 469A120 before the First Hall, Civil Court.

In Richard Zammit vs Chairman ta’ l-Awtorita’ ta’ l-Ippjanar,121 the Court reiterated the above reasoning and came to the conclusion that the Planning Appeals Board was not immune to judicial review before the Courts: Fil-fehma tal-Qorti, anke l-istess Bord tal-Appell dwar l-Ippjanar hu soġġett li josserva huwa stess fis-smiegħ tal-appelli quddiemu, n-nozzjonijiet li janimaw l-imsemmi subartikolu (1) tal-artikolu 469A. Għalhekk, jekk jirriżulta li l-Bord, fid-deċiżjoni tiegħu jew fis-smiegħ tal-appell ma jkunx osserva dawk in-nozzjonijiet xorta waħda l-Qrati ordinarji jibqagħlhom il-ġurisdizzjoni li jistħarrġu ġudizzjarjament l-għemil ta’ dak il-Bord tal-Appell dwar l-Ippjanar fit-termini tal-artiklu 469A tal-Kap.12. Fi kliem ieħor, l-għemil u/jew id-deċiżjonijiet tal-Bord imsemmi, fil-każijiet kongruwi, jistgħu jkunu 118

Code of Organisation and Civil Procedure (n 12) Article 469(4).

119

Kunsill Lokali Marsaskala vs L-Awtorita’ ta’ Malta dwar l-Ambjent u l-Ippjanar, l-Avukat Ġenerali (n 74). .

120

Code of Organisation and Civil Procedure (n 12).

121

Richard Zammit vs Chairman tal-Awtorita’ tal-Ippjanar (n 102).

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soġġetti għall-‘judicial review’.122 Likewise, in James Calleja u Carmelo Borg vs Awtorita` tal-Ippjanar123, the Court was of exactly the same opinion but went one step further in making its argument, stating that: Jekk dan il-prinċipju japplika wkoll fejn il-liġi speċjali tiprovdi li ma jkunx hemm appell minn deċiżjoni ta’ tali korp, kemm għandu għaliex japplika iżjed meta f’dan ilkaż il-liġi tagħti jedd ta’ appell lill-Qrati ordinajri minn deċiżjoni tal-Bord.124 The conclusions reached in these judgements raise more questions than answers. First and foremost, it is questionable whether the Tribunal, which is a quasi-judicial body, falls within the ambit of Article 469A given that it is not technically part of the ‘Government of Malta, including its Ministries and departments, local authorities and any body corporate established by law.’ 125 Indeed, the members of the Tribunal are independent from the Government of Malta, so much so that in the exercise of their functions, ‘the Chairperson and the members of the Tribunal shall not be subject to the control or direction of any other person or authority’.126 Secondly, even under previous legislations, both the appellant and the Authority could appeal the decision of the Tribunal before the Court of Appeal (Inferior Jurisdiction) if they felt ‘dissatisfied with any point of law decided by the Tribunal’. 127 This means that a remedy to seek judicial review over a Tribunal decision has always existed.

122

ibid.

123

1328/00 James Calleja u Carmelo Borg vs Awtorita` tal-Ippjanar, First Hall (Civil Court) 7 March 2002 .

124

ibid.

125

Code of Organisation and Civil Procedure (n 12) article 469A.

126

Article 4 (8) of Chapter 551 of the Laws of Malta. This right has been retained in Article 39 of Chapter 551 of the Laws of Malta which states that ‘The decisions of the Tribunal shall be final and no appeal shall lie therefrom, except on a point of law decided by the Tribunal or on any matter relating to an alleged breach of the right of a fair hearing before the Tribunal.’

127

Environment and Development Planning Act(n 57) article 41.

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Is it possible for an individual to demand the Court to subject a subsidiary plan to ‘judicial review’? It is undisputed that a planning policy may not be appealed before the Tribunal since the Tribunal Act makes no provision to such effect. It follows that no remedy to contest a planning policy is elsewhere available. But, is a ‘subsidiary plan’128 considered to be an ‘administrative act’ within the ambit of Article 469A? In Mario Cuomo et vs Ic-“Chairman” in rappreżentanza ta’ l-Awtorità ta’ l- Ippjanar et129 the plaintiffs felt aggrieved by the fact that the a site in their neighbourhood which was located outside the development zone was included for development as part of a rationalization process initiated by Cabinet. The amended boundaries were approved by Parliament following a public consultation process conducted by the Authority. Plaintiffs instituted a case for judicial review against the Planning Authority, alleging that there was no sufficient physical commitment to justify the inclusion. Plaintiffs asked the First Hall, Civil Court to declare the actions of the Authority as ‘aġir arbitrarju, abbużiv u illegali’ and nullify the approved scheme. Following a preliminary plea raised by the Authority, the First Hall Civil Court noted that the Planning Authority was deemed to have no legitimate interest since the revised development boundary scheme was approved by Parliament. The Authority was thus declared non-suited and the application was rejected: Din il-Qorti tqis li l-mozzjoni approvata mill-Kamra tad-Deputati għar-Reviżjoni Parzjali tal-Pjan ta’ Struttura għall-Gżejjer Maltin ma tistax titiqes li taqa’ taħt il-parametri li għalihom jipprovdi l-Art. 469A tal-Kap. 12 tal-Liġijiet ta’ Malta. Inoltre, ġaladarba l-Awtorità tal-Ippjanar fil-kuntest, minkejja s-sehem tagħha fit-tfassil tal-proposti bidliet, ma tieħu ebda deċiżjoni aħħarija u finalment tesegwixxi biss dak li fil-fatt japprova l-leġiżlatur f’dan il-kuntest, għandha tintlaqa’ l-eċċezzjoni tagħha li 128

Definition of ‘subsidiary plans’ includes subject plans, local plans, action plans or management plans and development briefs.

129

937/06 Mario Cuomo et vs Ic-“Chairman” in rappreżentanza tal-Awtorità tal- Ippjanar et, First Hall (Civil Court) 8 January 2015.

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m’hijiex leġittimu kontradittur fil-kawża.’130 Following the same reasoning, the situation was held to be different when the Planning Authority was held to have been the one taking a decision that effected plaintiff. In Falcon Investments Limited vs Awtorita’ ta’ Malta dwar l-Ambjent u l-Ippjanar et131 the plaintiff company alleged that the allowable building height limitation relative to their property was reduced to the equivalent of two floors and a semi-basement without prior warning. During Court proceedings, an Authority official testified that the approved changes were not shown in the draft Local Plan that was open for public consultation. In this case, the Court held that, in the formulation of a subsidiary plan, the Authority was legally obliged to ‘make known to the public the matters it intends to take into consideration and shall provide opportunities for individuals and organisations to make representations to the Authority’.132 In this case, it was evident that the changes were effected without the public’s prior knowledge. Although the Court expressed that it had a ‘dubju serju’ whether a ‘pjan lokali jaqa’ fid-definizzjoni ta’ “egħmil amministrattiv” (Artikolu 469A tal-Kap. 12)’, it concluded that it had jurisdiction to investigate whether the Authority had followed the correct procedures prior to the eventual publication of the Local Plan: … l-uniku rimedju li għandha l-attriċi huma dawn il-proċeduri, jekk ma titħajjarx toqgħod tistenna sakemm l-Awtorita’ konvenuta tirrevedi l-pjan lokali għaż-żona fejn hemm il-proprjeta’.133 In Malcolm Mallia et vs Awtorita ta’ Malta dwar l-Ambjent u l-Ippjanar et 134 plaintiff alleged that the Authority had initiated a 130

ibid.

131

1198/11 Falcon Investments Limited vs Awtorita’ ta’ Malta dwar l-Ambjent u l-Ippjanar u Avukat Ġenerali, First Hall (Civil Court)17 June 2013.

132

Development Planning Act(n 57) article 27.

133

Falcon Investments Limited vs Awtorita’ ta’ Malta dwar l-Ambjent u l-Ippjanar u Avukat Ġenerali (n 130).

134

562/10 Malcolm Mallia et vs Awtorita ta’ Malta dwar l-Ambjent u l-Ippjanar et, First Hall (Civil Court) 6July 2012 .

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planning control application to amend the Local Plan, as a result of which he would be in no position to develop his property. The plaintiff requested the Court to declare that such actions were abusive and illegal. In reply, the Authority raised a preliminary plea to the effect that the Court had no jurisdiction to interfere in the administrative process surrounding the preparation of subsidiary plans. The plea was however rejected after the Court observed that it held jurisdiction to investigate whether, in the preparation of a subsidiary plan, the Authority had followed the correct procedures: Hu veru li dan l-eżerċizzju jeħtieġ l-approvazzjoni finali tal-Ministru kkonċernat, u l-aħħar kelma hi tiegħu.

Madankollu, fil-fehma tal-qorti dan ma jfissirx li f’dan ilproċess l-Awtorita’ ma tkunx qiegħda tieħu posizzjoni li fiha nnifisha hi deċiżjoni u li biex tasal għaliha trid fl-ewwel lok issegwi l-proċedura kontemplata mil-liġi, fosthom il-konsultazzjoni pubblika.135 In spite of the Court’s declaration that the authority is indeed taking a decision, one here questions whether such decision can be taken to be a final one or otherwise, the difference being a significant one and one which the Court here seems to ignore. Should the issue be whether the authority followed procedure if the final say is the Minister’s? Is the relevant question really this or whether the decision taken here has repercussions on its own merits independent of the Minister’s consent? If the Minister, for instance, is given advice on which to base his final decision, which advice would have been differently given had the right procedure been followed, which decision is the most relevant one to the outcome, the decision by the Planning Authority which for all intents and purposes seems to be the intermediate one, or the Minister’s which is held to be the final decision?

In Joseph Sciriha et vs Awtorita’ ta’ Malta għall-Ambjent u l-Ippjanar et 136 the plaintiff complained that the prospects of his redeveloping the property were made impossible following the publication 135

ibid.

136

127/07 Joseph Sciriha et vs Awtorita’ ta’ Malta ghall- Ambjent u l- Ippjanar et, First Hall (Civil Court) 28 January 2016 ..

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of the Local Plan. The plaintiff alleged that his property was scheduled within the Urban Conservation Area without prior warning and asked the Court to annul the Local Plan. In reply, the Authority countered that it had strictly followed the relative procedures and made sure that the final revisions following a wide public consultation. In its assessment, the Court clarified that the Authority was actively involved in the preparation of the plan. The Court noted that: il-fatt li l-Pjan jiġi approvat permezz ta’ riżoluzzjoni tal-Kamra tar-Rappreżentanti ma jikkonvertihx f’xi proċess leġislattiv.’137 Against this background, the Court said that it had jurisdiction to oversee whether the Authority had observed the principles of natural justice antecedent to the approval of the plan. Notwithstanding there being no imposed legal obligation for the Authority to engage in a second public consultation following publication of the first draft, 138 the Court highlighted that: l-Awtorita` naqset mill-obbligu statutorju tagħha li tinforma lill-pubbliku sewwa sew x’kien bi ħsiebha tagħmel fir-rigward, u għalhekk ċaħditu mill-opportunita` li jressaq il-fehmiet tiegħu, kif irid il-leġiżlatur. L-atturi nqabdu f’din il-morsa bla ma setgħu jkunu jafu x’ġej għalihom.139 Incidentally, the law was eventually amended so that today if any changes are made to the draft of the plan following the public consultation process, the Executive Council is now bound to publish such changes and ‘invite representations on the amendments within a specified period of not less than six weeks’.140 It is interesting to note that the Cuomo judgement concerns a Structure Plan Review which requires Parliament’s endorsement 137

ibid.

138

Development Planning Act (n 57 ) article 27.

139

Joseph Sciriha et vs Awtorita’ ta’ Malta għall- Ambjent u l- Ippjanar et (n 135).

140

Development Planning Act(n 57) article 53(2)(e).

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whereas the Falcon, Mallia and Sciriha judgements concern a subsidiary policy (a Local Plan) which is approved by the Minister.141 Regardless of whether a subsidiary plan is, at the end of the day, endorsed by Parliament or the Minister, the author opines that the Courts should have no qualms about pronouncing judgement on the conduct of the Authority prior to the final publication. For this reason, in the Cuomo case, it would have made more sense for the Court to declare that the Authority was a suited party since its officials were, after all, responsible for the processing of the draft documentation.

Should judicial review of a plan be time barred? An answer to this question was also provided in Falcon Investments Limited vs Awtorita ta’ Malta dwar l-Ambjent u l-Ippjanar et.142 The plaintiffs had alleged that the approved changes were tantamount to a deprivation of the enjoyment of their property, this in breach of their fundamental human rights. For its part, the Authority noted that the Local Plan was promulgated in 2006 whereas the plaintiffs brought their action in 2011. The Authority insisted that the action was time barred in terms of Article 469A (3).143 The Court however considered that a Local Plan is conducive to a law which applies to all citizens alike, rejecting the idea that a Local Plan was equivalent to an ‘administrative act’. Consequently, the Court concluded that the plaintiffs had a right of action for a declaration that the local Plan is invalid on grounds inconsistent with the Constitution:144 …pjan lokali iktar jikkwalifika bħala liġi sussidjara milli att amministrattiv, li wara kollox ma japplikax għall-persuna waħda imma japplika fil-konfront taċ-ċittadin in ġenerali. Il-qorti temmen li l-leġiżlatur 141

Even though, in the Sciriha judgement, the Court was wrong to observe that Local Plans are endorsed by Parliament.

142

1198/11 Falcon Investments Limited vs Awtorita ta’ Malta dwar l-Ambjent u l-Ippjanar u Avukat Generali, (Civil, First Hall) 17 June 2013.

143

Code of Organisation and Civil Procedure (n 12) Article 469A(3).

144

Article 116 of the Constitution of Malta provides as follows: ‘A right of action for a declaration that any law is invalid onany grounds other than inconsistency with the provisions of articles 33 to 45 of this Constitution shall appertain to all persons without distinction and a person bringing such an action shall not be required to show any personal interest in support of his action.’

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tal-poter lill-Awtorita’ sabiex tagħmel il-pjani sussidjarji meqjus ukoll id- dettall li wieħed irid jidħol fih u wkoll l-aspett tekniku. Taħt dan l-aspett il-qorti tqies li l-pjan lokali jista’ jiġi kkontestat taħt l-Artikolu 116 tal-Kostituzzjoni.145 According to the reasoning adopted in the above judgement, it follows that a right of action for a declaration that a Local Plan is invalid on any grounds other than inconsistency with the provisions of Articles 33 to 45 of this Constitution146 shall not only appertain to all persons without distinction without the need for that person to show any personal interest in support of his action but also that such action is not time barred.

Is it possible for a complainant to challenge the Authority on alleged violations of human rights through Article 469A? The issue was dealt in Nazzareno Scerri et vs Awtorita’ ta’ Malta dwar l-Ambjent u l-Ippjanar et147 In this case, the plaintiffs alleged that the Authority’s decision to modify the road alignment through a planning control application had devalued their property, thus amounting to a violation of their fundamental human rights as set out in Article 37 of the Constitution148 and Article 4 of Chapter 319 of the Laws of Malta.149 The Court followed the principles highlighted in the Christopher Hall case150 and went on to conclude that: hemm ġurisprudenza kostanti li taħt l-Artikolu 469A(1)(a) l-attur ma jistax iqajjem ilment ta’ ksur ta’ dritt fundamentali ’, adding that ‘l-Artikolu 469A tal-Kap. 12 m’huwiex jikkontempla l-possibilita’ ta’ azzjoni għal 145

Falcon Investments Limited vs Awtorita ta’ Malta dwar l-Ambjent u l-Ippjanar et (n 141).

146

Constitution of Malta, Articles 33-45.

147

470/06 Nazzareno Scerri et vs Awtorita’ ta’ Malta dwar l-Ambjent u l-Ippjanar et, (Civil, First Hall) 30 January 2015.

148

Constitution of Malta, Article 37.

149

European Convention (n 76).

150

Christopher Hall u b’digriet tat-23 ta’ Ġunju 2003 l-atti ġew trasfużi f’isem Josephine Hall, Alexander Hall u Stephen Hall vs Direttur tad-Dipartiment għall-Akkomodazzjoni Soċjali, l-Onorevoli Prim Ministru u l-Avukat Ġenerali (n 29).

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stħarriġ ta’ għemil amministrattiv minħabba allegat ksur ta’ drittijiet fundamentali, dan l-ilment hu insostenibbli.

In James Calleja u Carmelo Borg vs Awtorita` tal-Ippjanar151 the plaintiffs alleged that the Authority had ‘acted’ without good reason after it decided to subject their property to a second emergency conservation. The plaintiffs maintained that the Authority had acted in violation of their rights as set out in Article 37 of the Maltese Constitution152 and Article 1 of Protocol 1 of the European Convention153 since their property could no longer be developed. The Court was then asked to find the Authority responsible for acting ‘in violation of the Constitution’ in terms of Article 469A (1) (a).154 The Court nonetheless concluded the following: Il-Qorti tqis li kontra l-Awtorita’ mħarrka l-atturi għandhom kemm rimedju ordinarju (bl-appell quddiem il-Qorti tal-Appell) u kif ukoll dak speċjali tal-proċedura kostituzzjonali fejn jista’ jingħata rimedju.155

7. Summary of principles enshrined in Court Judgements From the above quoted judgements, the following legal principles may be singled out: • A document issued by the Authority, the contents of which can be eventually superseded, is not susceptible to judicial review since it is not considered to be a ‘final act’; • Once the plaintiff has potential juridical interest before 151

1328/00 James Calleja u Carmelo Borg vs Awtorita` tal-Ippjanar, (Civil, First Hall) 7 March 2002.

152

Constitution of Malta, Article 37.

153

European Convention Act, Article 1 of Protocol 1.

154

Code of Organisation and Civil Procedure (n 12) Article 469A(1)(a).

155

ibid.

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the Environment and Planning Review Tribunal, he should likewise enjoy a locus standi in terms of Article 469 A156 before the Courts; • An application for judicial review cannot be filed simultaneously with an appeal before the Tribunal; • Complainant should not be entitled to judicial review under Article 469 A157 if a remedy is available before the Environment and Planning Review Tribunal; • Access to judicial review under Article 469 A158 should be denied to a plaintiff once it is possible to register a formal objection with the Planning Authority within the statutory period established in the Development Planning Act; • The Tribunal has jurisdiction to investigate the administrative conduct of the Authority; • Allegations of ‘different treatment’ concerning a decision following a planning application can be dealt with before the Tribunal; • The decisions of the Environment and Planning Review Tribunal may be subject to judicial review under Article 469A159 on matters of procedure and principles of natural justice; • The Authority may be challenged with regards to its conduct pertaining to the preparation of a policy or a subsidiary plan; • Planning policies that are inconsistent with the Consti156

Code of Organisation and Civil Procedure (n 12).

157

Code of Organisation and Civil Procedure (n 12).

158

Code of Organisation and Civil Procedure (n 12).

159

Code of Organisation and Civil Procedure (n 12).

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tution may be challenged before the Courts, which action is not time barred; • An action against the Authority for an alleged violation of human rights may be instituted under Article 46 of the Constitution160 and not through a judicial review;

8. Conclusions - Recommended Action Although the above legal principles should provide a sound backdrop for decision makers, there are a number of legal gaps that should be addressed.

8.1 A level playing field for all development permissions The author is of the opinion that a level playing field should be created for all types of development permissions 161 whereby third parties would be entitled to lodge an appeal before the Tribunal regardless of the nature of the planning application. 162 This would mean that Article 11(1)(e) of the EPRT Act163 should be rethought and the need for interested third parties to submit ‘written representations as established by the Planning Authority in terms of article 71(6) of the Development Planning Act, 2016’ in order to be eligible to contest a planning permission before the Tribunal done away with.

It is hereby being recommended to reword Article 11 of the EPRT 160

Constitution of Malta, Article 46.

161

According to the definitions of Chapter 552 of the Laws of Malta, ’development permission’ means a permission to carry out or retain development granted by the Planning Board or the Planning Commission either in consequence of an application or of a development order; 162

The Development Planning Act (n 57)) defines ‘development permission’ as the ‘permission to carry out or retain development granted by the Planning Board or the Planning Commission either in consequence of an application or of a development order’.

163

Environment and Review Tribunal Act (n 57) Article 11(1)(e).

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Act164 as follows: 11. (1) Subject to the provisions of the Development Planning Act, 2016, the Tribunal shall have jurisdiction to: [...] (e) hear and determine all appeals made by an interested third party: (i) from a decision on an application for development permission; (ii) from a decision on a planning control application relating to a change in alignment; (iii) from a decision on scheduling and conservation orders [...]

Essentially, this would also mean that a full development permission would still be able to be contested before the Tribunal by a third party even if such third party had not expressed an opinion before the decision. A similar situation already subsists in relation to ‘an installation which is subject to an environmental impact assessment (EIA) or an integrated pollution prevention and control (IPPC) permit’ since all persons having ‘sufficient interest’ have access to a review procedure before the Tribunal to challenge the substantive or procedural legality of any decision, act or omission relating to a development arising therefrom. 165 It should however be noted that all planning decisions would need to be published on the website of the Department of Information in order for the public to be made aware of all planning decisions.166 It is therefore recommended to include the following provision to Legal 164

ibid.

165

ibid.

166

For example, at present Development Notification Orders are not published..

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Notice 211 of 2016:167: If the request for the development notification order is accepted

by Authority, the decision shall be published on the website of the Department of Information by not later than fifteen days from the date of such decision. 168

8.2 Judicial review in as far as planning policies are concerned With the exception of the recent Mario Cuomo case169, the Courts have constantly held that they are vested with jurisdiction to enquire the legal validity surrounding administrative processes underpinning the formulation of subsidiary plans. The author agrees with this line of reasoning since the Authority’s administrative conduct should under no circumstance be held immune to judicial review, notwithstanding there being no general consensus as to whether a subsidiary plan qualifies as an administrative act. In other words, the public should be in a well suited position to annul a planning policy, should the legality of the adopted procedure be questioned and found to be lacking.

To counter the current situation and avoid doubts as to what extent, if any, should planning policies be subject to reassessment, the author opines that the Tribunal should be empowered to review the procedural conduct adopted by the Authority in the formulation of a planning policy. In practice, any request to declare a planning policy invalid and without effect due to the Authority’s failing to observe the legal rules would be directly dealt with by the Tribunal instead of the Courts. It is therefore recommended to introduce sub-article 11(e) to Chapter 551170 of the Laws of Malta to read thus: hear and determine all appeals made by the any inter167

Legal Notice 211 of 2016.

168

ibid.

169

Mario Cuomo et vs Ic-“Chairman” in rappreżentanza tal-Awtorità tal- Ippjanar et (n 128).

170

Environment and Review Tribunal Act (n 57) Article 11(1)(e).

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ested party on matters of procedural legality surrounding the formulation of a subsidiary plan or policy.

This is with the aim of rendering planning policies equally eligible to judicial review before the Tribunal insofar as procedural legality surrounding their formulation is concerned.

8.3 Re-appraisal of Article 11 (3) of the Tribunal Act As already seen, Article 11 (3) of the Tribunal Act171 provides that the Planning Tribunal has jurisdiction to look into procedural errors since it has been formally vested with the power to decide on an appeal to the Tribunal that may be filed on any ground ‘including’ a material error as to the facts has been made, a material procedural error as well as an error of law. Although the word ‘including’ in the said Article 11 (3)172 seems to imply that any matter connected with ‘bad procedure’ should fall within the remit of this Article, the author opines that the legislator should elaborate upon what constitutes ‘bad procedure’ and echo the provisions of Article 469A173, making specific reference to those acts performed by the Authority and which it not authorised to perform, instances not in keeping with the principles of natural justice or mandatory procedural requirements as well as action which is done for improper purposes or on the basis of irrelevant considerations.

171

Environment and Review Tribunal Act (n 57) Article 11(3).

172

Environment and Review Tribunal Act (n 57) Article 11(3).

173

Code of Organisation and Civil Procedure (n 12).

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Press Law

Freedom of Speech and the Media: an absolute or derogable human right?

Vincent A. De Gaetano

Vincent A. De Gaetano acquired the Diploma of Notary Public from the Royal University of Malta in 1974 and graduated Doctor of Laws the following year. In 1977 he acquired a Diploma in Criminology from the University of Cambridge. After joining the Attorney General’s Office, he was appointed Assistant Attorney General in 1988 and served as Deputy Attorney General between 1989 and 1994. In 1994 he was appointed judge of the Superior Courts, and became Chief Justice in 2002. In 2010 he joined the European Court of Human Rights as the judge elected in respect of Malta, and in 2015 he was elected as the Vice-President of Section IV of that Court.

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1. Introduction1

I

think it is trite knowledge that we are living in an age where the expression ‘Human Rights’ or, more precisely, ‘Fundamental Human Rights’, has become so popular and is bandied about with such gay abandon, that it risks losing its meaning. Any discussion on freedom of speech – with or without reference to the media – cannot be detached from the essential background underpinning this much vaunted freedom, namely from those ‘Human Rights and Fundamental Freedoms’2found in the European Convention on Human Rights3 – which are considered to be an integral part of human existence.

Yet we often see those rights and freedoms trampled upon, derided or sneered at; or, even worse, simply ignored as politicians, in seeking the popular vote, play upon either the ignorance or the fears of the electorate, or upon both, and go for populist mantras rather than for the truth. One of the first victims, if not invariably the first victim, of the erosion of democracy and of fundamental human rights and freedoms, is freedom of speech. The reason is obvious although sometimes we fail to see it: speech, communication, exchange of information, the ‘free trade of ideas’4 as some would call it: these, alone or in combination, have the power to expose the truth – and that truth may be uncomfortable for some people, especially politicians.

1

This is a revised text of the key-note speech delivered on the 10th of April, 2017 at the Meeting Halll for the European Presidency, The Palace, Valletta (Malta) on the occasion of the 2017 Mini-European Assembly organised by the National Student Travel Foundation (NSTF).

2

To use the correct expression.

3

Hereinafter referred to as the ECHR.

4

I here take the cue from the title of the book A Free Trade of Ideas: The Separate Opinions of Judge Vanni Bonello. See Nicholas Bratza and Micheal O’Boyle (eds), A Free Trade of Ideas: The Separate Opinions of Judge Vanni Bonello (Wolf Legal Publishers 2006). In 2008 the Institute of Maltese Journalists published another collection of Judge Bonello’s separate opinions under the title When Judges Dissent: Separate Opinions of Judge Giovanni Bonello at the European Court of Human Rights, edited by Mario Schiavone. See Giovanni Bonello, When Judges Dissent: Separate Opinions of Judge Giovanni Bonello at the European Court of Human Rights (European Court of Human Rights 2008). By virtue of the date when these books were published, neither contains the two separate opinions (both concurring) by Judge Bonello which I consider to be the most incisive and, possibly also, scathing: I refer to his separate opinions in Lautsi and Others v Italy App no 30814/06 (ECtHR, 18 March 2011), and Al-Skeini and Others v The United Kingdom App no 55721/07 (ECtHR, 7 July 2011).

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At the seventy-first session of the General Assembly of the United Nations in September of 2016, the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, David Kaye, presented a report which began as follows (and I quote verbatim from the first three paragraphs of that report): 1. A journalist investigates corruption at the highest levels of her Government and soon finds herself fighting fictional charges from the cell of a prison.

A critic of a Government is assassinated while buying groceries. Another Government bans its main political opposition party as “extremist,” sending its leaders to jail. A cartoonist faces prosecution under his country’s laws against sedition. A Government shuts down the Internet in advance of public protests, while another uses surveillance to target political opposition. Bloggers are brutally murdered because their work angers religious dogmatists.

Governments criminalize the praising of terrorism even absent incitement to violence. A photojournalist is held without charge. An activist is arrested for a tweet, another for a post, yet another for an e-mail.

2. Each year, usually in collaboration with other mandate holders, I send hundreds of communications to Governments, addressing allegations like those above. In those communications, allegations, not findings of fact, are made yet their large numbers inspire deep concern about the state of freedom of expression, and they serve as the principal basis of the concerns expressed in the present report. It is clear that non-State actors, such as terrorists or criminal gangs, are serious threats to many people exercising their right to expression, but the communications show how policies and laws against terrorism and other criminal activity risk unnecessarily un525

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dermining the media, critical voices and activists. They underscore how Governments and officials conflate calls for public debate with threats to public order, repressing legitimate opposition and undermining accountability.

They show how official or clerical dogma often criminalizes critical discussion of religious ideas or officials. They illustrate the immense and growing threats to an open and secure Internet.

3. In short, there is an all-too-common world view that imagines words as weapons. True, some forms of expression can impose legally cognizable harm, by interfering, for instance, with privacy or equal protection of the law. However, expression may not be restricted lawfully unless a Government can demonstrate the legality of the action and its necessity and proportionality in order to protect a specified legitimate objective. The United Nations has long promoted the idea that expression is fundamental to public participation and debate, accountability, sustainable development and human development, and the exercise of all other rights. Indeed, expression should provoke controversy, reaction and discourse, the development of opinion, critical thinking, even joy, anger or sadness — but not punishment, fear and silence.5

2. Rights, freedoms, and limitations I have chosen to quote extensively from this report6 because in those sentences the author encapsulates what is generally proposed as a dilemma: can freedom of speech or freedom of expression – or most of the other freedoms for that matter, like freedom of religion, 5

David Kaye, ‘Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression’ (United Nations General Assembly, 6 September 2016) <http://www.un.org/ga/search/view_doc.asp?symbol=A/71/373> accessed 11 June 2017.

6

ibid.

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freedom of assembly and of association, or freedom of movement – be curtailed in the interest of a higher good? Now, one of the things that the ECHR makes very clear is that a right or a freedom cannot be used to undermine other rights and freedoms.7 Apart from the specific limitations that each one of the substantive provisions of the ECHR allows – with the exception of the provision banning torture or inhuman or degrading treatment or punishment which provides for no such limitations (Article 3)8 – there is also a general provision which is often forgotten – Article 17 of the ECHR. This is a substantive article which provides that: Nothing in the Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.9 Let me try to paraphrase: except for Article 310, the provisions laying down a right or a freedom provide for the possibility of a derogation or limitation of that right or freedom in very limited and clear circumstances (often termed in the case-law as an ‘interference with’ that right or freedom); notwithstanding that derogation, or rather, the possibility of such a derogation, no State or group or person may go beyond those strictly controlled grounds for derogation, nor may they do anything which strikes at the very essence of any such right or freedom. In a recent case, Delfi AS v Estonia11, decided by the Grand Chamber of the European Court of Human Rights12 on 16 June 2015, the expression ‘aimed at the destruction of any of the rights and free7

This is something which is made clearer in the ECHR than in some other international instruments which deal with similar rights such as the Charter of Fundamental Rights of the European Union.

8

ECHR Article 3.

9

ECHR Article 7.

10

ECHR (n 8).

11

Delfi AS v Estonia App no 64569/09 (ECtHR, 16 June 2015).

12

Hereinafter referred to as the ‘ECtHR’.

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doms set forth herein’ was explained in the context of Article 1013 in the following way: Moreover, the Court has held that speech that is incompatible with the values proclaimed and guaranteed by the Convention is not protected by Article 10 by virtue of Article 17 of the Convention. The examples of such speech examined by the Court have included statements denying the Holocaust, justifying a pro-Nazi policy, linking all Muslims with a grave act of terrorism, or portraying the Jews as the source of evil in Russia (see Lehideux and Isorni v. France, 23 September 1998, §§ 47 and 53, Reports 1998VII; Garaudy v. France (dec.), no. 65831/01, ECHR 2003IX; Norwood v. the United Kingdom (dec.), no. 23131/03, ECHR 2004XI; Witzsch v. Germany (dec.), no. 7485/03, 13 December 2005; and Pavel Ivanov v. Russia (dec.), no. 35222/04, 20 February 2007).14

3. Undermining the values of the Convention M’Bala M’Bala v France15, decided on 20 October 2015, dealt with a well-known comedian, Dieudonné M’Bala M’Bala, who was also engaged in political activities and who was convicted by the French Courts for public insults directed at a person or group of persons on account of their origin or of belonging to a given ethnic community, nation, race or religion, specifically in this case persons of Jewish origin or faith – in effect he was convicted for a hate crime.16 At the end of a show on 26 December 2008 at the ‘Zénith’ in Paris, Dieudonné M’Bala M’Bala invited Robert Faurisson, a French academic who has received a number of convictions in France for his negationist and revisionist opinions, mainly his denial of the existence of gas chambers 13

Article 10 ECHR deals with the right of freedom of expression.

14

Delfi AS v Estonia para 136.

15

M’Bala M’Bala v France App no 25239/13 (ECtHR, 20 October 2015).

16

In summarising the facts of this and other cases, use has been made of the official press releases which are available on the ECtHR’s database HUDOC.

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in concentration camps, to join him on stage to receive a prize for unfrequentability and insolence.17 The prize, which took the form of a three-branched candlestick with an apple on each branch, was awarded to him by an actor wearing what was described as a ‘garment of light’ – a pair of striped pyjamas with a stitched-on yellow star bearing the word ‘Jew’ – thus playing the part of a Jewish deportee in a concentration camp. M’Bala M’Bala claimed that the conviction violated his Article 10 right of freedom of expression.18 The ECtHR found that during the offending scene, the performance could no longer be seen as entertainment but rather resembled a political meeting, which, under the pretext of comedy, promoted negationism through the key position given to Robert Faurisson’s appearance and the degrading portrayal of Jewish deportation victims faced with a man who denied their extermination.

In the Court’s view, this was not a performance which, even if satirical or provocative, fell within the protection of Article 1019, but was in reality, in the circumstances of the case, a demonstration of hatred and anti-Semitism as well as support for Holocaust denial. Disguised as an artistic production, it was in fact as dangerous as a head-on and sudden attack, and provided a platform for an ideology which ran counter to the values of the ECHR. The Court further observed that while Article 1720 had in principle been applied in previous cases to explicit and direct remarks which did not require any interpretation, it was convinced that a blatant display of hatred and anti-Semitism disguised as an artistic production was as dangerous as a head-on and sudden attack. This display, therefore, did not deserve protection under Article 10.21 In conclusion, the ECtHR held that M’Bala M’Bala had sought to deflect Article 1022 from its real purpose by using his right to freedom of expression for ends 17

ibid (n 15)

18

ECHR Article 10.

19

ibid (n 15).

20

ECHR Article 17.

21

ibid (n 15).

22

ibid.

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which were incompatible with the letter and spirit of the ECHR and which, if admitted, would contribute to the destruction of Convention rights and freedoms. His application was dismissed as inadmissible ratione materiae, in other words, as falling outside of the ambit of the protection granted by the ECHR.

4. The conditions For a right or freedom provided for by the ECHR to be limited or restricted – always with the exception of Article 3 which admits of no derogation23 – the ECHR lays down certain principles which must be followed by States in the process of such derogation. First of all, the derogation must be provided for by domestic or internal law, that is by the law of the State concerned. This law must be both clear and accessible. This condition was restated recently by the ECtHR in the following terms: The Court reiterates that the expression ‘prescribed by law’ in the second paragraph of Article 10 requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects (see, among other authorities, Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V, and Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004-I). The level of precision required of domestic legislation – which cannot provide for every eventuality – depends to a considerable degree on the content of the law in question, the field it is designed to cover, and the number and status of those to whom it is addressed (see Centro Europa 7 S.r.l. and Di Stefano v.

Italy [GC], no. 38433/09, § 142, ECHR 2012).24 The derogation (or limitation or interference) must be ‘necessary 23

ECHR (n 8).

24

Orlovskaya Iskra v Russia App no 42911/08 (ECtHR, 21 February 2017) para 98.

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in a democratic society’. What does ‘necessary in a democratic society’25 mean? It means that the derogation, limitation or interference must not be more than is strictly necessary to protect the other rights, values or interests – which I shall mention in a moment. It means, therefore, that the State concerned must prove – in a Maltese context, must prove to the Constitutional Court and, if the case goes further, to the ECtHR – that there is a pressing social need for that interference with the fundamental right, and that a reasonable balance of proportionality has been achieved between the fundamental right in question (in our case, the right of freedom of expression or speech) and the other right or social interest to be protected. The means used by a State so to interfere, and the modalities of the interference, are crucial. Blanket prohibitions, like prohibiting access to the internet,26 or closing down newspapers,27 or fining them to the extent of bankrupting them, are unlikely to pass the test of proportionality.

While the State parties to the ECHR have a certain so called ‘margin of appreciation’, both in assessing the existence of the pressing social need and in determining the proper balance, this margin of appreciation goes hand in hand with European supervision by the ECtHR. Therefore, the ECtHR is empowered to give the final ruling on whether a ‘restriction’ on the right of freedom of speech is reconcilable with the freedom of expression protected by Article 10 of the Convention.28 It must be pointed out that when the issue concerns freedom of expression in a political context, namely the free expression of political opinions, the ECtHR has invariably held that the margin of appreciation of States is very limited.

In the case Orlovskaya Iskra v Russia29, the issue concerned the publication of two article about the then Governor of the Orel Region 25

The expression is used in Articles 8, 9 10 and 11 of the ECHR. In Article 2 a more stringent expression is used: ‘no more than absolutely necessary’.

26

See, for example, Ahmet Yildirim v Turkey App no 3111/10 (ECtHR, 18 December 2012); Kalda v Estonia App no 17429/10 (ECtHR, 19 January 2026).

27

Özgür Gündem v Turkey App no 23144/93 (ECtHR, 16 March 2000); Ürper and Others v Turkey App no 14526/07 et al., (ECtHR, 20 October 2009).

28

ECHR (n 18).

29

Orlovskaya Iskra v Russia (n 24).

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of the Russian Federation, who was also standing for the upcoming elections to the Federation Council on behalf of the United Russia Party (the party of Vladimir Putin). The articles were strongly critical of the Governor and included accusations of corrupt and nepotistic practices, that he had closed down a publicly owned newspaper which had been critical of him, and that he had prosecuted an individual who had spoken against him in public.

The electoral authorities were of the view that these articles had contained elements of electoral campaigning, given that they included negative information about the governor, and that they had created a negative attitude on the part of voters towards the United Russia Party. They considered the articles to be in breach of election law because they had not been paid for by the official campaign fund of any party participating in the campaign. The newspaper was taken to court and fined the equivalent of €1,000. The Third Section of the ECtHR, by six votes to one, found that there had been a violation of Article 10.30 In coming to that conclusion the ECtHR, in connection with the balancing exercise between two conflicting rights, noted as follows: In certain circumstances the rights under Article 10 of the Convention and Article 3 of Protocol No. 1 may come into conflict and it may be considered necessary, in the period preceding or during an election, to place certain restrictions, of a type which would not usually be acceptable, on freedom of expression, in order to secure the ‘free expression of the opinion of the people in the choice of the legislature’. In Mathieu Mohin and Clerfayt, cited above, §§ 52 and 54, the Court recognised that the Contracting States have a wide margin of appreciation with regard to their electoral systems. Referring to this, in Bowman (cited above, § 43) the Court stated that, in striking the balance between the rights under Article 10 of the Convention and Article 3 of Protocol No. 1, the Contracting States have a margin of appreciation, as they 30

ECHR (n 18).

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do generally with regard to their electoral systems.

More recently, in a case concerning advertisement of a political nature, the Court stated that the political nature of the advertisements that were prohibited called for strict scrutiny and a correspondingly circumscribed national margin of appreciation with regard to the need for the restrictions. The Court did not find it appropriate in that case to attach much weight to the various justifications for allowing States a wide margin of appreciation with reference to Article 3 of Protocol No. 1 to the Convention. Otherwise, the application of this provision would be left to the discretion of the Contracting States to a degree that might lead to results incompatible with the privileged position of free political speech under Article 10 of the Convention (see TV Vest AS and Rogaland Pensjonistparti, cited above, §§ 64 and 66).31 Finally the derogation, limitation or interference can be made only for one of the purposes listed in the ECHR itself. With reference to freedom of expression, these purposes are expressly listed in sub-article (2) of Article 11: the interests of national security, territorial integrity or public safety, the prevention of disorder or crime, the protection of health or morals, the protection of the reputation or rights of others, to prevent the disclosure of information received in confidence, and the maintenance of the authority and impartiality of the judiciary. Now these may seem to be lots of grounds upon which freedom of expression may be limited; in reality, however, these grounds have been interpreted quite narrowly by the ECtHR. States must first prove that there is a pressing social need within any one or more of these legitimate aims.32 Secondly, even if there is a pressing social need, the means chosen by the State to cater for that need may not be dispropor-

31

Orlovskaya Iskra v Russia (n 23) para 111.

32

See, for instance, Animal Defenders International v the United Kingdom App no 48876/08 (ECtHR, 22 April 2013), para 100 (with further references).

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tionate.33 Finally, Article 1834 itself prohibits States from using any restrictions or any derogations to fundamental rights or freedoms other than for the purpose for which those restrictions or derogations were made. In other words, to take a hypothetical example, one cannot use the restriction on the right to liberty of a person by placing him or her in detention ostensibly ‘to prevent [the] unauthorised entry into the country’35 when in reality the purpose is to prevent that person from expressing himself or herself against a country’s migration policy, or to hinder that person’s access to a Court; or to use the interference with the correspondence of prisoners – which is necessary to ensure that a person is not planning an escape from prison – to prevent that prisoner from communicating freely and confidentially with his lawyer36.

5. Article 10 v Article 8 As I have already indicated, one ground which justifies interference with the fundamental right of freedom of expression is the protection of the reputation or rights of others. We are here in the realm of libel and defamation, where one right – that of freedom of expression – appears to clash with another fundamental right – that of the reputation of a person – a right that has been held to fall under private life and therefore under Article 8 of the ECHR.37 Here the Courts, both the domestic Courts and the ECtHR, are inevitably called upon to conduct a balancing exercise between two competing rights (whether in the context of Article 1038, if the complaint is that of the publishers, or of Article 839 if the complaint is that of the person who alleges that 33

ibid para 105.

34

ECHR Article 18.

35

ECHR Article 5(1)(f).

36

In connection with a prisoner’s right to correspond with his lawyer, see in particular Golder v the United Kingdom App no 4451/70 (ECtHR, 21 February 1975).

37

ECHR Article 8.

38

ECHR (n 18).

39

ECHR (n 37).

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his or her right to private life has been violated in view of the acquittal of the publishers).

The classic case remains that of Von Hannover v Germany40, although subsequent case-law41 has further refined the criteria to be applied both for the test of necessity (pressing social need) and for proportionality. Princess Caroline von Hannover (daughter of the Prince Ranier III of Monaco and of the actress Grace Kelly) on several occasions unsuccessfully applied to the German Courts for an injunction to stop the further publication of a series of photographs which had appeared in the 1990’s in the German magazines Bunte, Freizeit Revue, and Neue Post. She claimed that they infringed her right to protection of her private life and her right to control the use of her image. In what was then considered to be a landmark judgement, the German Federal Constitutional Court on 15 December 1999 granted the applicant’s injunction regarding the photographs in which she appeared with her children on the ground that the need for protection of their intimacy was greater than that of adults. However, the Constitutional Court considered that the applicant, who was considered to be a contemporary ‘public figure’, had to tolerate the publication of photographs of herself in a public place, even if they showed her in scenes from her daily life rather than engaged in her official duties.

The Constitutional Court referred in that connection to the freedom of the press and to the public’s legitimate interest in knowing how such a person generally behaved in public.

The ECtHR was of a different view. The Strasbourg Court held that there was no doubt that the publication by various German magazines of photographs of the applicant in her daily life, either on her own or with other people, fell within the ambit of her private life.

Article 8 of the ECHR was accordingly applicable. It was therefore necessary to balance protection of the applicant’s private life, as guaranteed by Article 842, against freedom of expression, as guaranteed by 40

Von Hannover v Germany App no 59320/00 (ECtHR, 24 June 2004).

41

See, among others, Couderc and Hachette Filipacchi Associés v France App no 40454/07 (ECtHR, 10 November 2015).

42

ECHR (n 37).

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Article 1043 of the Convention. In connection with the publication of photographs, the ECtHR in the instant case held: Although freedom of expression also extends to the publication of photos, this is an area in which the protection of the rights and reputation of others takes on particular importance. The present case does not concern the dissemination of ‘ideas’, but of images containing very personal or even intimate ‘information’ about an individual. Furthermore, photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution.44 The ECtHR considered that the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photographs and articles made to a debate of general interest: In the cases in which the Court has had to balance the protection of private life against freedom of expression, it has always stressed the contribution made by photos or articles in the press to a debate of general interest (see, as a recent authority, Tammer, cited above, §§ 59 et seq.; News Verlags GmbH & Co. KG v. Austria, no.

31457/96, §§ 52 et seq., ECHR 2000-I; and Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, §§ 33 et seq., 26 February 2002). The Court thus found, in one case, that the use of certain terms in relation to an individual’s private life was not ‘justified by considerations of public concern’ and that those terms did not ‘[bear] on a matter of general importance’ (see Tammer, cited above, § 68) and went on to hold that there had not been a violation of Article 10.

43

ECHR (n 18).

44

Von Hannover v Germany (n 39) para 59.

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In another case, however, the Court attached particular importance to the fact that the subject in question was a news item of ‘major public concern’ and that the published photographs ‘did not disclose any details of [the] private life’ of the person in question (see Krone Verlag GmbH & Co. KG, cited above, § 37) and held that there had been a violation of Article 10.

Similarly, in a recent case concerning the publication by President Mitterrand’s former private doctor of a book containing revelations about the President’s state of health, the Court held that ‘the more time that elapsed, the more the public interest in discussion of the history of President Mitterrand’s two terms of office prevailed over the requirements of protecting the President’s rights with regard to medical confidentiality’ (see Editions Plon v. France, no. 58148/00, § 53, ECHR 2004-IV) and held that there had been a breach of Article 10.45 In the case before it, the photographs showed Caroline von Hannover in scenes from her daily life, and thus engaged in activities of a purely private nature. The ECtHR noted the circumstances in which the photographs had been taken: without the applicant’s knowledge or consent and, in some instances, in secret. It was clear that they made no contribution to a debate of public interest, since the princess exercised no official function or duties, and the photographs and articles related exclusively to details of her private life.

Furthermore, while the general public might have a right to information, including, in special circumstances, on the private life of public figures46, they did not have such a right in this particular instance. The ECtHR considered that the general public did not have a legitimate interest in knowing Caroline von Hannover’s whereabouts or how she behaved generally in her private life even if she appeared in places that could not always be described as secluded and was well known to the public. Even if such a public interest existed, just as 45

ibid para 60.

46

ibid para 64.

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there was a commercial interest for the magazines to publish the photographs and articles, those interests had, in the ECtHR’s view, to yield to the applicant’s right to the effective protection of her private life47.

The ECtHR reiterated the fundamental importance of protecting private life from the point of view of the development of every human being’s personality and said that everyone, including people known to the public, had to have a ’legitimate expectation’ that his or her private life would be protected. The criteria that had been established by the German Courts for distinguishing ‘a figure of contemporary society “par excellence”’ from a ‘relatively public’ figure48 were not sufficient to ensure the effective protection of the applicant’s private life and she should, in the circumstances of the case, have had a ‘legitimate expectation’ that her private life would be protected. The ECtHR found, in conclusion, that the German courts had not struck a fair balance between the competing interests, and consequently there had been a violation of Article 8 of the ECHR. Subsequent case-law49(as I have already hinted)have so far indicated the following criteria for the purpose of the balancing exercise: • whether the publication of an article contributes to a de47

More recently, in Couderc and Hachette Filipacchi Associés v France (n 41) para 101, the ECtHR noted that:

…the public interest cannot be reduced to the public’s thirst for information about the private lives of others, or to an audience’s wish for sensationalism or even voyeurism’. However the Court, in this same judgement, also recognized in para 120 that ‘[t]he fact of exercising a public function or of aspiring to political office necessarily exposes an individual to the attention of his or her fellow citizens, including in areas that come within one’s private life. Accordingly, certain private actions by public figures cannot be regarded as such, given their potential impact in view of the role played by those persons on the political or social scene and the public’s resultant interest in being informed of them. The Court subscribes to the analysis of the Parliamentary Assembly of the Council of Europe, finding that “public figures must recognise that the position they occupy in society – in many cases by choice – automatically entails increased pressure on their privacy” (point 6 of Resolution 1165 (1998), see paragraph 43 above)’.

48

Von Hannover v Germany (n 40) paras 72-75.

49

Von Hannover v Germany (no.2) App nos 40660/08, 60641/08 (ECtHR, 7 February 2012).

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bate of public interest; • the degree of notoriety of the person affected; • the subject of the news report; • the prior conduct of the person (that is the person about whom the article is published) • the content, form, and consequences of the publication; • and as the case may be, the circumstances in which the photographs were taken.

If the balancing exercise is being conducted in view of an application lodged under Article 1050 (that is because the applicant has been held responsible, civilly or criminally, for defamation), the ECtHR will also examine the way in which the information was acquired and its veracity, and the gravity of the penalty imposed on the journalists or publishers.

6. Receiving information No discussion of freedom of expression would be complete without a brief look at the right to receive information. The systematic refusal by the authorities to release information, particularly information relating to public administration and to matters involving the use of public funds, apart from being a sure indication of maladministration if not, indeed, of attempts to cover up breaches of law, also undermines freedom of expression. Both Article 10 of the ECHR and Article 11 of the Charter of Fundamental Rights of the European Union51, make it abundantly clear that there can be no freedom of expression without freedom of information – not only the freedom to impart information but also the freedom to receive it. Very often the refusal by the authorities to disclose certain information is sought to be justified by alleging that such information is ‘commercially sensitive’ or that its divulgation would amount to a breach of data protection. Data protection was in fact invoked in a very recent case decided by the Grand Chamber of the ECtHR on 8 November 2016: Magyar 50

ECHR (n 18).

51

Charter of Fundamental Rights of the European Union [2000] OJ C364/1.

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Helsinki Bizottság v Hungary52.

The case concerned the authorities’ refusal to provide an NGO with information relating to the work of ex officio defence counsel.

The authorities had classified that information as personal data that was not subject to disclosure under Hungarian law. The ECtHR noted that the information requested from the police by the applicant NGO was necessary for it to complete the study on the functioning of the public defenders’ system being conducted by it in its capacity as a non-governmental human-rights organisation, with a view to contributing to discussion on an issue of obvious public interest. Moreover the information was such that it could be compiled, albeit more laboriously and in a time-consuming manner, through other ways, and that therefore no Article 853 issue really arose: The Court also finds that the disclosure of public defenders’ names and the number of their respective appointments would not have subjected them to exposure to a degree surpassing that which they could possibly have foreseen when registering as public defenders (compare and contrast Peck v. the United Kingdom, no. 44647/98, § 62, ECHR 2003I). There is no reason to assume that information about the names of public defenders and their appointments could not be known to the public through other means, such as information contained in lists of legal-aid providers, court hearing schedules and public court hearings, although it is clear that it was not collated at the moment of the survey.

Against this background, the interests invoked by the Government with reference to Article 8 of the Convention are not of such a nature and degree as could warrant engaging the application of this provision and bringing it into play in a balancing exercise against the applicant NGO’s right as protected by paragraph 1 of Ar52

Magyar Helsinki Bizottság v Hungary App no 18030/11 (ECtHR, 8 November 2016).

53

ECHR (n 37).

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ticle 10 (compare and contrast Couderc and Hachette Filipacchi Associés, § 91; Axel Springer AG, § 87, both cited above; Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012, and Perinçek v. Switzerland [GC], no. 27510/08, §§ 227-28, ECHR 2015 (extracts)).54 What, therefore, had to be examined was whether there was any other ‘legitimate aim’ in terms of Article 10(2) of the ECHR, which had to be protected and whether the means chosen by the respondent Government were proportionate. In the ECtHR’s view, by denying the applicant NGO access to the requested information the domestic authorities had impaired the NGO’s exercise of its freedom to receive and impart information, in a manner striking at the very substance of its Article 1055 rights. The ECtHR noted that the subject matter of the survey concerned the efficiency of the public defenders system, an issue that was closely related to the right to a fair hearing, a fundamental right in Hungarian law and a right of paramount importance under the ECHR system. The ECtHR further pointed out that the NGO had wished to explore its theory that the pattern of recurrent appointments of the same lawyers was dysfunctional. It found Hungary to be in breach of Article 10.56

7. Epilogue In the mast mentioned case, crucial to the balancing exercise was the question: are we dealing here with a matter of public interest?

Public interest is, of course, not to be equated with a thing or a subject about which the general public is simply curious. Mere curiosity, morbid or otherwise, is not the yardstick of public interest. Public interest implies much more than that, and includes not only matters of public administration and public finance, but also the proper be54

ibid paras 195-196.

55

ECHR (n 18).

56

ibid.

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haviour of those elected or appointed to administer any one of the three branches of government. As the ECtHR said in an old case, dating from 1986, Lingens v Austria57: Freedom of the press furthermore affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders.

More generally, freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention. The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. No doubt Article 10 para. 2 enables the reputation of others that is to say, of all individuals - to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues.58

57

Lingens v Austria App no 9815/82 (ECtHR, 8 July 1986). Despite this being an old case the principles therein established are still valid to this day and are still applied by the ECtHR. 58

ibid para 42.

542