Category: European Union


Earlier this month Germany recognized the Bitcoin as a “unit of account” when used between private citizens. The German government is willing to recognize the Bitcoin as a valid form of payment between individuals willing to use it, while businesses still need to get approval to use the Bitcoin.

But what is a Bitcoin?  Bitcoin is a new type of online currency.  Bitcoin does not have a central bank, but rather is a peer-to-peer based technology.  Bitcoin is essentially virtual cash with no third party involved in the transaction, unlike sites like Paypal or bank transfers.  Bitcoin creators realize that it is a volatile currency, but maintain that with widespread acceptance this will become less of an issue.

Germany’s recognition of the Bitcoin might present some problems with the European Union, as they have “exclusive competence” over member countries whose currency is the Euro, according to Title I, Article 3 of the TFEU.  Title VIII, Article 119 of the TFEU further asserts that the economic and monetary policy of the European Union “shall include a single currency, the Euro.”

Does Germany effectively circumvent this problem by only recognizing the Bitcoin as a “unit of account” rather than as a currency?  If Germany is going to continue allowing businesses, with government approval, to transact using the Bitcoin it looks more and more like a recognized currency.  Interestingly, Bitcoin creators maintain that government approval is not needed to legitimate Bitcoin transactions.

Turkey’s Ongoing EU Candidacy

In October of 2005, both Turkey and Croatia began the process of becoming member-states in the European Union. Croatia has succeeded and is now the twenty-eighth member of the EU. Turkey, however, remains deadlocked in the preliminary negotiation stages of the candidacy process. Contrasting opinions from the EU and its members (although not entirely unjustified) have led to a complex and controversial candidacy where a lot more appears at stake than simply the addition of another member-state.

Efforts at further integrating Turkey into the European community began as early as 1963 with the signing of the Ankara Agreement. This agreement created a customs union between the European Economic Community and Turkey. Arguments in favor of Turkish accession point to Turkey’s remarkable economic growth over the last four years. Such economic success has presented Turkey as an attractive addition in light of the fact that the EU economy has just endured its longest recession in its fourteen-year history.

However, admission to the EU is not based solely on economic stability. A prospective candidate must demonstrate an adherence to “principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law”. It is amongst these latter criteria where concerns have been raised.

Turkey has drawn considerable criticism from European officials for violations of freedom of association and freedom of religion. Criticism culminated this past summer as the world watched Turkey’s crackdown on public dissenters. In response, Germany blocked the recommencement of Turkey’s EU membership negotiations. Another example of Turkey’s harsh treatment towards political dissent has been its targeting of opposing political parties. According to an article by Ashleigh E. Hebert, published in the Chicago-Kent Journal of International and Comparative Law, the European Commission has consistently noted the frequency and the manner in which dissolution of political parties is sought.

On the other hand, there are others that argue that bringing Turkey into the EU is very thing that would catalyze change in Turkey’s domestic political process. German Foreign Minister Guido Westerwelle and EU Enlargement Commissioner Stefan Fule have both stated publicly that bringing Turkey into the EU would commit them towards democratic reforms more aligned with EU principles. In other words, EU membership for Turkey would alleviate the very concerns that now stand in the way of its EU membership.

Only time will tell whether Turkey’s EU aspirations will one day be accepted or if the door will finally close on Eastern expansion.

The European Union’s New Criminal Policy Against Fraud

The Treaty of Lisbon has established a new tool to protect the financial interests of the European Union. Article 86 of the Treaty on the Functioning of the European Union states

In order to combat crimes affecting the financial interests of the Union, the Council, by means of regulations adopted in accordance with a special legislative procedure, may establish a European Public Prosecutor’s Office from Eurojust…

The European Public Prosecutor’s Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union’s financial interests…It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences.

On July 17th, 2013, the European Commission launched a proposal to improve the protection of the European Union’s financial interests. The proposal sets out specific objectives that the European Union would like to achieve through the establishment of the European Public Prosecutor’s Office (EPPO). One of the objectives is to establish a system that will investigate and prosecute offenses against the financial interests  of the European Union. The  drafters of the proposal also believe that it  will lead to an increase in the number of prosecutions which will lead to more convictions and dependable avenues to recover Union funds through the EPPO for fraud against the EU.

The EPPO will be independent and will work with each Member State’s law enforcement and European law enforcement to ensure an efficient way to deter EU fraud. The body was created because currently only national authorities can investigate any allegations of EU fraud of financial interests which caused the enforcement of the laws to end at the border of each state. Before the creation of the EPPO the entities which had the authority to investigate fraud did not have the ability to conduct criminal investigations. The treaty created the EPPO to authorize criminal convictions against fraud beyond national borders.

The EPPO is going to be led by the European Public Prosecutor (EPP) and will also consist of at least one European Delegated Prosecutor (EDP) for each member state. The types of crimes that will be under the jurisdiction of the EPPO include fraud, corruption, money laundering, and misappropriation. Other crimes that are “inextricably linked” with those crimes may be under the discretion of the EPPO.

It is estimated that 500 million euro  ($600 million) of the EU budget is lost to fraud every year and the EPPO is expected to effectively deal with this problem.

French President Wavering On Action Towards Syria

United States President Barack Obama is not the only international leader facing pressure concerning the proposed attacks on Syria.  French President Francois Hollande is also facing pressure from the French public, French Parliament and the European Union about taking military action against Syria.  Less than a month ago on August 21st, Hollande insisted that urgent action be taken against Syria without waiting for the report from the United Nations.  Yet, this past Friday, September 6th, Hollande now says he wants to await the findings from the United Nations before taking any action.  It appears that European diplomats from the European Union have struck a deal with Hollande.  In exchange for waiting for the United Nations to release its report, the European Union will provide more political support to France if it takes military action against Syria.  It appears that France, like many other European nations, needs the report from the United Nations before it can take any legitimate action against Syria that would be supported by the European Union.  France is just one of the few countries that expressed support for such action, as evident by the fact only ten (10) countries joined the United States in signing onto the G-20 statement (France, the U.K. and Spain were the only European nations).

 

 

The EU Sovereign Debt Crisis: Some Legal Causes

A lot of attention surrounding the EU sovereign debt crisis has ostensibly focused on the allocation of blame to Member-States individually, often leaving out the EU institutions themselves. Responsibility for the current financial situation does in large part reside with the more indebted EU states such as Greece, Spain, Italy, and Ireland. However, there are additional causes that also deserve some of the attention.

The Treaty of the European Union (TEU) created the Eurozone and the European Central Bank (ECB). This final level of economic integration completed the three stage monetary and economic union that began in 1990. As the introduction of the Euro drew near, legitimate concerns were being raised by Member States regarding the economic stability of this new Eurozone. In response, the Stability and Growth Pact (SGP) was adopted in 1997. A specific resolution of the SGP, formally recognized as Council Regulation (EC) No 1467/97, implemented a targeted deficit reduction procedure for member-states that possessed excessive debt, imposing a deficit limit, an overall debt limit, and empowered the ECB to levy fines for non-compliance. However, the SGP has been inadequately enforced since its adoption. Such inadequate enforcement of the SGP may very well underlie the troubling economic situation the EU finds itself in today.

The most striking example of this questionable attitude toward the SGP came in November 2003, when the European Council (EC) chose not to implement recommendations of the European Commission (Commission) pursuant to the national budgets of two Member States. France and Germany’s national did not conform to SGP standards and the EC decided against enforcing SGP deficit reduction procedures previously agreed upon. This controversy eventually arrived at the European Court of Justice (ECJ). The Commission raised the issue that the EC’s failure to enforce the SGP’s debt re-structutring mechanisms against the Member States of Germany and France. Although the ECJ did rule against the EC for its refusal to pursue the SGP’s enforcement mechanisms, the checks and balances between EU institutions have been called into question and the authoritativeness of the SGP has been seriously undermined.

For example, the ECJ stated that the EC “cannot break free from rules laid down by Article 104 TEC and those for which it set forth for itself in Regulation No. 1467/97(SGP)”. Article 104 of the Treaty of the European Community (TEC) codifies the discretion of EC to assess a Member-State’s debt [104(6)], make recommendations on remedying that debt [104(7)], and the procedures for non-compliance [104(9)]. However, the SGP subsequently stipulated additional procedures to be implemented against a Member State in the case of non-compliant debt structure. The ECJ opinion alludes to an interesting question regarding the scope of the relationship between Art 104 TEC and the SGP. Understandably, however, they remind the parties that such a question “had not been presented”.

As Professor Larry Eaker of the American University of Paris has explained, this ECJ decision has potentially created a troubling conflict between the broad discretion afforded the EC in matters of economic and monetary policy, as expressed in Art. 104 TEC, and the monetary restrictions that were envisaged in the SGP. It would seem that the subsequent addendum of the SGP to the TEC would resolve this conflict just as a matter of chronology, but things are often never that simple.

The ECJ’s decision prompted subsequent legislation by the European Commission that intended to correct issues raised in the 2004 Commission v. Council case. But the conflict between the EU institutions and Member States is certain to continue, given the lack of resolution concerning the scope of the SGP.

 

The European Union’s Leadership in the Debate against the Death Penalty

Amnesty International called the year 2012  a “setback” for the fight against the death penalty because the number of death penalties increased in a number of countries.  Specifically, there was a rise in executions in Iraq and nations such as Japan, Gambia, and India resumed executing individuals. The European Union (EU) does not fall within the  “setback” categorization  because the EU is staunchly opposed to the death penalty.

The European Union has led the charge against employing the death penalty for years. Nations that would like to join the EU must disavow the death penalty or they will not be admitted. Europe is the largest region in the world where the death penalty has been abolished. Belarus is the only European country to continue the practice, in spite of the EU’s disapproval.

One of the European Union’s guidelines concerning human rights is to ensure and protect human dignity. The guidelines also include universal abolition of the death penalty and  the EU also asks for the nations that still employ the practice to  restrict the instances that the procedure will be applied.  The European Union’s fight against the death penalty does not end within its borders. The EU is one of the largest donors to the cause against the death penalty being employed across the globe.  The European Union has taken an active approach in intervening in cases for individuals that are being prosecuted by the death penalty and the EU also advocates against the policy to countries that still use the death penalty.

The European Union even has issued formal statements to families who have endured the loss of the person who was executed. For example on August 7th, 2013, the EU High Representative, Catherine Ashton, commented on the execution of Mr. John Ferguson in Florida. Ashton stated

”It was with deep regret that I learnt that Mr. John Ferguson was executed on August 5 in the State of Florida. A plea by Mr Ferguson’s lawyer calling for the execution to be commuted, mentioning a 40-year history of paranoid schizophrenia, was turned down.

The European Union recognizes the serious nature of the crime involved and expresses its sincere sympathy to the surviving family and friends of the victims.

However, the EU opposes the use of capital punishment in all cases and under all circumstances
and calls for a global moratorium as a first step towards its universal abolition. With capital punishment, any miscarriage of justice, from which no legal system is immune, represents an
irreversible loss of human life.”

The EU uses statements like these to illustrate the position that it takes against the implementation of this policy. The EU has steadily advocated against this policy and will do so to ensure that human dignity will remain a principle worth fighting for. 

 

Should the European Union Regulate E-Cigarettes?

The European Parliament will soon vote on a proposal to revise the current Tobacco Products Directive.  The new directive would classify e-cigarettes as medicinal products. The directive would include a ban on menthol and other flavored cigarettes while requiring mandatory health warnings on the package. This would profoundly restrict present e-cigarettes users’ access to the product, specifically the access of children.

The European Union hopes to reduce the 700,000 deaths attributable to tobacco use across all member-states with the revision. There are not many studies discussing the health benefits or risks associated with e-cigarettes. The United Nations World Health Organization has said the safety of e-cigarettes “has not been scientifically demonstrated…and the potential risks they pose for the health of users remains undetermined.”  The Save E-cigs Campaign said the revision would condemn “Europe’s seven million e-cigarette users to a premature death.” Opponents of the revision claim regulation would raise costs, reduce innovation, and force millions back to tobacco use. Are e-cigarettes really saving lives as the opponents of the revision and certain studies claim? Does the European Union have the authority to enact broader regulation to the Tobacco Products Directive?

The European Court of Justice has stated that regulation on tobacco products to ensure a high level of health protection throughout the member-states is in accordance with the Treaties. Since science has yet to discover the long-term health risks associated with e-cigarette use, the European Union has a duty to regulate a product that could be doing more harm than good. The revision does not ban the product. It simply places them on the same platform as regular cigarettes. E-cigarettes had not gained popularity when the European Union passed the Tobacco Products Directive in 2001. Therefore, this revision is necessary to update the current concerns and trends of European consumers.

France and the Ban on Mercedes’ Use of (Il)legal Hydroflurocarbons

In response to the Kyoto Protocol, EU member states have begun an initiative to reduce the amount of hydrofluorocarbons emitted by the air-conditioning systems in automobiles, so that they can be in compliance with the necessary reduction in greenhouse gases required by the Protocol.  The EU has created Directive 2006/40/EC to ensure the uniformity of the effort and to avoid impeding the free movement of commerce between member countries.

Last week France’s administrative court overruled a ban on German engineered Mercedes automobiles for non-compliance with the EU ban on R134a.  The court held that banning the sale or registration of cars being sold with R134a as a coolant for the air-conditioning system could not be upheld when the ban was called into place because of suspicions that Daimler, the parent company for Mercedes, was circumventing technical rules for registration of cars using air-conditioning chemical R134a.  Article 5.4 of the Directive states that after January 1, 2011 member states will not be allowed to approve new cars that are to fitted with air-conditioning systems that will emit a greenhouse gas with a global warming potential of higher than 150.  R134a has a global warming potential of 1430.  France was concerned that Mercedes had registered cars prior to 2011 with R134a, but then, attempting to comply with regulations decided to switch to R1234yf, which is the only chemical that meets current Directive requirements.  However, after testing, Daimler found that R1234yf was combustible at a lower temperature than R134a and decided against using R1234yf in their vehicles, and returned to using R134a.

The Directive notes that at the time it was enacted, there were currently no cost-effective alternative chemicals on the market to replace R134a.  The Directive also noted that the time tables should be re-evaluated when a suitable replacement is discovered, as it may take longer to implement than originally hoped.

Several car companies are now looking for alternatives or putting off the switch to R1234yf until the risks involved are further defined.  Currently there are only two manufacturers of R1234yf, Honeywell and DuPont, and they are urging the speedy implementation of the EU Directive.  DuPont is confident that the risk associated with R1234yf is “nearly a million times lower than the risk related to car fires from all potential causes, and the risk is well below those commonly considered acceptable by the general public and regulatory agencies.”

 

The Royal Baby Bill May Have Not-So-Royal Implications for the Canadian Constitution

British Prime Minister David Cameron set in motion a change to the 300 year-old rules governing heirs to the throne by proposing a bill (hereinafter the Royal Bill) to modify the Royal line of Succession. The modification would eliminate the preference for men over women as heirs to the throne. As the rule currently exists, a female heir may only take the throne if she does not have any brothers – older or younger. However, in October 2011 at the Commonwealth Heads of Government meeting, all 16 countries agreed to modify the centuries-old succession rules.

While all 16 Commonwealth countries have provided written agreements to modernize the rules, each country is still subject to its own legislative procedures. However, this has presented some legal issues for passage in the Canadian Commonwealth. Under Canadian jurisprudence, as quoted by CBC News, the 1701 Act of Settlement is “part of the laws of Canada” and the rules of succession are “by [necessity] incorporated into the Constitution of Canada.” The Canadian Constitution requires that an amendment regarding “the office of the Queen” can only be made when the House, the Senate, and the legislative assembly of each province agree.

This constitutional provision raises several interesting questions.  Does this bill concern the office of the Queen? Or is it just concerning the succession to the throne? One argument proposed by Saskatchewan, as reported by CBC News, claims the Canadian Constitution is only defining the monarch as the monarch of England – whoever that may be. Under this view, the only change that would require unanimous provincial support would be changing this definition. On the other hand, some argue that if the provinces allow the government to “overlook their constitutional right to weigh in on this matter” they may be fundamentally limiting their constitutional right to weigh in on future issues. Any attempt to amend the rules of succession without provincial support may prompt a judicial challenge to the limits of the young Canadian Constitution (patriated in 1982).

However, any delay in passage by one or more Commonwealth Countries will not delay the effective date of the bill.  Any change to the rules of succession will apply to any baby born after the October 11, 2011 agreement. Once passed, the effects of the Royal Bill will be imposed on the unborn child of Prince William and Catherine, Duchess of Cambridge. As a result, if William and Kate have a little girl, their daughter cannot subsequently be bypassed in line as heir to throne if they later have a son.

 

 

Dependent on the European Union for Independence

The Kingdom of Spain is facing another major crisis on top of its economic difficulty as the region of Catalonia threatens to secede and form its own independent democratic nation.  If Catalonia secedes, Spain will be losing one of its most economically prosperous regions, further driving Spain into impoverishment.  Catalonia seeks recognition from the European Union to establish its autonomy.  Catalonia claims that it is already a member of the EU because it is a region of the member state, Spain.  The region of Catalonia’s main issue is its status in the European Union, whether or not it is an automatic member or will be required to apply for membership.

If not accepted as an automatic member of the EU, Catalonia will need to fulfill conditions under the Copenhagen criteria in order to join the EU.  This requires a political, economic, and finally the fulfillment of the Maastricht Treaty; requiring each current member state as well as the European Parliament must agree to any enlargement.  Catalonia is a democracy that supports the Euro, is regionally wealthy, and therefore already meets most of the requirements to join the EU.  Catalonia faces difficulties dependent on whether or not the EU would automatically accept it as a member state if it does secede.

The ability to join automatically or require formal application and acceptance is a critical issue for the European Union.  If the EU were to allow the automatic acceptance of a member state’s regions, this acceptance authorization could cause serious division amongst the member states.  The automatic acceptance of a member state’s region into the EU would particularly affect Great Britain, Belgium, and Germany as each nation consists of regions with historically independent cultures.  On November 7th the Catalan President Artur Mas confronted the EU’s hesitant position by saying it would be “illogical” not to accept small, rich, pro-EU Catalonia as an automatic future member if it splits from Spain.  The EU is abstaining from discussing this issue until after the Catalan elections which will take place on November 25th 2012.

The Catalan elections occurring on November 25th are critical for Spain, the European Union, Catalonia, and restless regions of other EU member nations because the elections will force the European Union to take a position on regionalism.  President Artur Mas will seek to secede if his party wins the election, “The question will be if the EU is prepared to offer solutions to countries such as Catalonia, that have the will to be in Europe, that have the same rights as European citizens and that … only to change their political status.”




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