What’s App in Europe – January 2018

The Rule of Law in Poland

Article 2 of the Treaty of the European Union (TEU) provides that:

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

These values imbue all aspects of the Union’s activities but not only to the activities of the Union as the Union but to the activities of the Member States. Article 7 of the TEU allows the Council, acting on the basis of a majority of four fifths of its members and having obtained the consent of the European Parliament to determine that there is a clear risk of a serious breach by a Member State to these values. In certain circumstances Article 7 also allows the Council to suspend certain of the rights that Member States enjoy.

In this sense, the Union’s values have become the values of the Member States independent of the constitutional order of those states.

In a Reasoned Statement dated 12 December 2017, the Commission argues that certain changes to the organisation of the administration of the law in Poland and in particular in relation to the independence of the judiciary are a breach of the Union’s Article 2 values. The Commission asks that the Council determine that there is a clear risk of a serious breach of the rule of law. The matter will be debated in the Council in the course of 2018.

EU law depends on the Members States for its implementation. If the Commission considers that the Courts in Poland are not independent and the administration of justice does not meet the standard for the rule of law, it means that Union law is not being properly administered in Poland. This conclusion has consequences of a fundamental nature for the Union and for the Member States. It is one thing when a Member State does not apply a specific law. It is all together another issue when the legal structure itself is flawed.

As we note in the editorial, the Union is built on law. This finding by the Commission is that there is a rotten apple in that law. It must be excised.


The new Government in Austria

The issue of the rule of law in Poland is fundamentally different from the issue of the inclusion of the far right in the new government of Austria or of the entry of far right parliamentarians into the federal legislature in Germany. These political developments are taking place within a constitutional framework that is being respected by all parties.

This difference between these developments and the development in Poland can be seen in the decision by the Presidents of the Commission (Juncker) and the Council (Tusk) to defer any comment or judgement until such time as these new forces have acted. This is the right approach to take. If there is no attempt to undermine the very legal framework then the Union does not have much to say unless other values such as pluralism or non discrimination or toleration are not undermined.

We live in interesting times.


Land Borders in the EU

A close examination of the borders between a number of different EU Member States shows that there are many smouldering issues which have never been resolved. Slovenia and Croatia are a case in point. Both dispute the land around and the waters in Piran Bay which is part of Slovenia’s 46 Km long coast line (in the Adriatic Sea). Croatia wants the border drawn down the middle of the bay but this could cut Slovenian territorial waters.

Slovenia became an EU member state before Croatia and insisted that as a condition for joining the EU, Croatia would agree to international arbitration on the dispute. The dispute was heard before the International Court of Arbitration which ruled in June 2017 largely in favour of Slovenia. Croatia is now hesitating.

The question is whether Slovenia or the Commission could take Croatia to the EU Courts in Luxembourg for not implementing the ruling and what would the consequence be if that happened.


Champagner Sorbet

Champagner sorbet is a common name in Germany for a type of sorbet. Aldi, the German supermarket chain began selling it in 2012. The consortium that groups France’s champagne producers brought an action claiming that Aldi was unfairly taking advantage of the reputation of the name Champagne.

In a ruling from just before Christmas the Court of Justice found that the use of the word Champagne in Champagner sorbet did not take undue advantage of the protected designation of origin Champagne.

This follows on from an earlier decision from General Court in Luxembourg (the EU court of first instance) that Port Charlotte as a trade mark for whiskey did not take undue advantage of the protected designation of Port for wines.




This article is for information purposes only and is not intended as a professional opinion.
For further information, please contact: Bernard O’Connor.

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