Case-law of the court of justice in 2018
| Author | Court of Justice of the European Union |
| Pages | 13-115 |
B| Case-law of t he Court of Justice in 20 18
B|
CASE-LAW OF THE COURT OF JUSTICE
IN 2018
I. Withdrawal of a Member State
from the European Union
Following the U nited Kingdom’ s decision to withdr aw from the European Unio n, the Court adju dicated on
two request s for a preliminary ruling relating to that Member States noticat ion of its intention to leave.
n the rst place, in the judgment in Wightman and Others (C-6 21/18, EU:C:2018:999) of 10 December 2018,
the Full Court h eld, under the exp edited procedure, 1 that A rticle 50 TEU allows a Mem ber State to revoke
unilaterally the notication of its intention to withdraw from the European Union. That request for a prelimina ry
ruling had been submitt ed by the Cour t of Session , nner House, First Divis ion (Scotland), in judicial revie w
proceedings bro ught by members of the UK Pa rliament, the Scot tish Parliament and the Euro pean Parliament
to determine whether and h ow the notic ation referred to in Article 50 TEU could be revoked before expiry
of th e two -year perio d provided for in paragra ph 3 of that provision, with the eect that such revoc ation
would result in the U nited Kingdom remaining in the Europ ean Union.
In response to the UK G overnment and the Co mmission’s argum ents that the ca se was inadmissible, t he
Court pointe d out that the ques tion of interpret ation referred to it by the national co urt was relevan t and
not hypothet ical, given that it was pre cisely the point at issue in t he case pending before tha t court. The fact
that the act ion in the main proceedings seek s a declaratory remedy do es not, moreover, prevent the Cour t
from ruling on a ques tion referred fo r a preliminary ru ling, provided t hat the action is p ermitted und er
national law and th e question meet s an objecti ve need for the purp ose of settlin g the dispute proper ly
brought before t he national court.
As regards the interpreta tion of Articl e 50 TEU, the Court rst of all noted that that article does not expli citly
deal with the re vocation of an inte ntion to withdr aw. Next, it obs erved that A rticle 50 TEU pur sues two
objectiv es. First, it enshrine s the sovereign right of a Member St ate to withdraw from the European U nion,
since that decision need not be taken in conce rt with the ot her Member States o r with the EU institutions .
Secondly, Ar ticle 50 TEU es tablishes a procedure to e nable such withdrawal to t ake place in an orderly fash ion.
The sovereign na ture of the right of withdrawal s upports the conclusion tha t the Member State concerned
has a right to revoke the notication of its intention to withdraw from the European Union, for as long as a
withdrawal ag reement concluded b etween the EU an d that Member State h as not entered into force o r, if
no such agreemen t has been concluded , for as long as the tw o-year perio d laid down in Ar ticle 50(3) TEU,
possibly ex tended, has not expired. Revoc ation may thus be decided upon unila terally, in accordance with
the consti tutional requirements of the Member State concerned. t r eects a sovereign decision to re tain
the status o f Member State of the European Union , a status which is neithe r suspended nor altered by that
noticatio n. Concerning, lastly, the context of Article 50 TEU, the Court made clear that it would be inconsistent
with the EU Treaties’ p urpose of creating a n ever closer union amon g the peoples of Europ e to force the
withdrawal of a Member State which, having notied its intent ion to withdraw from the European Union in
acc orda nce wi th it s cons titu tion al rul es an d follo wing a democ rat ic pro cess , deci des to rev oke th e noti cat ion
1|Order of the President of t he Court of 19 Octob er 2018, Wightman and Others (C-621/18, EU:C:2018:851).
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Annual Repor t 2018 | Judicial Act ivity
of that intention t hrough such a proces s. To subject the right to re voke to the unanimous ap proval of the
European Council wou ld transform a unilate ral sovereign right into a c onditional right and w ould be incompatible
with the prin ciple that a Member State canno t be forced to leave the European Union again st its will.
The Court als o explained that revocation o f the notication of an intentio n to withdraw must be submit ted
in writing to the Eu ropean Council and must be une quivocal and uncondit ional, that is to say that th e purpose
of such revocation is to co nrm the EU membershi p of the Member St ate concerned under ter ms that are
unchanged as regards i ts status as a Membe r State, and that revocat ion brings the withdra wal procedure to
an end.
In the second place, r eference must be made to RO (C-327/18 PPU, EU:C:2018:733), delivered on 19 September
2018 by the First Chamb er under the urgent preliminar y ruling procedure. In that judg ment, the Court held
that mere notication by a Member State of its intention to withdraw from the European Union is not an exceptional
circumstance capable o f justifyin g a refusal to execute a Europea n arrest warrant issue d by that Member State
under Framework Decision 2002/584. 2 The main act ion concerned proce edings before th e Irish authorit ies
relating to the exec ution of two arrest wa rrants issued by the cour ts of the United Kingdom . RO objected to
being surrendere d to the authoritie s of that Member State on the g round, in particu lar, that after its wit hdrawal
from the European Union (Brexit ), he would no longer be able to r ely on the rig hts that he d erives f rom
Framework Dec ision 2002/584 or to hav e the conformity with EU la w of the implementation of th ose rights
by the United Ki ngdom reviewed by the Cour t. The national court ’s concerns in that respec t stemmed from
the fact tha t RO was at risk of being detained by the UK authorities after Bre xit and from uncertaint y as to
the arrangement s which would be in place betwe en the European Union and the United Ki ngdom after its
withdrawal.
After reca lling that the execu tion of a European arres t warrant is the ru le and a refusal to exec ute is an
exception which must be interpreted strictly, the Court observed that the notication by a Member State of
its intention to withdraw from the European Union in accordance with Article 50 TEU does not have the eect
of suspending the a pplication of EU law in that M ember State. Consequent ly, the provisions of the f ramework
decision and the pr inciples of mutual trus t and mutual recognition inhere nt in that decision continue in full
force and e ect in that Mem ber State until t he time of its a ctual withdrawal from the EU. Even though it is
for the European Counc il to determine a breach i n the issuing Member St ate of the principl es set out in
Article 2 TEU wi th a view to the applic ation of the European ar rest warrant me chanism being suspend ed,
the Court consid ered that such refusal t o execute would be tanta mount to unilateral suspensi on by a Member
State of the prov isions of the framework decisio n.
However, the Court fou nd that it remains the task o f the executing judicial au thority to exami ne, after carr ying
out a specic and p recise asse ssment of the p articular case, w hether the re are substantial grounds for
believing tha t, after the withdra wal from the European Union of the iss uing Member State, the perso n who
is the subject of t he arrest warrant is at r isk of being deprived of his fun damental rights and t he other rights
he derives, i n essence, from the framew ork decision. Nevert heless, it is essenti al that that authorit y be able
to presume that , with respect to the pers on who is to be surrendered, the issui ng Member State will apply
the content of the r ights derived from the f ramework decision that are ap plicable in the period subs equent
to the surrender, aft er its withdra wal from the European Uni on. Such a presumptio n can be made if the
national law of the i ssuing Member State incorporat es the substantive content o f those rights, part icularly
because of the co ntinuing part icipation of tha t Member State in inte rnational convent ions, even af ter its
withdrawal fr om the European Union. In the ca se in point, the Court no ted that the United Kingdo m is a party
2|Council Frame work Decision 20 02/584/J HA of 13 June 2002 on the Euro pean arrest war rant and the surren der procedures be tween
Member Stat es (OJ 2002 L 190, p. 1).
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B| Case-law of t he Court of Justice in 20 18
to the European Conve ntion on Ext radition of 13 December 1957 and has therefo re incorporated int o its
national law rig hts and obligations which mirro r those resulting from Art icles 27 and 28 of that framework
decision. In addi tion, the United K ingdom is a part y to the European Conven tion on Human Right s and
Fundamental Freed oms (ECHR ) and Brexit will thus have no eect on the obligation to have due regard to
Article 3 thereof enshrining the pro hibition of torture and inh uman or degrading treatment o r punishment,
which corres ponds to Articl e 4 of the Char ter of Fundamental R ights of the Europ ean Union (the Charter) .
Consequentl y, the United Kingdom’s de cision to withdraw from th e European Union cannot jus tify the refus al
to execute a European ar rest warrant issued by a ju dicial authority of t hat Member State on the gro und that
the person surrend ered would run the risk of suering inhuman or degr ading treatment within the meaning
of those provisions.
II. Fundamental Rights
In 2018, the Court rul ed on numerous occasi ons on fundamenta l rights in the EU leg al order. A number of
those decisions ar e covered in this report .
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The decisions se t out in this section pro vide considerable guidance
concerning the po ssibility of relying o n the Charter in disputes be tween individuals , proceedings relating to
the alleged breach o f fundamental rights en shrined in the Charter, and the scope o f some of the rights and
principles laid d own in the Charter.
1. Possibility of relying on the Charter of Fundamental Rights
of the European Union in disputes between individuals
In its judgmen ts in Egenberger (C-414/ 16, EU:C:2018:257) of 17 April 2018 and IR (C- 68 /17, EU:C:2018:696) of
11 September 2018, the Grand Ch amber of the Court ruled, i nter alia, on the judicial protection for individuals
owing from Art icles 21 and 47 of the Charter in relati on to the application, by a church or by establi shments under
the authori ty of a ch urch, of condition s of a religious nature in the context of e mployment relationshi ps.
The case giv ing rise to the judgm ent in Egenberger (C-414/16) concerned the rejectio n of a job application
submitted by a p erson of no denominat ion for a position with Pro testant Work for Diaco nate and Development ,
an associatio n governed by private la w which is an auxiliar y organisation of the Pr otestant Church in G ermany.
Acc or din g t o t he o er of em pl oym en t, ap pl ica nt s had to be lo ng to a P ro tes t ant ch ur ch or a c hu rch b elo ng ing
3|The followin g judgments are incl uded: judgment of 19 Septembe r 2018, RO (C-327/18 PPU, EU:C: 2018:7 33), p resented in Section
With drawal of a Member Stat e from the European Unio n; judgment of 13 November 2018, Raugevicius (C-2 47/ 17, EU:C: 2018:898),
presented in Secti on Citiz enship of th e Union; ju dgments of 24 April 2018, MP (Subsidiar y protection of a person previously a
victim of tor ture) (C-353 /16, EU:C:2018:276), of 25 Janu ary 2018, F (C-473/16, EU:C:2018:36), and of 4 Oc tober 2018, Ahmedbe kova
(C-6 52/16 , EU:C:2018:801), prese nted in Sec tion V Border cont rols, asyl um and immig ration; ju dgments of 19 September 2018,
C.E. and N. E. (C-325/18 PPU and C-375/18 PPU, EU :C:20 18:73 9), and of 17 Octob er 2018, UD (C-393/18 PPU, EU:C:2018:835), presented
in Jud icial coopera tion in ci vil matter s; judgmen ts of 25 Jul y 2018, Minis ter for Just ice and Equa lity (Dec iencies in the system of
justice) (C-216/18 PPU, EU:C:2018:586) and Generalstaatsanwaltschaft (Conditions of detention in Hungary) (C-220/18 PPU, EU:C:2018:589),
and of 5 June 2018, Kolev an d Others (C-612 /15, EU:C:2018:392), pres ented in Sec tion X Jud icial coopera tion in crim inal matter s;
judgment s of 26 April 2018, Donnellan (C-34/17, EU:C:2018:282), and of 2 Oc tober 2018, Ministerio Fiscal (C-2 07/16, EU:C :2018 :788),
presented in S ection XV Ap proximation of laws ; judgments of 4 Oc tober 2018, Hein (C-385/17, EU:C:2018 :1018), and of 13 Dece mber
2018, Dicu (C -12/ 17, EU:C:2018:799), presented in Sec tion XV Soc ial policy; and judgm ent of 31 May 2018, Sziber (C-48 3/16, EU:C:2018:367),
presented i n Section X V Consumer pr otection.
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