184
Michal Bobek
Troisième séance de travail — Les perspectives
Cut. We are in 2013. Union law has expanded considerably into new areas
of law over the last 15 or 20 years. It started engaging much more with fields
of law directly affecting natural, physical persons, not just economic operators
(within areas such as Justice and Home Affairs; fight against terror measures;
criminal, civil and administrative cooperation and the spree of horizontal en-
forcement mechanisms in all these areas of law; deeper involvement in social
and labour matters in the Member States; and so on). Above all, however, there
is now the omnipresent fundamental rights discourse, which can translate
whatever legal issue into a fundamental rights question. It is thus no accident
that the two most important cases handed down in 2013 (so far) by the Court
are those in which characters and their cast became reversed. In
Melloni
(
5
) as
well as partially in
Åkerberg Fransson
(
6
), it is in fact the Member States which
find themselves on the Light Side and the Union on the Dark Side.
The social context has thus been changing considerably. Starting with
Van
Gend en Loos
, it was the individuals who in the name of the EU or the E(E)
C, while pursuing their own interests, were dismantling the bad, protection-
ist Member State. Today, it is more and more often the good, old Member
State who appears to be protecting its poor citizens against the evil EU, which
for instance insists on extraditing (surrendering) them into another Member
State (
7
); which wishes to monitor any electronic communication of any
(
5
) Judgment of the Grand Chamber of 26 February 2013, Case C-399/11,
Melloni
.
(
6
) Judgment of the Grand Chamber of 26 February 2013, Case C-617/10,
Åkerberg Fransson
. It
is true that in contrast to
Melloni
, the
Åkerberg Fransson
scenario is mixed, with both, the
Union and the Member State having some light as well as dark tones. However, the Union is
hardly the knight in the shining armour in
Åkerberg Fransson
either: even if the applicable
law in question was of national origin, its purpose and effect was to collect taxes for the
Member State as well as the Union (in case of the Value Added Tax). Thus, the individual is
provided with no protection against its Member State that might have perhaps overreached
in terms of enforcement, as the Union itself sees the benefit in efficiently collecting its share
of the VAT. This is not to say that the decision in
Åkerberg Fransson
was wrong. It is just to
capture the humane message of the case, from which it would appear that there can indeed
be two Sith Lords at the same time.
(
7
) See Council Framework Decision No 2002/584/JHA of 13 June 2002 on the European arrest
warrant and the surrender procedures between Member States (OJ 2002, L 190, p. 1) and
by now a number of cases interpreting it, starting with Case C-303/05,
Advocaten voor de
Wereld
[2007] ECR I-3633.
