The Rosas Legacy at the Court of Justice

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Allan Rosas left the Court of Justice on 7 October 2019, after almost eighteen years of service as a distinguished member of the EU’s highest jurisdiction. He bears witness to profound changes in the EU’s judiciary, from the time of the pre-accession Court of 2004 to the recent and massive machinery of case-law production in these tumultuous times. One of the most respected judges during his tenure, he earned the respect of his peers through a combination of hard work, common sense, nordic straight-forwardness, intellectual force and openness to the ideas of others. When a major intellect departs an institution, the absence leaves major gaps that are hard to fill in short timeframes. The longer the tenure of the departing judge, the harder it is to fill in the blanks.

Rosas’ tenure at the Court was a very long one, and his hand was behind so many landmark judgments that it is difficult to summarize his many achievements. Just by looking at the cases in which he acted as a reporting judge, which is a litmus test to identify a judge’s contribution to the case-law, it is hard to know where to start. And in the case of an authoritative judge like Allan Rosas, his influence certainly goes way beyond these cases.

The first time the Court of Justice referred to the Charter of Fundamental Rights, in Parliament/Council (C-540/03), even before the Charter came into force in 2009, was through a subtle way probably conceived by the reporting judge of the case, Allan Rosas. According to the Court, as long as the EU legislature made a reference to the Charter in the recitals of a Directive, that Directive can be reviewed and interpreted in light of the Charter. This approach paved the way to turn the Charter into a relevant source of interpretation in the Luxembourg court, at a time in which the Charter was still a legal mystery for many.

Aranyosi and Caldararu had a significant precedent in the cases of N.S (C-411/10 and C-493/10), where the Court, for the first time, allowed for systemic derogations to the equivalent of mutual recognition in the field of asylum, shortly after the European Court of Human Rights questioned the rules of competence of the Dublin system. In N.S. the Court explored for the first time how systemic breaches of fundamental rights, particularly of those closely attached to the dignity clause, could serve as an exception in intra-EU cooperation mechanisms. To reach that result in a way that the Dublin system was not destroyed, while aligning the Court to Strasbourg’s prior rulings, was not a simple task that Rosas helped his peers to pull off elegantly in a carefully reasoned judgment. It is, therefore, no surprise that the Court’s most symbolic case in dealing with a national dignity clause, Omega (C-36/02), was also under Allan Rosas’ role as reporting judge.

Rosas was once again in charge of the pen the first time that the Court handled the issue of national identity as a justification to free movement rules. In Sayn-Wittgenstein (C-208/09), now a classic in the national identity debate, the Court showed how free movement rules and highly charged justifications could coexist in an orderly way, considering the specificities of the Member State concerned and its history. Austria’s past and the reasons why it is currently a Republic helped explain why aristocratic names were excluded from Austrian public registers. The Court was sensitive to that fact, it provided its first substantive reading of the national identity clause and managed to do so in a way that balanced all the parties’ interests.

Rosas’ contribution to the development of free movement rules, and the interplay with free movement of capital, was particularly relevant in Fidium Finanz (C-452/04), where the Court set the criteria to apply the freedom to provide services and free movement of capital in cases with third-country links. In the field of direct taxation, the Court set new terms in T Danmark (C-115/16, C-116/16 and C-117/16), to make use of Directives when the principle of abuse is involved, in ways that will have a lasting impact in corporate tax practice throughout the Union.

The standard threshold of judicial review by the Court in merger cases was set in Tetra Laval (C-12/03 P), again under judge Rosas’ report. The precedent set the conventional approach of the Court towards economic assessment in mergers, a matter to which it openly declined to become an arbiter. In competition law he contributed to set other relevant precedents like Solvay, on access to the file, or Toshiba, on ne bis in idem and national and EU competition sanctions. In the field of State Aids, the Azores judgment, and the territorial definition of selectivity in fiscal autonomous regions of Member States, still resonates in the practice of many Member State tax authorities.

The impact of Allan Rosas in EU citizenship was remarkable. First, in 2006, he was reporting judge in two landmark cases on the personal scope of EU citizenship, Eman and Sevinger (C-300/04) and Spain/UK (C-145/04). Who is a EU citizen, and how much leeway have Member States in determining who a EU citizen is? When The Netherlands and the UK granted voting rights to the European Parliament to third-country nationals with strong links with those Member States, the question was raised to the Court, only to be replied with a pragmatic response that balanced historical traditions of Member States with the need to preserve a core of EU identity. Later on, when dealing with the core of EU citizenship, Rosas developed the Ruiz Zambrano doctrine and turned it into a not-so-exceptional doctrine in Chavez-Vilchez (C-133/15) and Rendon MarĂ­n (C-165/14).

All the cases quoted above are key judgments of the Court of Justice. But the decisions were rendered in fields in which Allan Rosas was not a world expert until he joined the Court, or at least not to the degree that he was, and still is, an expert in the domain of public international law, the topic on which he devoted most of his academic career. Opinion 1/03 (Lugano), Abdullahi (C-394/12), Anbouba/Council (C-605/13 P and C-630/13 P), Abdulrahim/Council and Commission (C-239/12 P), Parliament/Council (C-130/10), Rosneft (C-72/15) and many more, are all leading decisions in the Court’s case-law on external relations, an area in which Allan Rosas was highly respected well before he joined the Court.

How much influence can an individual have in a court’s overall collegiate work? Seen from the outside, it is difficult to say. But the review of cases in which a single judge has taken the responsibility of drafting and leading the chamber in one or another direction, is a reasonable criterion to make a preliminary conclusion. In the case of Allan Rosas, it is hard to imagine how the case-law would look if others would have taken the task of handling the cases mentioned above. But the truth is that the case-law still stands today, and it will probably do so for years to come. And that is probably the best tribute to the individual contribution of a judge: seeing the result of his or her hard work stand the test of time. In the case of Allan Rosas, it is safe to say that time will be particularly gracious with his contribution to European law.

About the author

Daniel Sarmiento

Daniel Sarmiento is Professor of EU Law at University University Complutense of Madrid and Editor in Chief of The EU Law Live Blog.

By Daniel Sarmiento

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