PhD (Dr. iur. Erlangen 2009); Second State Examination (Bavaria 2006); First State Examination (Bavaria 2004); Diploma in Common Law (NUI 2001); Rechtsanwalt (German barrister/solicitor, OLG NŁrnberg)
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Wednesdays, 11.30 - 12.30
Tobias Lock has been a lecturer in EU Law at Edinburgh Law School since 2013.
His research interest lies broadly speaking in the EU’s multilevel relations with other legal orders. His main focus is on courts as frontline actors in this plural legal environment. He has published two books on the relations between the European Court of Justice and international courts and has done much work on the relationship between the EU and the European Convention on Human Rights, in particular the EU’s accession to the Convention.
Tobias also works on the application of European law and legal remedies by national courts in different Member States with a particular focus on the UK and Germany. This allows him to combine his interest in comparative law with that in European law. As part of this research he published an article on Member State liability in the national courts and another article addressing the differences in the application of the law on belief discrimination in England and Germany. His other other research interests include EU constitutional law; (comparative) German constitutional law, and law and religion.
He contributes regularly to parliamentary and government enquiries, has drafted policy papers, and was the UK national rapporteur on fundamental rights for the FIDE 2012 congress.
Tobias' previous places of work included University College London, the University of Surrey and the University of Erlangen (Germany), where he also received most of his legal education.
Tobias welcomes enquiries from potential students interested in undertaking research degrees in any of these fields.
He is admitted to the German bar as Rechtsanwalt.
EU Constitutional Law (LLM) (Course Organiser)
EU Fundamental Rights Law (LLM) (Course Organiser)
European Union Law (Honours) (Course Organiser)
European Union Law Ordinary (Ordinary)
Human Rights Law in Europe (LLM)
Emily Hancox 'The Interplay between Norms in the EU Legal Order: Implications for the Scope of EU Law'
Mihail Vatsov 'Making international fisheries conservation law: What role for the EU?'
Tobias Lock The European Court of Justice and International Courts (OUP, 2015)
Abstract: The Court of Justice of the European Union has exclusive jurisdiction over European Union law and holds a broad interpretation of these powers. This, however, may come into conflict with the jurisdiction of other international courts and tribunals, especially in the context of so-called mixed agreements. While the CJEU considers these 'integral parts' of EU law, other international courts will also have jurisdiction in such cases. This book explores the conundrum of shared jurisdiction, analysing the international legal framework for the resolution of such conflicts, and provides a critical and comprehensive analysis of the CJEU's far-reaching jurisdiction, suggesting solutions to this dilemma. The book also addresses the special relationship between the CJEU and the European Court of Human Rights. The unique interaction between these two bodies raises fundamental substantive concerns about overlaps of jurisdiction and interpretation in the courts. Conflicts of interpretation manage largely to be avoided by frequent cross-referencing, which also allows for much cross-fertilization in the development of European human rights law. The link between these two courts is the subject of the final section of the book.
Tobias Lock Das Verhältnis zwischen dem EuGH und internationalen Gerichten (Mohr Siebeck, 2010)
Abstract: The growing number of international courts and tribunals has led to conflicts of jurisdiction and conflicts of interpretation. Due to the European Union's increasing activity on an international level, the European Court of Justice has been affected by these conflicts. Before the background of the ECJ's exclusive jurisdiction, the book discusses the relationship between the European Court and international courts, and examines whether the solutions found in international law can be applied to the ECJ.
Tobias Lock, Kanstantsin Dzehtsiarou; Theodore Konstadinides; Noreen O Meara Human Rights Law in Europe (Routledge, 2014)
Abstract: This book provides analysis and critique of the dual protection of human rights in Europe by assessing the developing legal relationship between the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). The book offers a comprehensive consideration of the institutional framework, adjudicatory approaches, and the protection of material rights within the law of the European Union and the European Convention on Human Rights (ECHR). It particularly explores the involvement and participation of stakeholders in the functioning of the EU and the ECtHR, and asks how well the new legal model of 'the EU under the ECtHR' compares to current EU law, the ECHR and general international law. Including contributions from leading scholars in the field, each chapter sets out specific case-studies that illustrate the tensions and synergies emergent from the EU-ECHR relationship. In so doing, the book highlights the overlap and dialectic between Europe's two primary international courts. The book will be of great interest to students and researchers of European Law and Human Rights.
Tobias Lock 'The future of the European Union's accession to the European Convention on Human Rights after Opinion 2/13:is it still possible and is it still desirable?' (2015) European Constitutional Law Review 11(2) pp 239-273
Abstract: EU Accession to the European Convention on Human Rights - Hurdles erected by Opinion 2/13 of 18 December 2014 - Analysis of soundness of the ECJ's reasoning - Discussion of necessary changes to the Draft Accession Agreement - Criticism that not all obstacles can be removed by amending the Draft Agreement - Treaty change may be necessary - Question whether accession is worth it from a human rights perspective under these conditions.
Tobias Lock 'Religious Freedom and Belief Discrimination in Germany and the United Kingdom: Towards a Common European Standard?' (2013) European Law Review 655
Abstract: This article compares how two closely related remedies, freedom of religion and belief discrimination, are applied by domestic courts in the United Kingdom and Germany. It concludes that the current practice of the courts in these two countries differs considerably and questions why that is so, given that the courts in both countries operate under essentially the same European legal framework determined by the ECHR and EU law. It is suggested that decision-making by domestic courts is still influenced by traditional domestic remedies and that domestic courts seem to find it difficult to adapt to new remedies. The article then gauges the potential for a common European approach, which, while theoretically possible, is unlikely to be triggered by either of the two European Courts. This is because cases dealing with religion often touch on core constitutional values, which both Courts usually respect.
Tobias Lock 'End of an epic? The draft accession agreement on the EU's accession to the ECHR' (2012) Yearbook of European Law 162-197
Abstract: This contribution aims to analyze and assess the draft agreement on the European Union's (EU) accession to the European Convention on Human Rights (ECHR). The paper first discuss the effects which accession will have on the system of human rights protection under the ECHR focusing on the most relevant features of the accession agreement, such as the co-respondent mechanism and the prior involvement of the ECJ. The second part of this contribution explores the future status of the ECHR in the EU's legal order. It is argued that accession will not affect the status quo of fundamental rights protection before the EU's courts or domestic courts in any material way. Nonetheless, accession is to be welcomed as it will allow for full external scrutiny by the European Court of Human Rights.
Tobias Lock 'Is private enforcement of EU law through state liability a myth? An assessment 20 years after Francovich' (2012) Common Market Law Review 1675-1702
Abstract: The article assesses the success of Member State liability as a tool for the private enforcement of European Union law. The argument made is that Member State liability, first established 20 years ago in the Francovich case, is not a suitable and reliable mechanism to compensate for the weaknesses of public enforcement. The argument is based on statistical findings concerning the case law on Member State liability in two key Member State jurisdictions, England and Germany. The findings reveal that surprisingly little litigation has taken place so far and that only a handful of cases were litigated successfully. This leads the author to conclude that Member State liability has not been successful as a mechanism for the enforcement of EU law. The article continues by analyzing why most of the proceedings initiated remain unsuccessful. It is shown that the criteria for the remedy are very difficult to satisfy and that there is reluctance on the part of national courts to award damages for the failure of Member States to comply with EU law. Before this background it is suggested that state liability under EU law should be chiefly regarded as a means of individual compensation rather than a tool for the private enforcement of EU law.
Tobias Lock 'A critical comment on the accession of the EU to the ECHR' (2011) Justice Journal Vol 8 No 2 11-30
Tobias Lock 'Walking on a tightrope: the draft accession agreement and the autonomy of the EU legal order' (2011) Common Market Law Review 1025-1054
Abstract: The ongoing negotiations on accession of the European Union to the European Convention on Human Rights ("ECHR" or "Convention") prove to be a difficult task for the negotiators. Since the accession involves the unusual occurrence of a supranational organization signing up to a sophisticated system of human rights protection, this does not come as a surprise. Apart from the political difficulties of obtaining the consent of forty-seven signatories to the Convention and of the EU's institutions and Member States, the requirements of two very different legal orders need to be brought in line. From the point of view of European Union law, the most prominent obstacle to an integration of the EU into the external supervision mechanism of the Convention is the autonomy of the EU legal order. From the very start of the negotiations it has been clear that that autonomy, which is jealously policed by the Court of Justice of the European Union, would be a major issue for the negotiators. This contribution is therefore dedicated to the intricacies which the negotiators, and potentially the ECJ, face in this respect. It refers to the different versions of a draft agreement published by the informal working group on accession. It contains a critical analysis of the draft with regard to the autonomy of the EU's legal order but also makes more general comments on whether the proposed solutions would be workable.
Tobias Lock 'Beyond Bosphorus: the European Court of Human Rights' Case law on the Responsibility of Member States of International Organisations under the European Convention on Human Rights' (2010) Human Rights Law Review 529-545
Abstract: The paper examines and critically assesses the ECtHR's case law applying and distinguishing the Bosphorus decision. The discussion revolves around two major points: the first is the ECtHR's distinction between cases where there was a domestic act or omission of some sort so that the Bosphorus case applies and member states can (generally) be held responsible; and cases where no such act can be found so that they are dismissed as inadmissible ratione personae. It is argued that this distinction is not convincing. The second point is the application of the Bosphorus decision in a number of cases. The paper tries to explore whether the exact conditions for the applicability of the presumption and its rebuttal have become any clearer.
Tobias Lock 'EU Accession to the ECHR: implications for the judicial review in Strasbourg' (2010) European Law Review 777-799
Abstract: The accession of the European Union to the ECHR raises fundamental questions surrounding the protection of individual rights in the Strasbourg court and the autonomy of EU law. It is argued that any solution should ensure the effective protection of the individual applicant. Thus the appropriate respondent in Strasbourg should be the party which has acted in the concrete case as it can be easily identified. The European Union's autonomy can be preserved by allowing it to join as a co-respondent. Since the individual has no influence over whether a national court makes a reference under art.267 TFEU, the lack of such a reference should not lead to the inadmissibility of the complaint.
Tobias Lock 'The ECJ and the ECtHR: The Future Relationship Between the Two European Courts' (2009) The Law and Practice of International Courts and Tribunals 375-398
Abstract: The current relationship between the two European courts has been discussed in some great detail while the future of that relationship has been widely neglected. This is somewhat surprising as the entry into force of the Lisbon Treaty and with it of the EU Charter of Fundamental Rights as well as the EU's succession to the ECHR are probably going to take place before too long. The article first examines Article 52(3) of the Charter, which prescribes that the ECHR be the minimum standard of human rights in the EU. It is argued that Article 52 (3) does not entail a reference to the ECtHR's case law so that the ECJ will not be bound by that case law. After an accession of the EU to the ECHR, it is likely that both courts will assert that they have exclusive jurisdiction over the ECHR in inter-state cases, which creates a jurisdictional conflict for which a solution must be found. In addition, the article explores whether after an accession, the Bosphorus case law will have a future and whether the dictum found in Opinion 1/91 will be applicable, according to which the ECJ is bound by the decisions of courts created by an international agreement to which the EC is a party.
Tobias Lock 'The European Court of Justice: What Are the Limits of Its Exclusive Jurisdiction?' (2009) Maastricht Journal of European and Comparative Law 291-314
Abstract: The article explores the limits of the ECJ's exclusive jurisdiction by addressing two main issues: firstly, whether there are exceptions to that exclusivity, such as the application of the CILFIT case law or the exclusion of Community law from the dispute. Secondly, it asks whether other international courts must respect the ECJ's jurisdiction over a case. The article commences by briefly discussing the ECJ's exclusive jurisdiction as it was established in Opinion 1/91 and the Mox Plant-Case and draws conclusions from this case law. It then addresses the above-mentioned points and comes to the conclusion that there are generally no exceptions to the ECJ's exclusive jurisdiction and that the only option open to Member States is to exclude Community law from a dispute (and even that option is subject to limitations). Furthermore, after exploring several routes advanced in the academic discussion, the article comes to the conclusion that other courts must respect the ECJ's jurisdiction and as a consequence declare the case inadmissible.
Tobias Lock 'Industrie-, Forschungs- und Entwicklungspolitik' in Wegener, Bernhard W. (eds) Enzyklopädie Europarecht, Band 8: Europäische Querschnittspolitiken (Nomos, 2014) 375
Tobias Lock 'Religious Symbols in German Schools' in Myriam Hunter-Henin (eds) Law, Religious Freedoms and Education in Europe (Ashgate, 2012) 347-369
Abstract: The paper is concerned with religious symbols in Germany. It mainly focuses on decisions by the Federal Constitutional Court on religious symbols in schools. Court had to deal with two landmark cases concerning the topic of religious symbols. The facts and the outcome of the first decision very much resemble those in the recent Lautsi case: the parents of a child objected to a Bavarian law requiring that a crucifix be affixed in every class room. The Court regarded this as a violation of the student's freedom of religion. The second case added another dimension: the school authority refused to employ a Muslim teacher who insisted on wearing a headscarf in class. In that case not only the students' freedom of religion was at issue but also that of the teacher. The Court managed to avoid a ruling on this conflict of fundamental rights by arguing that the school authority had acted without a legislative basis, which made the refusal to employ the teacher illegal. The paper will look at the arguments made in the academic discussion and by inferior courts (most importantly by the Federal Administrative Court). Furthermore, it will examine the reaction by the legislatures of the Länder, which ranged from categorically banning all religious symbols to allowing only those which are in accordance with 'Christian and occidental cultural and educational values', a provision which was upheld by the Bavarian Constitutional Court. The paper also discusses unsuccessful challenges under anti-discrimination law as well as the possibilities of banning religious symbols worn by students.
Tobias Lock 'EU accession to the ECHR' in Diamond Ashiagbor; Nicola Countouris; Ioannis Lianos (eds) The European Union after the Treaty of Lisbon (Cambridge¬†University¬†Press, 2012) 109-¬≠135
Notes and Reviews
Tobias Lock 'Are there exceptions to a Member State's duty to comply with the requirements of a Directive?' (2013) Common Market Law Review 217-230
Abstract: This decision by the Grand Chamber of the Court of Justice is characterized by an unusual factual situation resulting in a legal dilemma for the referring court. That court had to decide whether to annul a programme adopted in accordance with one EU directive because no environmental assessment had been carried out as required by another directive. The problem was that if the programme were annulled, the Member State would be in breach of the first directive; whereas if it was upheld the breach of the other directive would persist. The judgment raises important questions of national procedural autonomy, whether procedural requirements can be overridden by substantive considerations and, more generally, whether there is a right for Member States to derogate from directives. It is argued that by allowing the Member State to temporarily uphold the validity of the programme the Court has reached the correct conclusion, albeit on the basis of an unsatisfactory argument.
Tobias Lock 'Taking national courts more seriously? Comment on Opinion 1/09' (2011) European Law Review 576-588
Abstract: Opinion 1/09 on the draft agreement for a unified patent litigation system reveals a degree of scepticism and distrust on part of the ECJ when it comes to the European Union's international co-operation, especially its participation in international frameworks for dispute settlement. The Opinion not only made it far more complicated to achieve the aim of a unified patent litigation system in Europe but is also of great constitutional significance. By placing emphasis on the role that the courts of the Member States play in the Union's legal order, the Court restricted the Member States' room for manoeuvre when organising their own court systems. Furthermore, it made it harder for the European Union to subject itself to the jurisdiction of an international court. This article will address the wider constitutional implications of the ECJ's Opinion and comment on the European Commission's latest proposal to rescue the agreement at issue.
Tobias Lock 'The Bundesverfassungsgericht on the Lisbon Treaty and Why the European Union Is Not a State: Some Critical Remarks' (2009) European Constitutional Law Review 407420
Abstract: The article critically assesses the German Constitutional Court's (Bundesverfassunsgericht) arguments on why the EU is currently not a state. It is argued that the EU has got a certain degree of Kompetenz-Kompetenz and that the Bundesverfassungsgericht's argument in that respect is not convincing. Furthermore, the article addresses the Bundesverfassungsgericht's discussion of the EU's democracy deficit and questions whether the court's argument that the EU is democratic precisely because it is not a state is convincing.
Tobias Lock, Bernhard W. Wegener 'Die Großen hängt man, die Kleinen lässt man laufen' (2005) Europarecht 802-808
Abstract: This case note discusses the ECJ's Berlusconi decision (joined cases C-387/02, 391/02, 403/02).
Tobias Lock 'The Future of EU Accession to the ECHR after Opinion 2/13: Is It Still Possible and Is It Still Desirable?', Edinburgh Law School Working Paper Series, 2015/18 (SSRN, 2015) [Download]
Abstract: Opinion 2/13 of the European Court of Justice on the European Union's accession to the European Convention on Human Rights has dealt a severe blow to the ambitions of the EU and the Council of Europe to put the relations between the EU and the ECHR system on a sure and formal footing. The CJEU held numerous aspects of the Draft Accession Agreement to be incompatible with the Treaties. Accession cannot therefore go ahead as planned. This article explores whether and how accession could still be achieved and if in light of the Court's demands it can still be maintained that it would improve the human rights protection of individuals in the EU. The argument proceeds in four steps: first, the article outlines the background to Opinion 2/13 and the basic tenets of the Draft Accession Agreement; second, it explores the technical options available to overcome the hurdles to accession, such as changes to the accession agreement, reservations, unilateral declarations, and Treaty change; third, it provides a diagnosis of the shortcomings identified by the Court and proposes possible solutions; and fourth, it expresses some doubts whether in light of these proposed solutions, accession is still desirable.
European Law, Policy and Institutions
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