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EU EXECUTIVE DISCRETION: AGAIN, IN TIMES OF EMERGENCY Joana Mendes PAGE
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EUROPE, YEAR 2020. WHATEVER HAPPENED TO THE RIGHT TO ASYLUM? Janine Silga and Catherine Warin PAGE
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EU Executive Discretion: again, in times of emergency Joana Mendes
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within which EU executive actors exercise discretion ought to be substantively mediated by law, and anchored in the general constitutional principles of EU law. For this reason, the developments in the area of economic and nancial law of the past years require a reection on the relationship between executive discretion and law, on academic approaches to discretion and on the role of judicial review.
The eurozone crisis has brought the discretion of the EU executive, in particular that of the European Central Bank, to the front pages. The discussion on the limits of its mandate is now returning in force, while the European Union lives through yet another unprecedented crisis. In each of their respective elds, both the Commission and the ECB stressed the exibility needed to tackle the economic downturn that is already in the making. These are undoubtedly exceptional circumstances, and few would dispute the need for an effective reaction. In fact, the lack of suitable reaction from the EU has been the main criticism heard in the past weeks. Nevertheless, wherever one may stand in this debate, the role of law in constraining and steering executive powers is far from a secondary issue. In a system that purports to abide by the rule of law, law ought not to be set aside in the name of ‘whatever it takes’, as necessary as it may be, not least because measures adopted in situations of emergency can open the path to a further reinforcement of executive powers in situations of normality. The past has shown as much. Changes to the constitutional and legal framework
The Gauweiler and Shortselling judgments have shown that the Court of Justice of the European Union (CJEU) is likely to accommodate legal interpretations that favour the capacity of executive bodies to act (the ECB in one case, the ESMA in another) in instances where that implies a signicant constitutional change, at least when the EU political institutions have backed up those executive powers. One may support or criticise this position on several accounts. Both judgments have sparked a rich body of commentary, which cannot be usefully summarised here. What I would like to underline is the conception of discretion of which these judgments are emblematic. Such concep-
Law ought not to be set aside in the name of ‘whatever it takes’
1. Joana Mendes is Professor of Comparative Administrative Law at the University of Luxembourg.
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That statement in Gauweiler blissfully ignores the deeply and undeniable political dimension of the ESCB’s exercise of discretion (as the case law often does). We do not need to go farther than the more recent Pandemic Emergency Purchase Programme to understand the ctitious character of such understanding of executive discretion. Of course, measures such as these require technical expertise that the competent executive body – as any executive body – needs to deploy with ‘all care and accuracy’, at the risk of breaching procedural principles. But it is also clear that they are often deeply imbued with value judgments, which are far from irrelevant from a legal and constitutional point of view.
tion, which pervades the CJEU’s case law on administrative discretion, is grounded on a distinction between technical discretion (a matter of cognition) and discretion proper (a matter of volition). The latter requires balancing the public interests at stake. It is necessarily and inextricably grounded on value judgments. The former entails the deployment of the executive’s expertise. It is purportedly devoid of value judgments. This distinction is untenable if we do not acknowledge the many grey areas between these different types of assessment. These occur, in particular, in conditions of uncertainty in which executive bodies act prospectively on the basis of often open-ended (albeit detailed) legal mandates. But it is this very distinction that enables the Court of Justice to hold that ‘nothing more can be required of the ESCB apart from that it uses its economic expertise and the necessary technical means at its disposal to carry out that analysis with all care and accuracy’ (Gauweiler, paragraph 75). The same understanding of the discretion of the EU nancial agencies, as essentially dependent on technical expertise, grounded the reasoning of the same Court when it endorsed the legality of the powers delegated to agencies in the Shortselling judgment.
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The perpetuation of the distinction between technical discretion and ‘discretion proper’ has one function in judicial review: it enables the Court of Justice to adjust its judicial review to different political contexts and, hence, to apply different variations to the standard of ‘manifest error of assessment’ when reviewing instances of discretion. Yet, separating the different components of discretion in distinct categories leads to a ction that, if maintained on the basis of the Court of Justice’s case law, misrepresents
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or involve policy choices, is not a discretiothe role that law ought to have in relation to nary power. Yet, once again, a formal catediscretion. Law is not only a set of procedugorisation of the different types of choices ral and substantive principles that can assist involved in decision-making – much in line the court in determining whether an executiwith the tenets of separation of powers – ve body deployed its expertise in a technineeds to take heed of the many grey areas cally correct way, in conformity with between interpreting indeterminate legal equally technically-informed legal requireconcepts and exercising discretion. Thus, ments. It is not only a set of tools that the for instance, dening the meaning to be gicourts can (and should) calibrate depending ven to ‘particular circumstances’ under the on the case that they have before it. Law reSingle Supervisory Mechanism Regulation, ects normative programmes and value judnamely those that can determine whether a gements that political processes have conbank is supervised by the ECB or by natioverted into legal norms, in accordance with nal authorities, is a matter of legal interpreconstitutional determinations and princitation. But it also depends on the Court of ples. From there emerge legally relevant criJustice’s and on the ECB’s view of how well teria to the value judgements that executive the ECB is placed to pursue the objectives bodies ought to engage with when exerciset by the regulation. sing their technical disInterpreting the law is cretion. Despite what some formulations in Law reflects normative programmes not devoid of policy its case law may conand value judgements that political choices that accommodate competing valuevey, the EU courts do processes have converted into legal laden assessments and not ignore these value norms, in accordance with judicial review does not judgements (see the constitutional determinations stand alone in determianalysis of Hanns Peter ning the meaning of Nehl here). law. Devising a segmented Distinctions between decisions resulting concept of discretion also plays out at anotfrom the interpretation of indeterminate leher level: the distinction between interpregal concepts, decisions entailing complex ting indeterminate legal concepts, on the factual assessments and policy decisions one hand, and exercising discretion, on the stemming from weighing competing inteother. Indeterminate legal concepts are ofrests, allow us to dissect the different segten part of the factual predicate of a legal ments of the exercise of discretion with a norm (for example, ‘if necessary to avoid view to determining what can be the scope signicant adverse effects on nancial staand limits of judicial review. They dissect bility’). Their interpretation is a matter of the legal aspects of decision-making that law, hence, as a matter of principle, subject can be subject to full review from the others to full judicial review of discretion. From hethat should remain the responsibility of adre follows the view that determining the ministrative decision-makers, subject, posmeaning of such concepts, as much as they sibly, to limited judicial review. These catemay rely on complex technical assessments
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Of course, deference in matters of legal interpretation does not invalidate the constitutional principle that the EU Courts say what the law is (Article 19 TEU). As a matter of EU law, the Court of Justice can always overrule the interpretation of the administrative authority, even if we were to accept that interpretation may involve discretionary choices. But this is only one side of the story. Courts react to administrative interpretations and how they do so will depend also on how administrative interpretations and practices inuence how law is evolving, through the complex interaction between different types of choices and assessments.
Interpreting the law is not devoid of policy choices that accommodate competing value-laden assessments.
gories have been created from a perspective of separation of powers that tends to ignore that the way law develops depends also on how administrative and executive actors develop their legal mandates, by interpreting legal provisions and exercising discretion. They also tend to ignore that, as well as the standard of ‘manifest error of assessment’, also the tenet that matters of law are subject to full review may tell us little about the degree of judicial review over the administrative interpretation of legal terms. The Court of Justice’s deference on issues of law may be justied for different reasons: the expertise involved in determining the content of undetermined legal concepts, the policy choices that legal interpretations may imply, the circumstances of the specic case and the context in which the judgment is issued. For this reason, but also because courts may not be called upon to adjudicate on the legality of the myriad of administrative interpretations that executive actors take on a daily basis, the categorical distinction between the exercise of discretion and the interpretation of indeterminate legal concepts does not preclude a situation in which the executive decision-maker denes, itself, the meaning of the legal conditions that delimit its authority to act (for example whether there are ‘signicant adverse effects on nancial stability’, as in the example above).
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Judicial review – even in times of normality – may give us a perhaps false sense of reassurance on the capacity of law to steer the exercise of executive discretion as an external constraint. Judicial review may not be effective in structuring the discretion that stems from the complex interaction between interpretation, policy choices and technical assessments. That was the case in Gauweiler (as Borger argued here), without doubt an exceptional judgment, but nevertheless telling about how the tools of judicial review may be used and of their limits (as Borger also argued).
Judicial review may not be effective in structuring the discretion that stems from the complex interaction between interpretation, policy choices and technical assessments
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Discretion is an essential part of the function of executive bodies and should remain so. But what we ought to require from executive bodies when exercising discretion must be more than just a careful and accurate use of their ‘expertise and [of] the necessary technical means at [their] disposal to carry out [their assessments]’ within the boundaries of a legality that they help shaping. Executive bodies (and not only the more politically salient central banks) may have a constitutive role in shaping the socially desirable goals of public action and the legal relationships that fall under their mandates. We ought to calibrate the ways in which the law they develop can be constrained by the legal normative and democratic premises that underpin the legal system of which they are part. The need to investigate the role of law in relation to discretion is more present than ever in a moment of emergency in which, at the state level, legal constraints are relaxed, and in which more is asked from the EU executive to make full use of the exibility that EU law allows for. We may be empowering the EU executive without having the means to make law one of its external constraints, at least if law becomes merely a set of tools to determine whether the executive’s technical assessments are correct.
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We may be empowering the EU executive without having the means to make law one of its external constraints
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Europe, Year 2020. Whatever Happened to the Right to Asylum? 1
Janine Silga and Catherine Warin
The Common European Asylum System (CEAS) is pulled in two opposite directions. On the one hand, the underlying logic of asylum lies in the international obligation of States to protect refugees. On the other hand, the governments of the European Union (EU)’s Member States are faced with the political imperative to ‘ght’ irregular immigration. This tension often puts individuals who are seeking asylum in a difcult position. Not only are many of them prevented from entering the European territory altogether, but even reaching the EU territory is no guarantee for them to obtain the protection they seek. This clearly stems from the recent events that have affected the CEAS so strongly that one may wonder whether the fundamental right to asylum is still effectively protected in Europe. These events are essentially threefold. First, they include recent geopolitical and judicial developments that are making it increasingly difcult for asylum seekers to access the EU territory. Second, this piece highlights the inherent aws of the CEAS that hinder its functioning internally. Last, we briey examine how some of the measures adopted in the EU to address the current coronavirus pandemic are amplifying the pre-existing inconsistencies of the CEAS.
Knocking on Europe’s door: mission impossible? Article 18 of the Charter of Fundamental Rights makes the right to asylum a fundamental right under EU law. Yet, according to EU secondary law, access to EU asylum procedures is only possible when an applicant for international protection – or ‘asylum seeker’ – is in the EU territory. As Article 3(1) of Directive 2013/32 (‘Procedures Directives’) clearly states, this instrument ‘…[s]hall apply to all applications for international protection made in the territory, including at the border, in the territorial waters or in the transit zones of the Member States, and to the withdrawal of international protection’. The consequence of this apparently unambiguous provision is that access to international protection is conditioned by access to the European territory, which seems to be ever more difcult, if not impossible. Indeed, while the labels between who is an ‘asylum seeker’, a ‘refugee’ or an ‘irregular migrant’ may work nicely on paper, their respective delineation is much more obscure in practice. Unfortunately, this obscurity is reinforced by the current position of European judges – or the lack thereof.
1. Janine Silga is a postdoctoral researcher at the University of Luxembourg. Catherine Warin is a lawyer at the Luxembourg Bar. We are very grateful to Edoardo Stoppioni for his helpful comments on an earlier draft of this article.
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The lack of a safe entry mechanism to apply for international protection
be assessed within this rather short period of time. From that, the Court concluded that the type of visa the applicants were requesting did not fall within the scope of EU law. While the reasoning of the Court was quite neat and orderly, it entailed the signicant consequence that the Charter of Fundamental Rights – and especially its Article 4 – could not apply. As the perfect copy of Article 3 of the European Convention of Human Rights (ECHR), Article 4 of the EU Charter
It is useful to recall the absence of a safe way for asylum seekers to enter the EU territory in order to claim international protection. In spite of the ourishing resettlement arrangements to receive more refugees from other regions of the world, the same is not true for asylum seekers prior to their access to the EU territory.
Access to international protection is conditioned by access to the European territory, which seems to be ever more difficult, if not impossible
states that: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’.
In 2017, following a formalistic – and probably opportunistic – reading of the Schengen Borders Code, the Court of Justice of the European Union (the ‘Court’) declared that humanitarian visas – for the purpose of entering the EU territory to apply for asylum – did not fall within the scope of EU law. In the X and X case, a Syrian couple and their three minor children had asked for a visa at the Belgian embassy in Beirut to be able to enter Belgium and ask for international protection there. Because the requested (‘Schengen’) visas have a maximum duration of 180 days, the Court stated that their asylum application(s) would probably not
The Court’s position was in clear opposition to the Opinion of AG Mengozzi who had suggested that the Court adopt a bolder position and allow for such visas to be granted to the applicants under EU law (2). By refusing to do so, the Court clearly left it to the Member States to dene their own visa policy in this respect and to individually assess the need for granting – or not granting – humanitarian visas in similar circumstances.
2. For a commentary, read this report by E. Brouwer of March 2017 published by the Centre for European Policy Studies.
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turn into closed camps for migrants (3). In view of this, the reaction of the European judges has been quite disappointing so far. As for the Court, the argument drawn from the scope of application of EU law has provided a ‘fortuitous’ solution once more. In this respect, the Court declared that the EUTurkey Statement was not part of the EU legal framework (4). This was in spite of its imThe ‘hotspots’ approach plementation being largely funded by the EU and carried out by EU institutions (5). By The so-called ‘hotspots’ approach was set doing so, it is quite clear that the Court absup by the EU Commission in its 2015 Eurotained from deciding on whether the indivipean Agenda on Migration. Implicitly, this duals who were impacted by this instrument approach redenes some portions of socould benet from the protection offered by called ‘frontline’ EU Member States’ terriEU law. Although the EU-Turkey Statement tory as legal ‘no man’s lands’. In other has been recently declawords, in ‘hotspots’, mired ‘dead’ in light of the grants who manage to In the absence of a common humanitarian crisis cuenter the EU territory rrently unfolding at the irregularly are divided EU response, the only option Greek-Turkey border, by categories: those that is left for aspiring asylum this has denitely not who are ‘genuine’ asyseekers is often to enter the led to questioning the lum seekers may apply ‘hotspots’ approach itfor international proEU territory irregularly self. tection, while those who are not are to be reWhile the Court might appear to be an unturned back either to their country of origin comfortable Pontius Pilate, the same canor to a – safe – third country of transit. not be said about the European Court of HuBehind the efciency rhetoric of this meman Rights (ECtHR), which has proved to chanism, the ‘hotspots’ approach is leading be unambiguously accepting of developing to de facto detaining human beings whose States’ practices to systematically detain status is unclear in EU Member States whoasylum seekers in transit zones (6). This se crumbling receptions systems face a lack clearly stems from the recent Grand Chamof solidarity (see below). This is especially ber decision in Illias and Ahmed v Hungary. true as regards the EU-Turkey Statement of This adds to the view that the ECtHR is see18 March 2016, which has led ‘hotspots’ to This judgment also damaged the credibility of the CEAS when it comes to ensuring refugee protection. In the absence of a common EU response, the only option that is left for aspiring asylum seekers is often to enter the EU territory irregularly. Even when this occurs, more obstacles are looming.
3. Read a European Parliamentary Research Report of June 2018 on this here. 4. Court of Justice ruling NG v European Council (T-193/16) and NG and others v European Council (Joined cases C-208/17 P to C-210/17 P). 5. Commission Decision of 24 November 2015, C (2015) 9500 nal, on the coordination of the actions of the Union and of the Member States through a coordination mechanism –the Refugee Facility for Turkey, and Commission Decision of 10 February 2016 (2016/C 60/03) on the Facility for Refugees in Turkey amending Commission Decision C(2015) 9500 of 24 November 2015.
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hin the scope of Article 4 of Protocol 4 of the ECHR, which lays down a general prohibition against collective expulsion. This case has been described as shocking by early commentators, especially as it seems to be ‘light years’ away from the ECtHR’s previous position in Hirsi Jamaa.
mingly turning a ‘blind eye’ to the often appalling reception conditions of asylum seekers in the so-called ‘hotspots’ (7). Blessing ‘push-back’ policies The recent Grand Chamber judgment N.D. and N.T. v Spain of 13 February 2020 on collective expulsion has brought an additional hurdle to the impossibility of migrants to access the EU territory.
Although this case may be shocking by its topicality, its factual background goes far back in time. Because of their peculiar geopolitical situation (9), Melilla and Ceuta – the other Spanish enclave in Africa – have both long been associated with dramatic if not tragic events related to the attempts of people to cross these EU external borders. As part of that, the practice of immediate removals (devoluciones en caliente) by the Guardia Civil has also been condemned, not only by civil society (10) but also by academics (11) and public institutions in Spain (12) and elsewhere (13).
On 13 August 2014, two migrants from Mali and the Ivory Coast respectively, had attempted to cross an EU external border – embodied by a triple fence barrier – located in Melilla, a Spanish enclave in Northern Africa and surrounded by Moroccan territory. Following a practice later sanctioned by a 2015 legislative act (8), the Spanish Guardia Civil would immediately return – ‘push back’ – people who had managed to cross the fence back to Morocco, without an individual assessment of their situation – including their possible need for international protection. In this decision, the ECtHR concluded that such situations did not fall wit-
Bearing this in mind, one key argument of the Spanish government was that N.D. and N.T. were not in need of international protection, nor did they face refoulement. In par-
6. The Grand Chamber Judgment in Ilias and Ahmed v Hungary: Immigration Detention and how the Ground beneath our Feet Continues to Erode by V. Stoyanova. 7. ECtHR rulings J.R. and Others v Greece, application no. 22696/16 and Kaak and Others v Greece, application no. 34215/16. 8. Institutional Law 4/2015 of 30 March 2015 on the Protection of Citizens’ Safety (Ley Mordaza). The constitutionality of this legislation is currently being examined by the Tribunal Constitucional. More here. 9. For a detailed analysis, read: Sara Iglesias Sánchez, ‘EU Citizenship and Migration Law: Reshaping the Balance of Multi-National Communities? The Case of Ceuta and Melilla’, European Journal of Migration and Law, vol. 18(3), 2016, pp. 259-274. 10. Among others, read: Le livre noir de Ceuta et Melilla; Derechos Humanos en la Frontera Sur 2014; and here 11. See for instance: Ángeles Solanes Corella, Contra la normalización de la ilegalidad: la protección judicial de los extranjeros frente a las expulsiones colectivas y las devoluciones “en caliente” | Against the Normalization of Illegality: the Judicial Protection of Foreigners Facing Collective Expulsions and Police “Push-Backs” | Solanes Corella | Cuadernos Electrónicos de Filosofía del Derecho, published on 21 December 2017; and the legal report ‘“Expulsiones en caliente”: cuando el estado actua al margen de la ley’. 12. See paragraph 39 on the position of the Spanish Ombudsperson’s Ofce. 13. See especially, paragraphs 55-59 and 152-156 of the judgment.
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This most shocking part of the ECtHR’s judgment consists precisely of justifying this push-back practice by the conduct of the applicants themselves
4 Protocol 4 of the ECHR on the grounds that their summary removal was ‘a consequence of their own conduct’.
ticular, the Spanish Government relied on the fact that neither applicants had actually made use of legal avenues to claim asylum, while attempting to cross the border fence(s). In doing so – and still according to the Spanish Government – the applicants had adopted an ‘illegal conduct’, which would create ‘an undesirable “calling effect” and […] result in a migration crisis with devastating consequences for human rights protection’. This would be especially the case if such conduct were legitimised by the ECtHR. This depiction of the applicants’ conduct as being inherently dangerous explains the reliance of the Spanish government on Article 51 of the UN Charter, which formulates the ‘States’ inherent right of individual or collective self-defence’ in case of an armed attack. Probably relying on the fact that both applicants were still alive – albeit clearly not thriving – the ECtHR’s decision echoes the argument of the Spanish Government. In particular, the ECtHR concluded that ‘the applicants […] placed themselves in jeopardy in the storming of the Melilla border fences […], taking advantage of the group’s large number and using force’. Therefore, there was no violation of Article
This most shocking part of the ECtHR’s judgment consists precisely of justifying this push-back practice by the conduct of the applicants themselves. In this respect, it is important to remember that such a conduct consists in unarmed individuals managing to cross ‘a six-metre-high, slightly concave, fence (“the outer fence”); a threedimensional network of cables followed by a second, three-metre-high fence; and, on the opposite side of a patrol road, another six-metre-high fence (“the inner fence”)’. One may clearly wonder on which side of the violent conduct the ECtHR chooses to lean… This rather biased position of the ECtHR is further supported by the reading of the separate opinions, which have been described by commentators as ‘add[ing] insult to injury’ (14). ‘Migration pressure’ may evoke the scary – and irrational – vision of ‘hordes’ of desperate people arriving in Europe to ‘force’ it to ‘share in its prosperity’. However, this vi-
14. ‘Unlawful’ may not mean rightless by M. Pichl and D. Schmalz, Verfassungsblog, 14 February 2020.
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sion should not obscure the fact that these ‘ows of irregular migrants’ are made up of individuals whose humanity also depends on the extent to which their rights are acknowledged. If judges fail to do so for them on the basis of ‘unlawful’ conduct, which still needs to be claried in our view, it should be feared that a similar reasoning could apply in other circumstances, even towards those who currently feel ‘safe’ in their own humanity. Unfortunately, this judgment sets a perilous trend regarding the way in which the ECtHR will deal with collective expulsion in the future. This is especially noticeable in the recent Asady decision, although the dissenting opinions in this latter case are much more promising for the protection of migrants against collective expulsion. To conclude on the ECtHR’s Grand Chamber decision in N.D. and N.T, it could be useful to recall the wise words of Joseph Carens: ‘Borders have guards and the guards have guns’... (15) Inside the (shaky) Fortress Even for those who succeed in setting foot on European ground, effectively exercising the individual right to asylum has become a challenge of its own. The legal framework of the CEAS includes minimum guarantees in terms of procedures and reception conditions (Procedures Directive and Reception Directive), as well as the Qualication Directive laying down the grounds on which the status of refugee, or the status conferred by subsidiary protection, may be granted to applicants for international protection. This package of common guarantees allows to hypothesise that asylum seekers will meet equivalent conditions no matter where they apply in the EU, and therefore justies the principle that one individual may only request asylum in one Member State. In addition, the Dublin III Regulation lays down the criteria for identifying that Member State and the procedures for transferring individuals to the ‘correct’ Member State. The 15. Joseph Carens, ‘Aliens and Citizens: The Case for Open Borders’, The Review of Politics, vol. 39(2), 1987, pp. 251-273, at p. 251.
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(and/or willing) to provide those applicants with conditions that match the standards laid down in the CEAS framework. The only country which has been at one point clearly recognised as suffering from systemic deciencies threatening the fundamental right of asylum seekers to be protected from inhuman or degrading treatment (16) is Greece – as per the ECtHR’s ruling M.S.S v B e l g i u m a n d G re e c e i n 2 0 11 ( n o . 30696/09). This was followed by the CJEU’s judgment in NS v Secretary of State for the Home Department (C- 411/10 & C493/10), which integrated into EU law this notion of systemic deciencies as a criterion for not transferring asylum seekers to a Member State. Since then, Dublin transfers towards Greece have been suspended, and the Commission’s 2016 Recommendation cautiously considering the possibility to resume these transfers has not been taken further.
main criterion for determining that Member State is based on identifying the country through which the person has entered the EU. If an individual applies for asylum in another Member State, the latter must transfer him/her to that country of rst entry. Therefore, those Member States that have external EU borders, especially by the Mediterranean Sea, automatically end up having to deal with a disproportionate number of asylum applications, compared to less ‘exposed’ (for example landlocked or northern) Member States. Practically, this means making procedures available to the asylum seekers but also providing them with minimum reception conditions (such as basic health care). These requirements translate into a nancial burden, as well as a political one (in terms of domestic politics at the very least). And in turn, the strain has generated acute challenges in terms of fundamental rights protection and Member State solidarity within the EU.
In fact, even though Greece is the only Member State where systemic deciencies have been expressly acknowledged on the European level, asylum seekers also rely on this notion to challenge transfers to other Member States, pointing at signicant deciencies in asylum procedures and reception conditions. Last year, the CJEU delivered the much-discussed judgments Jawo and Ibrahim in cases concerning transfers respectively to Italy and Bulgaria. The Court did not expressly rule on whether there were systemic deciencies in these Member States, but it did provide detailed instructions on how to apply this notion. Importantly, the Ibrahim case did not concern a ‘Dublin’
Protecting the fundamental rights of asylum seekers: the failure of mutual trust? The European Commission issued a reform proposal in 2016; yet, so far, there has been no agreement on such a reform, so that the CEAS has to keep functioning with legal instruments which are by now acknowledged as malfunctioning – especially the above mentioned Dublin III Regulation. As Member States in Southern Europe continue to be disproportionately strained by the arrival of asylum applicants, one of the consequences is that they are no longer able
16. This right is enshrined in Article 4 of the Charter of Fundamental Rights.
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transfer as the individuals concerned had already been granted international protection in Bulgaria (whereas the Dublin Regulation applies to individuals who do not yet have international protection in the EU); yet, the Court held that a parallel could be drawn, so that systemic deciencies threatening the fundamental rights of a beneciary of international protection could also be a ground not to send him back to the Member State where he/she had been granted that protection. Moreover, in Jawo, the Court accepted that the intensity of the prohibition of inhuman or degrading treatment is such that it ap-
fects, but also the much longer-term consequences of transferring a person to another Member State. In our view, this is a signicant step forward as regards the protection of fundamental rights and the right to an effective judicial remedy, since it broadens the powers of domestic courts to control the observance by Member State administrations of Article 4 of the Charter. However, it might also signal a regression of the principle of mutual trust, at least insofar as this concept justies the current division of judicial powers between Member States. Perhaps such a division no longer makes sense
plies regardless of whether the violation would occur at the very time of transfer, in the course of the procedure, or even following the positive outcome of the procedure and the granting of international protection.
in the increasingly integrated European administrative space, where decisions and practices of domestic administrative authorities have signicant impacts on individuals – especially asylum seekers – across Member State borders.
(17)
Jawo and Ibrahim thus take the responsibility of domestic courts very far: the latter must consider not only the immediate ef-
17. Case C-297/17, Ibrahim, para 87, and Case C-163/17, Jawo, para 88.
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The crumbling mirage of Member State solidarity
dinated response – if any – to the consequences of the pandemic.
The Covid-19 pandemic and the exacerAnother essential cornerstone of the CEAS bation of pre-existing issues is the principle of solidarity between Member States. The implementation of this prinA little over one month since the coronaviciple has been the object of deep disagreerus outbreak has been declared a global panments, as illustrated by the dispute over two demic, we look back at the measures taken 2015 Council decisions that organised the rewithin the CEAS and suspect – fear – that location of ‘quotas’ of asylum seekers from the current circumstances will only further Greece and Italy to other Member States in highlight the aws of this system. an attempt to ease the ‘burden’ for these two overwhelmed Mediterranean countries. In the context of global Three Member States, crisis, one of the Eurohowever, refused to pean Commission’s comply with these deciAsylum policy is no exception rst moves was to issue sions, which led to the a Communication on recent CJEU judgment to the general criticism that the temporary restricin case Commission v the EU has been slow to protion of non-essential traPoland, Hungary and vide a coordinated response vel to the EU. The right the Czech Republic. – if any – to the consequences to asylum is mentioned The Court has recalled in footnote no. 9 – as an on this occasion that acof the pandemic exception to the travel cording to Article 80 ban, which is ironic, sinTFEU, the principle of ce we know that there solidarity and fair shaare, anyway, no possibilities to travel lawring of responsibility between the Member fully to Europe in order to apply for asylum. States governs the EU’s asylum policy (18). The European Asylum Support Ofce isA contrario, however, the very existence of sued a communication only to announce this judgment is proof that this principle has that its staff was shifting to teleworking as been severely harmed. of 16 March… This judgment was coincidentally delivered In the absence of further guidelines conceramid the global health crisis that is impacning the implementation of the EU asylum ting all EU policy areas, including the EU policy (and admittedly, many other EU polimigration policy and the functioning of the cies), the crisis triggered by the pandemic CEAS. This crisis is severely testing the reahas led to heterogeneous responses from nality of the principle of solidarity. Asylum potional governments. licy is no exception to the general criticism that the EU has been slow to provide a coor18. Paragraphs 80, 97 and 180 of the judgment. See Silvia Bartolini’s ‘Analysis: Solidarity in Times of Crisis’ on EU Law Live..
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Ofcially ve weeks into the pandemic, ofcial conclusions concerning the CEAS were at last drawn on the EU level. On April 14, the European Council adopted a revised budget including funding dedicated to supporting Greece in the management of its borders – in the light of the situation at the Greek-Turkish border and of the health crisis. One can reasonably doubt, however, whether this will be sufcient to hinder an absolute disaster given the hygiene conditions in Greek camps (especially on the hotspot islands) where several thousand asylum seekers are currently being forced to stay.
Certain EU Member States – Georgia, Estonia, Romania – have declared a state of emergency allowing them to derogate from the European Convention on Human Rights, in application of Article 15 of the Convention; most other Member States have declared a state of national emergency. These decisions affect the functioning of public services and mean that administrative procedures, including asylum application procedures are slowed down if not totally frozen; that courts are functioning only for emergencies, with the notion of ‘emergency’ being very different from one country to another. The general guidelines on social distancing and the limitation on meetings also means that the access to a lawyer or more generally to legal advice is more complicated.
On 16 April, the Commission issued guidance on the implementation of EU provisions on asylum and returns of foreign nationals to third countries. We are glad that the Commission unambiguously excludes the possibility of circumventing the sixmonth time limit for Dublin transfers (19). We are however puzzled to read, at this time when non-essential travel is banned, that returns of third country nationals to their countries of origin ‘should continue as far as possible’ (20) (p. 18). Returning individuals, namely potential Covid-19 vectors, to countries with health systems incomparably mo-
Given the ban on non-essential travels, Member States have also been forced to suspend Dublin transfers (ofcially in Germany, implicitly in Luxembourg). The consequence is that some of the six-month time limit provided by the Dublin Regulation for transferring some individuals might be reached during the crisis, and that Member States where these individuals are currently staying will become responsible for processing their asylum applications. Some Member State governments were therefore reportedly trying to take unilateral measures in order to circumvent the six-month rule – a very questionable intention in terms of fundamental rights and legal certainty for these individuals (as highlighted by Pro Asyl concerning the situation in Germany).
The crisis triggered by the pandemic has led to heterogeneous responses from national governments
19. p. 8 of the Commission’s Communication. 20. p. 18 of the Commission’s Communication.
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re fragile than our own hardly seems like a way to live up to the EU’s responsibility towards the world (assuming, as here, that there is such as responsibility). On a more hopeful note… Drawing from the analysis above, one may conclude that the developments that are currently affecting the right to asylum in Europe are not promising – to say the least. It even appears that the internal contradictions of the CEAS may eventually tear it apart if more creative solutions are not found in a relatively short period of time. Indeed, the need to design safe and legal pathways to Europe is more pressing than ever. As to the articulation between mutual trust and fundamental rights, it seems that it will remain the ‘Gordian knot’ of the CEAS as long as it will not be clearly addressed in light of the principle of solidarity. At this point, it does not seem realistic that the CEAS will remain functional for much longer if it is not more strongly based on solidarity. As we write these lines, out of the 42,000 people on the Greek islands, 12 children have just been evacuated to Luxembourg, while 50 people should also be relocated to Germany (21). While this may hopefully be a rst step in the right direction, one should bear in mind that many more are needed to address the persistent deciencies of the CEAS.
21. Press release from the European Commission, 15 April 2020: ‘Migration: First unaccompanied children relocated from Greece to Luxembourg’.
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News Highlights Week 27-30 April 2020
AG Szpunar: Interpretation of ‘civil and commercial matters’ Monday 27 April
New Vice-President and Section President of the European Court of Human Rights
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Advocate General Szpunar advised the Court of Justice in Movic and Others (C-73/19) to interpret ‘civil and commercial matters’, an autonomous EU law concept, under Article 1(1) of Brussels I Regulation 1215/2012 as including an action brought by national public authorities against persons governed by private law established in another Member State, in particular, where the public authorities allege unfair commercial practices (through a declaration, prohibitory injunction, and orders for measures of publicity and penalty payments for future infringements).
Court of Justice: update on internal measures taken due to COVID-19 Monday 27 April
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Following the election of Robert Spano, the Judge in respect of Iceland, as its new President, the European Court of Human Rights (ECtHR) elected a new VicePresident and a new Section President. They will both take up their duties on 18 May 2020.
Commission launches invitation to comment on commitments proposed by Broadcom concerning TV set-top box and modem chipset markets Monday 27 April
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The European Commission launched an invitation to interested parties to submit comments on the commitments offered by Broadcom to address competition concerns in relation to its conduct in various TV set-top box and modem chipset markets. Interested parties can submit comments on the commitments within six weeks of their ofcial publication.
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The Court of Justice issued a press release summarising and updating measures taken internally in response to the COVID-19 pandemic. From 25 May, the Court of Justice aims, with the necessary sanitary measures in place, to transitionally resume its work, though to an extent teleworking will continue, based on measures taken by the Luxembourg authorities.
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Monday 27 April
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Pending preliminary reference on the meaning of the non-discrimination principle in conjunction with the freedoms of establishment and capital
AG Kokott: on the entitlement to an Article 132(1)(f) VAT exemption for a costs sharing group established in a nonMember State
Monday 27 April
Monday 27 April
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A request for a preliminary ruling (C-38/29) from the High Court of Justice of Andalusia, Spain, was published in the Ofcial Journal. The case, ZP v Delegación del Gobierno en Melilla, concerns the interpretation of Article 18 TFEU (principle of non-discrimination) and of Articles 49, 63 and 65 TFEU (freedoms of establishment and of capital)
Advocate General Kokkot issued her Opinion in Kaplan International (C-77/19), in which she advises the Court of Justice in a case concerning the Article 132(1)(f) VAT Directive 2006/112 exemption for services provided by ‘cost sharing groups’ (an independent group supplying services to members and distributing the exact expenses arising from the services).
ECtHR: Prohibition by Hungarian authorities to describe a political party as ‘far-right’ breached freedom of expression
Commission adopts banking package to facilitate lending in the context of the COVID-19 crisis
Tuesday 28 April
Tuesday 28 April
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A banking package made up of (i) an interpretative Communication on the EU’s accounting and prudential frameworks and (ii) targeted amendments to the EU’s Capital Requirements Regulations and EU banking rules was presented by the European Commission. The aim is to facilitate bank lending to households and businesses throughout the EU, to ensure that banks can continue to lend money to support the economy and help mitigate the signicant economic impact of the COVID-19 pandemic.
In ATV ZRT v. Hungary (application no. 61178/14), the European Court of Human Rights held that the applicant’s freedom of expression was infringed because the prohibition to describe a political party as ‘far-right’ was disproportionate and lacked a sufciently clear legal basis under Hungarian law.
Interior Ministers discuss various issues caused by COVID-19 Tuesday 28 April
European Data Protection Supervisor at the Committee for European Affairs of the Senate of the Republic of France
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The current Croatian Presidency of the Council of the European Union held a videoconference of the EU’s Interior Ministers. They exchanged views and opinions on various issues arising as a result of the COVID-19 pandemic, such as the continued supply of goods, public procurement, lifting of restrictions at borders, security challenges, contact tracing applications and also the need for information exchange concerning the lifting of containment measures in Member States.
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Tuesday 28 April
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Wojciech Wiewiórowski, the European Data Protection Supervisor, made remarks on the role of data and technology in the context of the COVID-19 pandemic at the Committee for European Affairs at the Senate of the Republic of France. Describing the issue of ‘historic importance’ for the consequences that may arise, he pushed for close engagement between public health experts, technical developers and data protection authorities.
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EU COVID-19 measures: Commission Guidance to mitigate clinical trial disruption in the EU Tuesday 28 April
EU and Mexico conclude negotiations for new trade agreement Tuesday 28 April
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A new and extensive trade agreement was concluded by the European Union and Mexico. Both parties can now proceed to its signature and ratication.
The European Commission issued harmonised EUlevel recommendations in Guidance on the management of clinical trials during the COVID-19 pandemic, to address the difculties faced in the continued operation and the participation of participants in clinical trials.
Tourism sector facing COVID-19 crisis: EU’s measures Tuesday 28 April
Court of Justice to rule on the requirements of national criminal procedures for implementation of the Common Fisheries Policy Tuesday 28 April
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The Court of Appeal of Ireland has asked the Court of Justice for a preliminary ruling (C-77/20) on the margin left to Member States when shaping criminal procedures for the implementation of the Common Fisheries Policy.
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In a meeting with Tourism Ministers, Commissioner Breton gave a speech outlining the four essential components of the EU’s response to the coronavirus crisis in support of the tourism ecosystem: liquidity, mobility, safety and a long-term strategy for a greener and more digital sector.
European Commission launches infringement procedure to safeguard the independence of judges in Poland Wednesday 29 April
Community and Plant Variety Office: extension of time limits in response to COVID-19 (updated) Tuesday 28 April
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The CPVO issued a statement with an update concerning the extension of time limits in response to the disruption caused by the COVID-19 pandemic. Among other measures, time limits are extended for outstanding debit notes, with a due date for payment until 21 September 2020 inclusive.
The Commission launched infringement proceedings against Poland regarding the new law on the judiciary of 20 December 2019, which entered into force on 14 February 2020. The Commission considers that the law undermines the judicial independence of Polish judges and is incompatible with the primacy of EU law.
Commission consultations on strategy for effective implementation of the Charter Wednesday 29 April
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The European Commission is organising four targeted consultations with key stakeholders for feedback to shape its strategy on the effective implementation of the Charter of Fundamental Rights. The strategy will be adopted in autumn 2020.
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General Court dismisses actions by Tilly-Sabco regarding export refunds on poultry meat
Coronavirus: Commission proposes measures to provide relief and flexibility to the transport sector
Wednesday 29 April
Wednesday 29 April
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The Commission adopted a package of measures to provide relief and exibility to companies in the aviation, rail, maritime and road sectors, with the purpose to support them in dealing with the consequences of the coronavirus outbreak.
The General Court delivered two judgments in separate actions brought against the Commission and the Council by Tilly-Sabco. It dismissed the case in T-437/18, considering that the Commission did not breach any rule of law intended to confer rights on individuals, with the result that it cannot be rendered liable to the economic operators concerned, as well as the action brought against the Council for annulment of Council Regulation 2018/1277 in T-707/18 to be unfounded.
International regulators pledge collective support to combat COVID-19 pandemic Wednesday 29 April
International medicines regulatory authorities around the world, endorsed by the European Medicines Authority, issued a joint statement calling for greater global collaboration to ght the COVID-19 pandemic.
Court of Justice to clarify EU requirements for the marketing of wine products Wednesday 29 April
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Wednesday 29 April
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The European External Action Service announced that it remains strongly committed to bringing the EUMercosur Association Agreement (removing barriers to trade in Mercosur markets) into force as soon as possible, and welcomed Argentina’s decision to continue negotiations.
EU- G5 Sahel joint declaration on the security, stability and development of the Sahel Wednesday 29 April
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A pending request for a preliminary ruling (C-86/20) from the Court of Justice, made by the Regional Court of Brno, Czech Republic (Krajský soud v Brně), seeks the interpretation of EU rules on the common organisation of the market in wine.
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Statement on the commitment by Argentina to continue negotiations on the EU-Mercosur Association Agreement
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The European Council and G5 Sahel Member States released a joint statement covering four areas related to security and development in the region: ghting terrorism; strengthening security and defence; internal security and criminal justice; and increasing development efforts.
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Deadlines at EUIPO further extended due to COVID-19 Thursday 30 April
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In response to the exceptional circumstances created by the COVID-19 outbreak, the EU Intellectual Property Ofce (EUIPO) announced a further extension of all deadlines expiring between 1 May 2020 and 17 May 2020 inclusive until 18 May 2020. The extension, the effect of which is automatic, covers all procedural deadlines that affect all parties in proceedings before the EUIPO.
Court of Justice clarifies the scope of passenger’s rights in the event of denied boarding by air carriers Thursday 30 April
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The Court of Justice gave its judgment in Blue Air – Airline Management Solutions (C-584/18), a case on the interpretation of EU law when a third country national is denied boarding by an air carrier established in a Member State due to visa requirements, and where the passenger seeks compensation for the costs of the ight, accommodation booked, and exams that could not be taken as a result.
Court of Justice: nationality criteria in double taxation conventions are in line with non-discrimination and free movement rules
ECtHR: Ireland lacks effective remedies for complaints about excessive length of proceedings
Thursday 30 April
Thursday 30 April
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The Court of Justice handed down its judgment in HB v INPS (C-168/19) and IC v INPS (C-169/19) recalling that, within the framework of double taxation conventions, Member States are free to lay down the criteria for the allocation of tax jurisdiction between them, and may allocate tax jurisdiction on the basis of criteria such as the paying State or nationality.
AG Sharpston: Defeat devices adjusting upwards the operation of emission control system of diesel engine vehicles in breach of Regulation 715/2007 Thursday 30 April
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According to Advocate General Sharpston’s Opinion in the preliminary ruling case CLCV and Others (C693/18), a device that adjusts upwards the operation of the emission control system of diesel engine vehicles when they are being tested for approval is a defeat device under Article 3(10) of Regulation No 715/2007, and is in breach of that Regulation which expressly prohibits the use of such devices from reducing the effectiveness of the emission control system.
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In its judgment in the leading case Keaney v. Ireland (application no. 72060/17), the European Court of Human Rights unanimously held that Irish law does not provide for effective remedies for complaints about excessive length of proceedings, thereby breaching Articles 6(1) and 13 of the European Convention on Human Rights.
Court of Justice rules that officers working on-call outside normal working hours, while surveilling external Schengen borders are conditionally protected by Working Time Directive Thursday 30 April
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The Court of Justice ruled that the Working Time Directive 2003/88 applies to members of a special unit of a Member State’s police force carrying out specic missions including on call-duties outside normal working hours during border patrol at external Schengen borders (Készenléti Rendőrség, C-211/19).
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Advocate General’s Opinion on the interpretation of EU rules on procedures for international protection
CJEU ruling on the scope of tax powers of Member States under the freedom of capital
Thursday 30 April
Thursday 30 April
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The Court of Justice ruled in Société Générale (C565/18) that Article 63 TFEU does not preclude a national tax on nancial transactions relating to derivative nancial instruments on the parties to the transaction, irrespective of (i) the place where the transaction is concluded, or (ii) the State of residence of those parties and of any intermediary involved.
In an urgent preliminary ruling, Ministerio Fiscal (C36/20 PPU), Advocate General Szpunar advises the Court of Justice whether a judicial authority which has jurisdiction under national law to rule on the admission of third-country nationals to a detention centre, may be regarded as ‘another authority’ likely to receive applications for international protection within the meaning of Article 6(1) of Directive 2013/32.
AG Bobek: legal test to determine whether Posted Workers Directive applies to workers providing services in international road transport sector Thursday 30 April
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Advocate General Bobek set out the legal test to determine whether the Posted Workers Directive covers workers who are drivers carrying out services in the international road transport sector, in Grand Chamber case Federatie Nederlandse Vakbeweging (C-815/18).
Analyses & Op-Eds In a tight spot, the Court of Justice delivers a lopsided judgment: NH v Associazione Avvocatura per i diritti LGBTI — Rete Lenford By Jeffrey Miller
The relevance of substance over form in meeting the objective of a true and fair view in companies’ annual accounts, A comment on Wagram (C640/18)
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By Giovanni Strampelli
Op-Ed on the meaning and implications of the recent Grand Chamber judgment in C-507/18, where the Court of Justice embraced a surprisingly broad interpretation of the scope of EU anti-discrimination law at the expense of downplaying potential threats to freedom of expression.
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Op-Ed on the Court of Justice’s judgment in Wagram, where the Court sheds light on practical implications of the true and fair view principle and, in particular, claries the interplay of that principle with assets’ valuation principles laid down in Directive 78/660 on the annual accounts of certain types of companies (now repealed by Directive 34/2013).
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Measures adopted by the European Commission to mitigate the impact of COVID-19 in the banking sector
The COVID-19 crisis : EU public procurement legal framework at a crossroads
By Pablo Biscari García
By Stéphane de la Rosa
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Analysis of the impact of COVID-19 on the banking sector, and the recent banking package presented by the European Commission, including a Communication and temporary amendments to Capital Requirement Regulations 575/2013 and 2019/876.
Op-Ed on the transformation of EU public procurement law under the exceptional circumstances created by the COVID-19 outbreak, in the context of which the use of public contracts is on the front line to meet the current most essential needs, especially for the supply of medical devices.
Library - Book Review WOJCIECH SADURSKI
By Michał Krajewski
Oxford University Press, 2019, 304 pp.
Poland’s Constitutional Breakdown
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Exhaustive review of the rst such extensive and detailed account of the Polish case. A book that: (i) provides a comprehensive account of the anti-constitutional populist backsliding in Poland, (ii) explains its causes in a country ‘widely, and justiably, applauded for its achievements in democratic consolidation, human rights, and judicial independence’, and (iii) considers the way out.
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