Nº20 JUNE 6
2020
weekend
edition stay alert keep smart
HEARINGS 1.1:
REMOTE APPEARANCE BEFORE THE COURT OF JUSTICE Michal Kianička
EULAWLIVE stay alert keep smart
11
EU LAW LIVE 2020 © ALL RIGHTS RESERVED
Nº20 · JUNE 6, 2020
weekend
edition stay alert keep smart
Hearings 1.1: remote appearance before the Court of Justice 1
it has chosen to organise in-person hearings in Luxembourg. It is nonetheless not business as usual yet. It hardly can be. The fact that we are still far from ‘normal’ is conrmed by the numbers, the instructions issued by the institution and the impressions of the stakeholders (2).
The end of lockdown seems to have begun around Europe, yet there is still a long way to go. Some countries proceed ambitiously, others remain careful. The Court of Justice of the European Union (‘the CJEU’) was also hit by the crisis and has been forced to considerably adapt its modus operandi. In order to continue its activities and keep its wheels turning, it has for instance introduced a widespread system of remote working and simplied how to open an e-Curia account. As for the oral part of its procedure, it had suspended hearings from 16 March 2020. This piece focuses on the recent recommencing of hearings at the end of May 2020. It discusses what has been done and how, particularly regarding the use of video conferences.
As for the number of hearings, three were held in the rst week and another four should have taken place in the second week after the re-opening. These numbers are far from the regular pace. According to the 2019 Annual Report, the Court of Justice alone held 295 hearings in 2018 and 270 in 2019. However, in the coming weeks, the calendar of the CJEU should become denser. Likewise, the hearings and physical attendance have been substantially affected by the present circumstances. The CJEU informed the parties before the Court of Justice and the General Court about the sanitary measures introduced in order to ensure that hearings can take place about a week before the relaunch of the hearings.
I. Back to ‘normal’ hearings After the involuntary break of more than two months, the CJEU resumed its hearings on Monday 25 May 2020, despite some alleged resistance, even translated into ofcial requests to postpone the date. It has not decided to hold proper remote hearings. Instead,
1. Michal Kianička was a member of the Slovak EU litigation team from 2010 to 2020. In Weekend Edition No. 13, EU Law Live also published a Long Read by him called ‘Streaming of hearings: a tough call for the Court of Justice’. 2. I wish to thank all those who shared valuable insights, ideas and information relevant to the topic, be it publicly, especially on social media, or with me personally, as well as everyone from EU Law Live who helped to shape the nal version of the article. Any eventual mistakes remain my own.
EULAWLIVE stay alert keep smart
2
Nº20 · JUNE 6, 2020
weekend
edition stay alert keep smart
are either obliged to wear their own, or may even, exceptionally, be authorised to plead without wearing a gown. Tables, microphones and earphones are disinfected after each hearing, or even during if necessary.
Access to the premises of the institution is limited and regulated. Every individual must undergo a temperature check and declare that they are neither a carrier of COVID-19 nor that they have been in contact with a carrier in the preceding two weeks. Apparently, persons having a temperature higher than 38°C will not be permitted to enter the buildings. Although not expressly mentioned, the same would probably go for persons refusing to sign the mentioned declaration. Protective face masks are obligatory and may be provided by the security personnel upon request. Some participants to the hearings have even reported that on certain doors, there are special handles installed which can be used with one’s elbows.
The registry of the General Court has declared that in order to facilitate travel to Luxembourg, it can, upon request, issue representatives with a document certifying that a hearing is being held. Although not explicitly stated, the registry of the Court of Justice would most probably be able to provide a similar document.
II. Remote video participation
Concerning the course of the hearings as such, there must be a distance of two metres between everyone. Even the chairs of the judges have been moved apart. Lecterns have been removed and parties’ representatives, seated one per table, are to present their oral pleadings from the place assigned to them. It is more than clear that any of the hearings in Opinion cases heard by the full Court of Justice, such as the CETA Opinion, would be impossible under the current setup. The bench is simply too short for so many judges, let alone the number of tables needed for the agents of Member States and EU institutions. Even the Grande Salle is not big enough for that. Contrary to usual practice, no introductory meetings ‘in the back’ between the judges and the parties’ representatives before the start of the hearing take place now. The Court has also declared that it will not provide parties’ representatives with gowns. They
A. Terra incognita? In the past, various expressions described distant and unexplored, or maybe even dangerous, territories on the edges of maps. Less dramatic terms were ‘terra incognita’ or ‘terra ignota’. More gurative and metaphorical terms included the famous phrases ‘here be lions’ (‘hic sunt leones’), or even ‘here be dragons’ (‘hic sunt dracones’) (3). On the EU law map, it is not appropriate to use one of these terms to describe the use of video conferences as a tool by the courts and tribunals. It is neither foreign to EU law as such, nor to the case law of the CJEU. Several secondary EU law instruments expressly mention the use of video conferences by the courts. One example is the so-called taking of evidence regulation, ofcially entitled
3. Nowadays the term ‘here be dragons’ is used in computing. As a comment put in a code, it indicates that the next code’s section somehow works, even though it is not clear why. It is meant to discourage anyone from editing the code in the fear of it being broken.
EULAWLIVE stay alert keep smart
3
Nº20 · JUNE 6, 2020
weekend
edition stay alert keep smart
Several secondary EU law instruments expressly mention the use of video conferences by the courts
paragraphs 14 and 67 of the judgment, C491/10 PPU).
Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters. It was adopted following a legislative initiative by Germany. In its text, the Regulation refers to the use of video conferences twice – in Article 10(4) and in Article 17(4). Its original version of 2001 already included those two provisions, although the latter was moderately changed in course of the amendment of the Regulation in 2008. The European Commission proposed another amendment of the Regulation in 2018. The proposal is currently under consideration by the colegislators. The explanatory memorandum states that ‘videoconferencing is rarely used to hear persons in another Member State’ and thus its proposal ‘addresses the need for modernisation, in particular digitalisation and the use of modern technology in the crossborder taking of evidence’. The impact assessment by the European Commission accompanying the proposal intensively discusses the issue of the use of video conferences. Article 10(4) of the Regulation also seemed to have played a role in Aguirre Zarraga (see
EULAWLIVE stay alert keep smart
Another example of an EU secondary law instrument referring to the video conference as a tool for courts and tribunals is the socalled European Investigation Order (EIO) Directive, its full title being Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters. The Directive was adopted on a proposal by Austria, Belgium, Bulgaria, Estonia, Spain, Slovenia and Sweden. Its recitals 24, 25 and 26 explicitly refer to a hearing by video conference. The concept is then elaborated in Article 24 - ‘Hearing by videoconference or other audiovisual transmission’. As stated in the explanatory memorandum, the provision (in the draft it was Article 21) was inspired by Article 10 of the Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of the European Union. Sometimes, the case law of the CJEU mentions video conferences despite the lack of
4
Nº20 · JUNE 6, 2020
weekend
edition stay alert keep smart
express reference to it in the relevant legal framework, such as in Radziejewski (C-461/11). In that case, a residence requirement was a precondition for eligibility for Swedish debt relief. Advocate General Sharpston in her Opinion examined, among other things, whether the residence requirement went beyond what is necessary to achieve the objective of obtaining complete and correct information about the debtor. In paragraph 65, she arrived at the conclusion that there appear to be less restrictive means available. As an imaginable way out, she also identied, in footnote 18, the use of video conferencing.
B. Legal Framework The procedural legal framework of the CJEU does not expressly mention the possibility to conduct a hearing (whether in part or as a whole) in a virtual way, for instance via teleor video conference. On the other hand, there seem to be no legal obstacles either. When the Statute of the CJEU (‘the Statute’) and the Rules of Procedure of the Court of Justice as well as those of the General Court speak of the oral (part of the) procedure, oral observations, oral pleadings, oral procee-
The applicable rules leave enough room to conduct the oral part of the procedure remotely, organising a virtual oral hearing or letting the parties plead via video conference
The use of video conferences by the CJEU in its own judicial hearings had indeed been unexplored territory for the Institution for quite some time
dings, oral statements, oral testimony or simply the hearing, there is no explicit reference to a physical appearance in person before the CJEU. Thus, the applicable rules leave enough room to conduct the oral part of the procedure remotely, organising a virtual oral hearing or letting the parties plead via video conference, as long as it will remain ‘oral’ and the parties will be ‘heard’ in the proper sense of word. Even the use of words like to ‘attend’ or to be ‘present’ do not alter this conclusion.
Having said that, the use of video conferences by the CJEU in its own judicial hearings had indeed been unexplored territory for the Institution for quite some time. Considering the present situation, the CJEU has nonetheless decided to explore this unknown land and, exceptionally and for the rst time, to allow live remote participation in the oral part of the procedure via video conference (‘remote video participation’).
EULAWLIVE stay alert keep smart
5
Nº20 · JUNE 6, 2020
weekend
edition stay alert keep smart
matière scale) (C-245/19 and C-246/19). In both cases, an ofcial request addressed to the Court of Justice was necessary, explaining why the party is not able to attend the hearing, but still wishes to address the Court orally. Following that request, the remote video participation was formally allowed by the President. Viable reasons that might convince the Court, by way of example, include the travel restrictions put in place by the governments, based on public health considerations, under which there are no exceptions for business travel or civil servants.
It is in fact the same difference as between electronic submissions and submissions on paper. Both are ‘written’ even though those submitted electronically via e-Curia lack physical form. It is true that both Rules of Procedures had to be adapted so that the CJEU was able to introduce e-Curia. The reason for that however was that they were too narrow, as they both required the handwritten signatures of the parties’ representatives, or as the case may be the parties themselves. The Rules of Procedure of the Court of Justice in Article 57(1) still require that today, whereas in the meanwhile, e-Curia has been made obligatory in proceedings before the General Court. Conversely, the Statute has not made any explicit reference to the handwritten signature, so no adaptations were necessary to accommodate e-Curia, either as an equivalent or even as a replacement to submissions on paper.
From the technical point of view, the CJEU does not rely on any of the solutions widely known and commonly used these days, such as Zoom, Webex, Teams or Skype, to name only a few (4). Instead, it works with a specic professional video collaboration platform, likely due to security reasons and in order to maintain control. The remote video participants were not connected only for the duration of their pleadings but could follow the hearing from the beginning until the end.
C. Experience Some readers may already have noticed pictures of a giant screen in the Grande Salle, placed on the left side of the wall behind the bench. By means of that screen, some parties indeed have already had the opportunity to address the CJEU with their oral observations remotely via video conference. This includes France and Spain, in the rst week that the hearings resumed. The very rst was France on Monday 25 May 2020 in VG BildKunst (C-392/19). Then, the day after on Tuesday 26 May 2020, France and Spain both pleaded remotely in joined cases État du Grand-duché de Luxembourg (Droit de recours contre une demande d’information en
The CJEU cares about the remote video participation working smoothly and for it to resemble, to the widest possible extent, physical presence. Not leaving the incident-free operation to chance, a series of tests preceded both hearings mentioned above. Only their successful conduct enabled the actual remote video participation and oral intervention of France and Spain. In fact, the third Member State supposed to participate in a hearing via video-link during the rst week was Belgium.
4. In fact, many interesting products and solutions seem to be available on the market and were until recently probably known mostly to experts or enthusiasts, such as Lifesize, Tixeo and others. Even platforms addressing the issues of multilingualism seem to exist, like Kudo.
EULAWLIVE stay alert keep smart
6
Nº20 · JUNE 6, 2020
weekend
edition stay alert keep smart
It should have pleaded in case SABAM (C372/19) in a hearing on Wednesday 27 May 2020, but as the tests did not work out well, in the end it did not go ahead.
one is probably the will and capabilities of the presiding judge. The more attentive she or he is, the better it works. Not to be forgotten are also the difculties that could be caused by a larger number of remote video participants. The more of them attending the hearing simultaneously, the more difcult would it be. Not only would it be more complicated to keep everything working and stable from the technical point of view, but it would also be harder to moderate the hearing and to keep everything clear.
Furthermore, the Court reportedly paid proper attention during the hearings to the remote video participants and their attendance. After having delivered their speeches, they were not forgotten and were really involved in the hearing. Where appropriate, they were given the opportunity to reply to questions and even to react with a nal reply. While having them on board may have caused a slight slowing down of the hearings, it apparently was not to such an extent that the participants would perceive it negatively and would complain about it.
On the other hand, the remote video participation still lags behind the in-person experience in various ways. Three major drawbacks can be mentioned, based upon experiences up to now. First, the participants to a hearing before the CJEU physically present in the courtroom can freely choose from the translation channels available for that hearing. Anyone who has had more than the occasional experience of pleading in Luxembourg and who speaks more languages than her or his mother tongue would conrm that this opportunity is
Overall, the hearings attended remotely by certain participants seem to have worked well. Of course, such a smooth run depends on several factors. It is necessary to have a technically reliable and well-functioning solution and equipment on all sides. Apart from that, the most crucial
EULAWLIVE stay alert keep smart
7
Nº20 · JUNE 6, 2020
weekend
edition stay alert keep smart
operable equipment and/or an internet connection with adequate bandwidth and stability.
very useful. By contrast, the remote video participants are limited to a single preselected language channel. They are not allowed to change it during the hearing, nor can they listen to more languages in parallel.
D. Alternatives
Second, being in the courtroom gives the participants the opportunity to follow the reactions of other participants to own and foreign submissions, be it the reactions of the judges, the référendaires, where applicable of the Advocate General or of other parties’ representatives. Sometimes, body language can reveal a lot. Conversely, the same opportunity is not given to remote video participants. Their view seems to be limited to the general overview of the hearing room and/or to the view of the person speaking, be it an agent or a lawyer pleading or a Member of the Court asking a question.
Apart from further postponing the hearings and thus further delaying the delivery of justice, the CJEU had few alternatives available in order to proceed with cases, while ensuring maximum respect for the principle of the equality of arms. It could have decided the cases based on written statements only, without holding a hearing (5). If regular submissions would not sufce, the judges could either allow for an additional round of memoranda or ask the parties questions and let them reply in writing. In some cases, the CJEU allegedly used at least the latter option during the lockdown. In the alternative, when holding an in-person hearing, it could enable the party whose representative could not come to Luxembourg to submit its comments in written form. Such a ‘speech’ could be read out loud during the hearing in Luxembourg, as the interpreters did in the case of the failed videoparticipation of Belgium, and the Court could then take it into account when determining the case.
Third, the technical intricacies linked with remote video participation on the side of the parties and their representatives might be dissuasive or even hinder participation. Not everyone is necessarily familiar with modern technologies to the extent needed for smooth operation of the respective tool. Even in the case of an established connection, there may still be some hitches, such as echoes or drop-outs. EU Member States and Institutions, as well as law rms, might require the assistance of already overwhelmed IT departments. Moreover, as proven by the example of Belgium, the experts may not succeed either. Finally, not everyone may have the necessary, compatible and inter-
Comparing these two possibilities with the remote video participation, the latter proves the better option, if the hearing is necessary, let alone when it takes place anyway.
5. Of course, the Court of Justice abandoning the hearing would be legally precluded by Article 76(3) of the Rules of Procedure of the Court of Justice, if an interested person referred to in Article 23 of the Statute, who did not participate in the written part of the procedure, had submitted a reasoned request for a hearing. In such a case, the Court of Justice would be obliged to convene a hearing. Similarly, it follows from a contrario Article 106(3) of the Rules of Procedure of the General Court that the latter cannot dispose of the hearing if any of the main parties to the case asked for it.
EULAWLIVE stay alert keep smart
8
Nº20 · JUNE 6, 2020
weekend
edition stay alert keep smart
pandemic. What varies is the extent to which the courts hear cases remotely. Indeed, in some areas it remains very difcult, such as in criminal cases, whereas affairs of a certain type just cannot wait, like family cases. What also differs are the technologies and platforms used.
Although not ideal, it still provides the possibility to join and to participate in an interactive debate with the Court and the other parties, listen to what has been said and react to it if necessary.
III. (No) remote hearings Numerous resources provide valuable information about the trend.
The title of this article deliberately mentions hearings 1.1 rather than hearings 2.0. It is so because the CJEU has chosen a selective and limited functionality update over a complex one. Instead of going for fully virtual hearings without anyone being present in a physical courtroom, it merely added a remote component to the classic in-person hearings.
Helpful are the outputs by national authorities, such as the data published by Her Majesty’s Courts and Tribunal Service, an executive agency sponsored by the Ministry of Justice responsible for the administration of criminal, civil and family courts and tribunals in England and Wales. Invaluable are also comparative studies, such as the hot-off-the-press report of April 2020 called ‘Virtual Civil Trials’, put together by the foreign law research staff of the Law Library of Congress. It explores the law
A. Phenomenon There is an uptrend in proper remote hearings, conducted fully via phone or video, all over the world, as a result of the COVID-19
There is an uptrend in proper remote hearings, conducted fully via phone or video, all over the world, as a result of the COVID-19 pandemic
EULAWLIVE stay alert keep smart
9
Nº20 · JUNE 6, 2020
weekend
edition stay alert keep smart
The International Court of Justice (‘the ICJ’) announced public hearings by videoconference on 29 May 2020. They will open on 30 June 2020 and will take place in the Great Hall of Justice, with the physical presence of some of members of the ICJ. Unsurprisingly, the media and the public will be able to follow the proceedings live through a stream on the internet, as the ICJ has been streaming its oral hearings for years.
of 25 jurisdictions and covers arrangements during the actual pandemic. Finally, the website Remote Courts Worldwide provides a very useful overview. It has been set up by the Society for Computers and Law to enable justice stakeholders of all kinds to share their experiences of remote alternatives to traditional court hearings. So far, the website has collected resources on the remote delivery of justice from more than 50 jurisdictions. Regarding the EU, the website features references regarding Austria, Germany, Hungary, Ireland, Italy, The Netherlands, Poland, Romania and Spain.
In the eld of international commercial arbitration, measures to conduct proceedings remotely have been widened and proper virtual hearings take place. Nothing new in fact. Out of 200 hearings held by the International Centre for Settlement of Investment Disputes (‘the ICSID’) in 2019, 60% took place remotely, including by video conference, mostly rst sessions or case management conferences. A signicant number of the ICSID hearings also have a virtual component to them, like witnesses or experts participating by video conference. The Arbitration Rules 2012 of the Permanent Court of Arbitration (‘the PCA’) explicitly regulate the possibility to hear a witness or an expert through video conference in Article 28(4). When it comes to technical solutions, the ICSID relies on the Cisco Webex platform, apparently for its capabilities, its straightforward functioning and due to security reasons, as it offers end-to-end encryption. By contrast, the PCA seems to have opted for Zoom.
Moving on to some concrete examples, the United States Supreme Court, well-known for its reserved attitude towards modern technologies, held several remote hearings in May 2020 in a limited number of previously postponed cases. All were conducted via teleconference with all justices and counsel participating remotely. One of the justices even did so in part from the hospital. The US Supreme Court provided selected media with an audio live feed that was then distributed further and live streamed on various platforms. The audio of the oral arguments and transcripts are available on the Supreme Court’s website. The Supreme Court of India, by order of 6 April 2020, issued guidelines for courts to use video conferencing during the COVID19 pandemic. Among other things, it authorised itself and all High Courts to adopt measures required to ensure the robust functioning of the judicial system using video conferencing.
EULAWLIVE stay alert keep smart
B. Perception Some are enthusiastic about remote hearings via video or teleconference. Allegedly, it brings various benets, including savings in
10
Nº20 · JUNE 6, 2020
weekend
edition stay alert keep smart
No doubt the courts, tribunals and other dispute settlement bodies now have a unique opportunity to test the modern tools in their entirety in real life, and to collect valuable data and experience. Virtual hearings are certainly better than no hearings at all, but the practice seems to conrm that they cannot fully match normal hearings. What brings it right to the point is the metaphor that a remote hearing (or any form of remote participation to the hearing) is just a spare tyre, rather than a full replacement!
time and cost. It also brings the courts closer to those who can otherwise access it only with serious difculty. Ultimately, it enables personal contact to be avoided and for compliance with the social distancing rules, and thus helps to prevent the spread of COVID19.
Others have mixed, or even negative feelings, and thus remain rather sceptical (6). Remote hearings present a challenge to some of the well-established procedural principles and standards. One of the C. Wrong choice? aws mentioned was the absence of formality and Virtual hearings are certainly Is the CJEU to blame ritual or no sense of better than no hearings at all, for currently choophysical hierarchy or dissing hearings 1.1 over tribution of power. Simibut the practice seems to hearings 2.0? larly, some lawyers in the confirm that they cannot fully United States even seem match normal hearings No, it is not, as long as to have forgotten that heatwo conditions are fulrings via video are not lled. First, the heajust any regular video rings must be safe for calls but are supposed to everyone appearing in-person. The applied be real court hearings. As reported on and crisanitary measures must reect the actual siticised, appearing shirtless or even still in tuation and must be strictly enforced. Sebed is just wrong. Lastly, the participants to cond, every party that wants to participate, the hearing cannot connect in the same way but cannot be represented in person, should via video as they can in the courtroom. The get the opportunity to attend the hearing rehearing is thus deprived of the usual interacmotely via video. On both fronts, the CJEU tion. This might be less of a problem in cerseems to have done its best, at least so far. tain cases, as in a dispute on a purely legal point, whereas it might be a cardinal issue in In fact, some of the drawbacks of proper reother affairs, such as the ones heavily relying mote hearings might even not be substantiaon witnesses. The more personal, the more ted when having only certain participants problematic. connected via video. By way of illustration, there should be no (complete) lack of formality and ritual. Those appearing physically 6. From the pre-COVID-19 period, see for example C. Chanais, Open Justice and the Principle of Public Access to Hearings in the Age of Information Technology: Theoretical Perspectives and Comparative Law, or R. Magnus, New Media in the Courtroom: Benets and Challenges, both in: B. Hess, A. Koprivica Harvey, (eds), Open Justice. The Role of Courts in a Democratic Society, 2018.
EULAWLIVE stay alert keep smart
11
Nº20 · JUNE 6, 2020
weekend
edition stay alert keep smart
The CJEU itself seems to perceive remote video participation as an exceptional measure
perceive it in the courtroom. At the same time, it is conveyed through the view of the courtroom and the bench to those participating remotely.
IV. Outlook I dare to say that personal preference will play an important role here. It is in fact very similar as with the hearings as such, whether they should or should not take place. No doubt that the requirements of the right to be heard and the proper administration of justice have their place here. They may eventually be the reason why in a particular case, a hearing must take place. Still, it cannot be denied that while some judges and parties’ representatives like the hearings and deem them useful or even indispensable, others just do not. The latter may thus even welcome a hearing being replaced by an additional round of written submissions. From those who prefer the hearings, one part may choose video as the tool best suiting them, whereas the other part would favour the inperson experience.
In the following days and weeks, we will probably witness more remote video participation in hearings before the CJEU. As long as it remains extremely complicated or even impossible for the parties’ representatives to reach Luxembourg in person, they will ask to be allowed to participate remotely via video and the CJEU will permit it. Let us see whether the supply will cover the whole demand and whether some of the catches and drawbacks will be eliminated. Two questions remain open. One – is the remote video participation before the CJEU going to outlast the pandemic and become a standing part of its toolkit? And two – will the CJEU move from hearings 1.1 to hearings 2.0 sometime in the future? Everything will depend upon the CJEU as well as the parties and their representatives, particularly those of the EU Institutions and Member States who have a say in the functioning of the Court.
I believe that most parties’ representatives belong to the latter group and they will go to Luxembourg, as soon as they can. It will not satisfy them, to oversimplify, to turn on their computer, set up the webcam and click on the connect button. On the other hand, the debate about the possibility of conducting the hearings of and by the CJEU remotely will certainly continue. It might even be put into a different perspective by various new factors, including the impact of the ght against COVID-19 on the EU economies. However, I hope that any future solution put in place will not be to the detriment of the legal dialogue and the efciency and proper delivery of justice.
So far, the CJEU itself seems to perceive remote video participation as an exceptional measure. It may be forced to use it again in the future, be it due to exceptional circumstances in an individual case or to a crisis like the ongoing one. However, it does not appear that this way of attending a hearing and making oral arguments should remain generally available post-COVID-19.
EULAWLIVE stay alert keep smart
12
Nº20 · JUNE 6, 2020
weekend
edition stay alert keep smart
News Highlights Week 1-5 June 2020 Court of Justice’s overview of its activities and selected cases in 2019 Annual Report
Energy Charter Treaty not updated since 1990s: Commission proposes ‘modernisation’
Monday 1 June
Monday 1 June
READ MORE ON EU LAW LIVE
The European Commission proposes to modernise the Energy Treaty that concerns policy cooperation on energy, investment protection, trade and transit, to enable it to better reect the EU’s current climate policy and investment policy objectives.
The Court of Justice of the European Union published its Annual Report for 2019, which highlights seminal and important cases delivered by both of its courts (the Court of Justice and General Court), new procedures, new Members appointed, and providing a roundup of statistics relating to that year.
EU budget: Commission proposes new Solvency Support Instrument and enhanced Invest EU Programme Monday 1 June
READ MORE ON EU LAW LIVE
The European Commission has issued two proposals: one for a new Solvency Support Instrument to incentivise private investments in order to promote EU economic growth, and another, for an InvestEU Programme a agship investment programme (withdrawing an earlier proposal of May 2018).
ECtHR uses communications procedure in four Polish applications concerning procedures for appointing and promoting judges Tuesday 2 June
READ MORE ON EU LAW LIVE
The European Court of Human Rights (ECtHR) issued a press release announcing its decision to make use of the communications procedure under Article 54 of its Rules of Procedure in order to give notication to Poland of four pending cases: Sobczyńska and Others v. Poland (applications nos. 62765/14, 62769/14, 62772/14 and 11708/18), concerning the Polish President’s refusal to appoint the applicants to vacant judicial posts in various courts in Poland.
EULAWLIVE stay alert keep smart
READ MORE ON EU LAW LIVE
13
State aid and extended producer responsibility for waste management: AG Pitruzzella’s Opinion Monday 1 June
READ MORE ON EU LAW LIVE
Advocate General Pitruzzella suggests in Eco TLC (C556/19) that the Court of Justice rule that Article 107 TFEU must be interpreted as meaning that a system of extended producer responsibility for waste management, such as that provided for by the national legislation at issue must not, in principle, be regarded as State aid within the meaning of that provision, and that it is for the national court to carry out a full analysis as to the possible classication as ‘State aid’ of the scheme in question.
Compensation of universal service obligations under EU law: AG Szpunar’s Opinion Tuesday 2 June
READ MORE ON EU LAW LIVE
Advocate General Szpunar advises the Court of Justice to dismiss in its entirety the case Commission v Portugal (Financement des obligations de service universel) (C49/19), as in his view the Portuguese rules for compensation of the universal service obligation do not breach the principles of transparency, minimum market distortion and proportionality or non-discrimination.
Nº20 · JUNE 6, 2020
weekend
edition stay alert keep smart
Consultation to feed Commission proposal for measures to regulate digital services
Possible new competition tool addressing structural problems: Commission opens up consultation
Tuesday 2 June
Tuesday 2 June
READ MORE ON EU LAW LIVE
READ MORE ON EU LAW LIVE
The European Commission has plans to issue proposals in the last quarter of 2020 for EU law measures to modernise the regulatory framework for digital services providers, by updating the existing rules dating back to e-Commerce Directive 2001/31 (which harmonised transparency, information, commercial communications, and electronic contract rules). This initiative is part of the Digital Services Act package, and the political priorities laid out by the Commission President.
The European Commission opened up a consultation concerning its competition law framework, part of a broader policy debate about the need for changes in this eld, addressing, in particular, certain structural risks for competition, such as tipping markets, and a structural lack of competition, which are not addressed by the current rules.
Is a zero-euro bid suitable to conclude a public procurement contract? AG Bobek’s Opinion
Fair minimum wages for workers in the EU: Commission opens consultation
Wednesday 3 June
READ MORE ON EU LAW LIVE
Advocate General Bobek advises that the Court of Justice rule that the concept of ‘contract for pecuniary interest’ under Article 2(1)(5) of Directive 2014/24 does not permit the qualication as a ‘public service contract’ of an operation whereby the tenderer submits to the contracting authority the proposal to provide the service for a price of zero euros, in so far as the parties to the contract do not agree on a compensation of economic value to be borne by the contracting authority.
Special leave under a collective agreement not covered by Working Time Directive according to Court of Justice Thursday 4 June
READ MORE ON EU LAW LIVE
In the Grand Chamber judgment C-588/18, Fetico and Others, the Court of Justice has ruled that the Working Time Directive does not cover the case of additional rights granted as special leave under a collective agreement nor the calculation of that special leave in these circumstances in relation to weekly rest rights under Article 5 and annual leave rights under Article 7 of the Working Time Directive.
EULAWLIVE stay alert keep smart
14
Thursday 4 June
READ MORE ON EU LAW LIVE
The Commission has opened a consultation of European trade unions and employers’ organisations on how to ensure fair minimum wages for all workers in the European Union, in the context of recent events that have led to rising wage inequalities and in-work poverty, and as part of its (pre-COVID-19) January 2020 Communication on a Strong Social Europe for Just Transitions. It is considering both legislative and non-legislative instruments (a Directive in the area of working conditions, and a Council Recommendation).
Council’s annual Report on public access to documents 2019 Thursday 4 June
READ MORE ON EU LAW LIVE
The Council of the EU approved its Annual Report on the implementation of Regulation 1049/2001 regarding public access to documents. The Report has been drafted pursuant to Article 17(1) of the Regulation. It compiles statistical data, describes trends in requests for access to Council documents, and reviews complaints to the Ombudsman and rulings given by the Court of Justice of the European Union in cases concerning the EU Institutions’ implementation of the Regulation.
Nº20 · JUNE 6, 2020
weekend
edition stay alert keep smart
Duty to justify suspension orders in State aid investigation procedures: Court of Justice quashes General Court judgment and Commission decisions concerning Hungary
Court of Justice: national courts enforcing child maintenance decisions given in another Member State have jurisdiction to adjudicate on applications opposing enforcement
Thursday 4 June
Thursday 4 June
READ MORE ON EU LAW LIVE
READ MORE ON EU LAW LIVE
The Court of Justice gave its judgment in Hungary v Commission (C-456/18 P), upholding the appeal brought by Hungary (supported by Poland) against the judgment of the General Court of 25 April 2018 in Hungary v Commission (T-554/15 and T-555/15). According to the Court of Justice, the Commission’s decision to suspend the application of two Hungarian taxes during the State aid formal investigation procedure was not sufciently justied, and the General Court overstepped the limits of its jurisdiction when it added reasons not provided for by the challenged decisions of the Commission.
The Court of Justice gave its judgment in FX v GZ (C41/19), a preliminary ruling requested by the Local Court of Cologne, Germany. The case concerns the interpretation of Regulation 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, and of the Brussels I Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
Disinformation and the Infodemic: the EU’s response
EFTA Surveillance Authority approves COVID-19 Norwegian State aid in the telecommunications sector
Friday 5 June by Anjum Shabbir READ MORE ON EU LAW LIVE
Friday 5 June
An overview of past and present EU measures taken to prevent and ght disinformation, including the funding of a newly created European Digital Media Observatory, and how these measures reect the EU’s approach to regulation in the eld, as well as the EU’s objectives as recently stated by Commissioner Jourová, plus future measures such as the publication next week of a Communication on Disinformation in the COVID-19 context, and a Democracy Action Plan by the end of the year.
READ MORE ON EU LAW LIVE
The EFTA Surveillance Authority (ESA) has, under State aid rules, approved the proposed Norwegian measure to allow the third mobile operator ‘Ice Communications Norge’ (Ice) to postpone the payment of its licence fees in exchange for Ice’s commitment to invest 259 million in the third mobile network in 2020-2022.
Protecting water resources and quality in the EU: Regulation on minimum requirements published Friday 5 June
READ MORE ON EU LAW LIVE
A Regulation laying down minimum requirements for water quality, monitoring and risk management for the safe use of reclaimed water in the context of integrated water management was published in the Ofcial Journal (2020/741).
EULAWLIVE stay alert keep smart
15
Nº20 · JUNE 6, 2020
weekend
edition stay alert keep smart
Analyses & Op-Eds The EU Judiciary After Weiss – Proposing A New Mixed Chamber of the Court of Justice By J.H.H. Weiler and Daniel Sarmiento
READ MORE ON EU LAW LIVE
Op-Ed proposing a solution to the problem that the Court of Justice is a court of rst and last instance with no appeal to a higher court of its decisions, namely a new appeal jurisdiction within the Grand Chamber of the Court of Justice examining the dividing jurisdictional line between the Member States and the European Union: a Mixed Chamber made up of six Members of the Court of Justice alongside six sitting Members of the constitutional or equivalent supreme courts of the Member States, and presided by the President of the Court of Justice (the thirteenth judge). The scope of review would be for a ‘serious breach’ of the principle of conferral, and standing would be granted to Constitutional or Supreme Courts, Member State governments and/or parliaments, and allowing the intervention of other Member State and EU actors.
AG Bobek’s Opinion in Case C-129/19: protecting crime victims in purely internal situations through the Charter of Fundamental Rights without encroaching on national regulatory autonomy By Amedeo Arena
READ MORE ON EU LAW LIVE
Op-Ed on the advice provided to the Court of Justice on the legal requirement to protect victims of crime, what is ‘fair and appropriate’ compensation under Directive 2004/80, in purely internal vs cross-border situations, by Advocate General Bobek in Presidenza del Consiglio dei ministri v BV (C-129/19), describing the Opinion as a successful circle-squaring exercise, solving a particularly intricate interpretative conundrum by championing a broad reading of the Directive.
EULAWLIVE stay alert keep smart
16
Case C-535/18 Land NordrheinWestfalen: Access of individuals to national courts to challenge infringements of EU environmental law by Ioanna Hadjiyianni
READ MORE ON EU LAW LIVE
Analysis of the Court of Justice’s environmental law rulin ing Land Nordrhein-Westfalen (C-535/18), looking at the interrelationship between the Environmental Impact Assessment Directive and the Water Framework Directive, the non-deterioration obligation for groundwater, and enforcement of EU environmental law - in particular the right to challenge an infringement of an EU Directive.
Distributing the cake in times of pandemic: Weighing the pros and cons of the Universal Basic Income proposal By Borja Barragué and Guillermo Kreiman READ MORE ON EU LAW LIVE
Op-Ed on the European Commission’s registering of the proposal for a European Citizens’ Initiative ‘Start Unconditional Basic Incomes (UBI) throughout the EU’, arguing that targeted and conditional social benet schemes seem to be better suited from a normative and empirical perspective, especially (but not only) during times of crisis, and questioning a Unconditional Basic Income policy at the level of normative political philosophy, particularly problematic in the context of real politics.
Nº20 · JUNE 6, 2020
weekend
edition stay alert keep smart
Case T-399/16 CK Telecoms UK Investments v Commission: Why there is no shame for the Commission to be defeated in the EU courts
The European Court of Human Rights renders an Advisory Opinion requested by the Armenian Constitutional Court
By Damien Geradin
By Victor Ferreres Comella
READ MORE ON EU LAW LIVE
Op-Ed on the General Court of the EU’s ruling annulling the Commission’s decision to block the proposed acquisition of Telefonica UK by Hutchison 3G UK in the sector of the mobile telephony market (T-399/16), seen as important and likely to have repercussions on the way the Commission analyses mergers in concentrated markets, particularly in the mobile communications sector.
READ MORE ON EU LAW LIVE
Op-Ed on the second Advisory Opinion ever delivered by the ECtHR under Protocol No. 16 to the European Convention on Human Rights, and an explanation of the procedural and substantive reasons why this is important. The case addresses several central issues regarding the compatibility of national criminal law with the ECHR systems.
The Commission’s roadmap for digital regulation: updating the EU digital rulebook and regulating the platforms having a gatekeeper position By Diana Calciu
READ MORE ON EU LAW LIVE
Op-Ed on the two roadmaps related to the future EU Digital Rulebook: (1) Digital Services Act: deepening the Internal Market and clarifying responsibilities for digital services and (2) Digital Services Act package: ex ante regulatory instrument of very large online platforms acting as gatekeepers, assessing the Commission’s recent proposal to modernise the E-commerce Directive, reviewing the proposals on large platforms acting as gatekeepers.
Library - Book Review KOEN LENAERTS AND JOSÉ ANTONIO GUTIÉRREZ-FONS
By Daniel Sarmiento
Bruylant, 2020
Les méthodes d’interprétation de la READ ON EU LAW LIVE Cour de justice de l’Union européenne This book review highlights the very special attention that a book on the methods of interpretation of EU law requires when authored by the President, and a legal secretary, of the Court of Justice, and when both have a distinguished academic record. It notes that this is ‘not a mere account of case law and practice, but a valuable and introspective account into the decision-making process of a jurisdiction that relies heavily on its methods of interpretation’.
EULAWLIVE stay alert keep smart
17
stay alert keep smart
subscribe
NOW www.eulawlive.com
EU LAW LIVE 2020 © ALL RIGHTS RESERVED
18
18