Nº4 FEBRUARY 8
2020
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LONG READ
A Green Standard for Europe's Finance By Nathan de Arriba-Sellier PAGE
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EDITORIAL COMMENT
The Rule of Law and its Crisis – Is it Time for Europe’s Leaders to Make Up Their Minds? By the Editorial Board of EU Law Live PAGE
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A Green Standard for Europe's Finance Nathan de Arriba-Sellier
It may be a bit late to wish you a Happy New Year, but it is probably still time to wish you a sustainable decade. The forthcoming decade will mark a make or break moment for our economies and societies: are we able to tackle the challenges of climate change and dramatically ramp up, at the global scale, the required mitigation and adaptation within a handful of years? The disruptive nature of climate change is already challenging economic and legal assumptions (2).
rred to as environmental nance or sustainable nance, aims at using the nancial system to protect the environment. Green nance is not climate nance, namely the mechanisms relying on public funds to guarantee nancial transfers from the North to the South in supporting the latter for the ecological transition. Green nance is also a bit more precise a term than sustainable nance, which takes into consideration the other dimensions of what is often called ESG
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(environment – social – governance). Corporate social responsibility and corporate governance are not novel issues, whereas the momentum on ‘greening’ the nancial system is. While green nance has been gaining ground in nancial economics over the last decade, its translation to nancial law is very recent. There are many reasons to pay attention to it, particularly in the European Union. The emergence of green nance The integration of environmental, or climate-related, considerations into nancial law has been long coming.
Some of these assumptions concern the nancial system. After the global nancial crisis, the purpose of nance was called into question. From this perspective, ‘green nance’, sometimes refe-
Until the mid-2010s, it was the subject of international private-led ini-
1. Nathan de Arriba-Sellier is a PhD Candidate at the European Research Centre for Economic and Financial Governance (EURO-CEFG) of Erasmus University Rotterdam and Leiden University 2. Elizabeth Fisher, Eloise Scotford and Emily Barritt, “The Legally Disruptive Nature of Climate Change” (2017) 80(2) Modern Law Review 173-201
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tiatives, supported by the Financial Initiative of the United Nations Environmental Program (UNEP-FI). Softlaw standards multiplied to cover a wide array of nancial activities: the Equator Principles for banking in 2003, the Principles of Responsible Investment (PRI) in 2006, or the Principles for Sustainable Insurance in 2012. Green nance gained momentum with the increased issuance of green bonds, notably supported by the standards of the Climate Bonds Initiative. These standards or principles are, however, of selfregulatory nature and do not provide for monitoring and enforcement mechanisms. Although many nancial institutions voluntarily subscribed to these principles, the extent to which they were actually implemented may be called into question. At best, these standards and principles raised awareness in the nancial community; at worst, they just served the greenwashing spin of some nancial institutions (3).
Greenwashing is the deceptive representation of activities as being environment or climate-friendly
Late 2015 marked a turning point, a paradigmatic shift, providing a fertile ground for a reconceptualisation of nancial law at the global level. This was notoriously illustrated by the conclusion of the Paris Agreement in December 2015, setting alongside climate change mitigation and adaptation the objective of ‘making nance ows consistent with a pathway towards low greenhouse gas emissions and climateresilient development’ Article 2(1)© of the Paris Agreement). The conclusion of the Paris Agreement came months after the adoption of the United Nations 2030 Agenda for Sustainable Development and the setting of the related Sustainable Development Goals (SDGs), which provide benchmarks for the transition to a sustainable economy. Closer to nancial law, the Financial Stability Board ofcially recognised the existence of climate risks as nancial risks (cf. infra). In September 2015, its Chairman –
3. Greenwashing is the deceptive representation of activities as being environment or climate-friendly, often used in marketing and public relations
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and governor of the Bank of England – Mark Carney pledged to use nancial regulation and supervision to break ‘the tragedy of the horizon’, that is, the absence of incentives to tackle long-term changes in the economy. In this context, the Financial Stability Board mandated a Task-Force on Climate Disclosures (TCFD) led by Michael Bloomberg to report on how to foster transparency of climate exposures in the nancial system. A rst attempt to impose climate disclosures was, thus, made by France in its Energy Transition Act of 2015, in Article 173-VI. 2015 was a milestone in green nance, in the setting of objectives, identication of risks and elaboration of new instruments.
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Climate risks are nancial risks Much of the rationale underpinning public intervention in green nance comes from the identication of climate risks as risks for the nancial system. Two categories of risks are commonly distinguished: physical risks and transition risks, mirroring the two objectives of climate change mitigation and climate change adaptation. Physical risks are the most evident risks, perhaps. They refer to the very consequences of climate change and, beyond that, the natural catastrophes and events that will be made worse as a result of climate change. These physical risks appear, in part, on the news on a regular basis and their occurrence, diversity and reach are going to surge. Temperature increases, wildres, heatwaves, drought, ocean acidication, hurricanes, oods,
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sea rise, heavy rain, snow or hails, mountain collapse or even epidemics are some of these physical risks. These physical risks are not just about only physical events: their medium or long-term consequences may be as devastating (such as destruction, crop failure, famines, water scarcity, climate refugees, biodiversity loss). Even more modest manifestations of physical risks may seriously impact the economy, by lowering productivity, disrupting trade and logistics or increasing healthcare costs. Transition risks represent another category of risks, the nature of which is much more diverse. They entail changes in asset value as the economy attempts to adapt to climate change. Transition risks range from technological risks to reputational risks, and include regulatory risks and liability risks.
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of temperature compared to pre-industrial levels, our societies will have to reduce GHG emissions by 5 to 7 percent every year.
Transition risks are also concerned by the issue of stranded assets - assets that may lose value along with climate change and the transition to a sustainable economy. Stranded assets are mostly related to the extraction and use of fossil fuels, but not only: the value of real estate in coastal areas is another example of assets that may become stranded as a result of climate change. Most of these assets will still exist but no longer be worthy of the name. This issue is not a working hypothesis: the capitalisation of the four biggest coal producers in the United States has continued to sink since 2010, whereas the overall valuation of fossil fuels producers has lowered over the past years. Since 2014, the market valuation of ExxonMobil lost $184bn.
Thus, physical and transition risks represent nancial risks, both for the stability of the nancial system at large and, at a more granular level, for investor protection, due to the losses incurred by climate change and the transition. Climate risks also threaten to disrupt monetary policy. Beyond the impact of a new Minsky Moment for the transmission of monetary policy, stranded assets or technological changes may affect ination as well and, thus, monetary policy. For years, central banks and supervisory authorities from developing countries (particu-
A Minsky Moment’ (in the words of Mark Carney) could trigger a new financial crisis
larly in Brazil and China), more exposed to climate change, have identied these nancial risks and undertaken actions to tackle them. Whereas the ECB has timidly recognised the potential of climate risks in harming nancial stability, supervisory authorities like De Nederlandsche Bank concluded that the broad exposure of the nancial system to carbon intensive sectors posed a
The tragedy of the horizon remains a particularly acute perspective as transition risks are heightened by the probability of a late and sudden transition, due to the underestimation of risks and the unpreparedness of the economic and the nancial sector. Such ‘a Minsky Moment’ (in the words of Mark Carney) could trigger a new nancial crisis. Indeed, to comply with the 1.5°C increase
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ses climate risks as a potential source of systemic risks for the nancial system. ESAs are mandated by this regulation to identify and adopt common methodologies to measure potential environmental-related systemic risk for the stress-tests of nancial institutions. This should consequently force all supervisory authorities in the EU to consider environmental risks as part of their risk assessment and stress-testing exercises. In addition, the ESAs review Regulation provides, albeit in ambiguous terms regarding its exact signicance, an obligation for these European agencies to ‘take account of the integration of environmental, social and governance (ESG) related factors’ when carrying out their tasks.
potential systemic risk in 2018. This is the same conclusion that the European Systemic Risk Board’s Advisory Committee drew as early as 2016. Even in jurisdictions where environmental protection does not top the political agenda, such as in Australia and more recently in the United States, supervisory authorities have recognised that ‘some climate risks are nancial in nature’, and insisted that these risks are ‘legally foreseeable’ and ‘material’ as of now. A number of central banks and supervisory authorities constituted the Network for Greening the Financial System (NFGS) to exchange on climate risks and share best practices and solutions. More remarkably, green nance made an entrance in (EU) legislation last year, a subject to which I will now turn.
The hesitation of the legislature in setting new, constraining obligations on nancial institutions regarding green nance is clear when reading the new EU legislation on prudential regulation. Both the latest capital requirements package or CRD V/CRR II (5) and its new sister legislation for investment rms (6) incorporate provisions mirroring the three pillars of the international framework of prudential regulation, the Basel III Accords: capital requirements, supervisory review and evaluation process (SREP) and disclosures. Whereas the most stringent provisions require large nancial institutions to disclose ESG-related risks and climate risks, the others merely mandate one of the ESAs, the European Banking Authority (EBA), to conduct assessments on the inclusion of ESG risks in the SREP and the justication of a green nance modulation of capital requirements. These latter provisions
The regulatory intervention of EU law Following the ratication by the European Union of the Paris Agreement, the European Commission mandated a High-Level Expert Group on sustainable nance (HLEG) to submit a comprehensive roadmap for EU policies regarding green nance. The HLEG delivered its nal report in January 2018, suggesting a series of reforms the Commission took over in its Action Plan (4), and was quick to propose to the EU legislature. Most of these proposals have now been adopted. Regulation 2019/2175 reviewing the regulations establishing the European Supervisory Authorities (ESAs) legally characteri4. COM(2018) 97 nal 5. Regulation (EU) 2019/878 and Directive (EU) 2019/876 6. Regulation (EU) 2019/2033 and Directive (EU) 2019/2034
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do not provide for a hard-law outcome, although the EBA would have to revise its SREP guidelines and the Commission would have to commit to submit a legislative proposal, were the assessment to be conclusive. To nd constraining green nance obligations in the new legislation, one has to turn to the issue of information asymmetry. A major criticism of green nance has up to now been the ability of nancial institutions to spin to investors and the public their climate commitments, but doing little else than greenwashing. A specic set of legislative texts has been therefore introduced to remedy this issue. Regulation 2019/2089 on sustainability-related disclosures in the nancial services sector introduces a wide range of transparency requirements for investment service providers. The regulation requires disclosure on the integration of ESG risks into investment policies, remuneration policies, in their general pre-contractual documentation, and in the marketing of nancial instruments. These obligations complete those imposed by the NonFinancial Reporting Directive (7), the guidelines of which were revised by the European Commission on the wake of the report of the Financial Stability Board’s TCFD. Furthermore, Regulation 2019/2088 denes which nancial indexes used to track specic market performances may qualify as low carbon and climate transition benchmarks.
Moreover, the European Commission has been drafting delegated regulations, to be submitted to the EU legislature in the second quarter of 2020, to amend investor protection law (MiFID II and the Insurance Distribution Directive). These delegated acts would oblige insurers, nancial advisers and asset managers, as part of their duciary duties, to take into consideration their clients’ ESG preferences in the investment process. That means that clients would be asked what they want to be done with their money in terms of sustainability, and that nancial institutions would have to respect their wishes. 7. Directive 2014/95/EU
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taxonomy has the potential to become the gold standard of green finance law.
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The taxonomy The cornerstone of the new green nance legal framework is the future Taxonomy Regulation, which was adopted by COREPER and the European Parliament’s ECON and ENVI committees. It will soon be formally adopted by the Council and the Parliament. The Taxonomy Regulation sets the basis for the development of a classication of economic activities, which would characterise which activities are green. Green activities are distinguished from other economic activities that do not full the criteria to be green but either contribute to the transition by aligning best-in-class performances without hampering the development of alternatives, and those activities that enable the contribution of other economic activities to a sustainable economy. The distinction between the three categories lies in the economic and technological feasibility of the transition. The actual taxonomy, of which the Taxonomy Regulation is only the enabling act, will be drawn up by the Commission via a delegated act, based on a series of strict
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conditions (such as scientic evidence) set by the Taxonomy Regulation, and following the recommendations of a ‘Platform on Sustainable Finance’ associating technical experts and stakeholders. To be considered sustainable, economic activities would have to, under the Taxonomy Regulation, contribute substantially to one or more of the environmental objectives listed and detailed by the Regulation, not signicantly harm any of these environmental objectives, be carried out in respect of fundamental rights as well as the eight fundamental conventions of the International Labour Organization, and correspond to the technical screening criteria drawn up by the Commission. These demanding conditions are cumulative. The Taxonomy Regulation lists the qualied environmental objectives: climate change mitigation, climate change adaptation, sustainable use and protection of water and marine resources, circular economy, pollution prevention and control, and protection and restoration of biodiversity and ecosystems.
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The production of energy based on solid fossil fuels is expressly excluded: they cannot be considered as sustainable economic activities pursuant to the Taxonomy Regulation. To strengthen the reliability of the classication, the ‘do not harm principle’ provided by the Taxonomy Regulation also prevents the consideration of any activity that would lead to signicant GHG emissions as sustainable or would have adverse or detrimental impact on the environment. Two requirements, setting the scope of the Taxonomy Regulation, will further boost transparency. First, any large undertaking (employing more than 500 persons) will have to publish information on the share of its economic activities and investments that are sustainable, pursuant to the Taxonomy Regulation. Second, all nancial products that include an investment in a sustainable economic activity or promote environmental characteristics would have to comply with the Taxonomy Regulation and to disclose the quantita-
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reducing the exposure of nancial institutions into stranded assets.
tive extent to which the investments underlying the products contribute to sustainability.
Fossil fuels could as as a result benet from the same grey treatment as economic activities that are neither harming nor contributing to the achievement of environmental objectives. A provision in the Taxonomy Regulation mandates the Commission to report on the possible elaboration of a classication of these other economic activities, as well as on the alignment of other sustainable (social) objectives; yet, it only delays what is eventually inevitable… Another controversy surrounding the fate of nuclear energy and gas, which are not explicitly excluded from the Taxonomy Regulation (by contrast with ‘solid fossil fuels’) and will be subjected to the technical screening criteria established by the Commission and the ‘do not harm’ principle. Although this issue deserves more scrutiny, there are reasons to think that the Taxonomy Regulation offers a legal framework that is demanding enough to prevent such a backdoor comeback of gas and nuclear energies.
The Taxonomy Regulation is applicable to all providers of investment services, whether they are banks, investment rms, insurers or fund managers. It is set to apply by 31 December 2021 with respect to climate change mitigation and adaptation, whereas the taxonomy for the other environmental objectives will apply one year after that. The Commission will have to regularly review (at least every three years for economic activities categorised as contributing to the transition) the taxonomy based on scientic and technological developments, whereas Member States will be responsible for providing measures and penalties to infringements of transparency obligations provided in the Taxonomy Regulation. National Competent Authorities will be responsible for ensuring the compliance of nancial institutions with the taxonomy.
Finally, the exact boundaries of what is sustainable may be difcult to draw, as the Taxonomy Regulation sets vague thresholds of economic activities that have to ’substantially’ contribute to the environmental objectives, without ’signicantly’ harming any of them. To dene the exact extent of what is substantially contributing to the environment and where one begins to signicantly harm it is going to be of critical importance for the viability of the taxonomy. It may in practice be exposed as the trickiest point of the Taxonomy Regulation.
The Taxonomy Regulation does not escape criticism. Whereas it constitutes the legal framework for a classication of sustainable economic activities, it refrains from laying out a classication of economic activities that are not sustainable. We will know what is green, but we will not know what is brown. This would prevent measures discriminating negatively against economic activities that are harming the environment. This omission could, thus, hinder divestment projects, (8) as well as supervisory actions targeted at 8. i.e. the selling of nancial assets linked to fossil fuels
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Nonetheless, the taxonomy certainly has the potential to become the gold standard of green nance law. By dening, classifying and listing sustainable economic activities, it determines the beneciaries of the green nance legislation and sets the basis for further action. The taxonomy should adequately prevent greenwashing and remedy asymmetries of information by imposing some transparency on businesses and nancial institutions’ investments and exposures. Finally, the EU taxonomy sets a global precedent as the world’s rst ofcial and comprehensive catalogue of what is sustainable. Making the best out of the Green Standard
unfold in the coming years, notably by building on the taxonomy. The Bank of England is, in this regard, one of the leaders and has already announced a series of measures, like the exercise of ambitious climate stress-tests in 2021, and stricter governance requirements for nancial institutions. The European Central Bank takes a more timid stand in this respect in its supervisory capacity, whereas its new president Christine Lagarde announced that the monetary policy review will consider climate change. These are all the reasons to believe in a (more) sustainable decade… with the hope that the European Union will not be alone in leading the ght.
Green nance may well constitute a paradigmatic shift in the way that the nancial system is conceived. Although this Long Read for EU Law Live’s Weekend Edition has attempted to provide an overview of the recent developments, there is much more in green nance than is evident in the recent EU legislation. For further reading:
New legislative initiatives are expected, particularly to establish a public ‘green bonds standard’ to better monitor this growing industry ($250 billion estimated in 2019, representing an increase of 50% compared to 2018).
- Beekhoven van den Boezem, Jansen & Schuijling (eds), Sustainability and Financial Markets (Wolters Kluwer 2019) - High-Level Experts Group on Sustainable Finance, Financing a Sustainable European Economy. Final Report (January 2018)
The forthcoming European Green Deal may also deliver further impetus to the EU’s regulatory intervention in green nance (9).
- Bolton, Despres, Pereira Da Silva, Samama and Svartzman, “The green swan. Central banking and nancial stability in the age of climate change” (BIS & Banque de France, January
Moreover, supervisory action is intended to
9. COM(2019) 640 nal
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EDITORIAL COMMENT
The Rule of Law and its Crisis – Is it Time for Europe’s Leaders to Make Up Their Minds? 1
By the Editorial Board of EU Law Live
of Justice ruled that lowering the retirement Something is rotten in the heart of Europe. A age of Polish judges breached EU discrimisupranational organisation based on the manation law and the principle of judicial indexim of ’integration through law’ is currently pendence in Article 19 TEU (2). The ruling witnessing the erosion of judicial institutions was preceded by an order of the Vicein some of its Member States. What began as president of the Court of Justice ordering the a Hungarian oddity in 2010 has turned into a Republic of Poland, inaudita parte, to halt its full-blown crisis of the rule of law touching judicial reforms prior to the Court’s ruling. In the very soul of European integration and November 2019 the Court of Justice rendeeventually undermining the institutions red its latest judgment on the through which it operates. Polish saga, overruling the creaThere appears to be no end in The political leadership tion of a disciplinary chamber sight. So far, the most signicant reaction in support of seems to willingly ignore in the Polish Supreme Court (4). the rule of law is coming that the roof of the house The case law is now coming full-circle and it is conditioning from other judicial institu- is on fire the interpretation of other key tions, mostly the Court of Jusprovisions of the Treaties, like tice of the EU, but the politiArticle 267 TFEU, governing the conditions cal leadership seems to willingly ignore that that national jurisdictions must comply to mathe roof of the house is on re. ke preliminary references (5). In 2018 the Court of Justice ruled that a systeThis case law results from a combined effort mic breach of judicial independence can lead of Polish courts requesting preliminary ruto the suspension of criminal judicial coopelings and the European Commission launration among national courts (2). The judgching infringement procedures against the ment resulted from a reference of an Irish Republic of Poland. The result is an unprececourt questioning whether it was under a dented body of case-law with the aim of preduty to enforce a European Arrest Warrant isserving the rule of law, irrespective of any sued by a Polish court. A year later the Court 1. Maja Brkan, Isabelle van Damme, Marco Lamandini, Adolfo Martín, Jorge Piernas, Ana Ramalho, René Repasi, Anne-Lise Sibony, Araceli Turmo, and Maria Weimer.
2. LM (C-216/18 PPU, EU:C:2018:586). 3. Commission v Poland (C-619/18). 4. AK (C-585/18, EU:C:2019:982). 5. Banco Santander (C-274/14, EU:C:2020:17).
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desz’s membership (combined with Viktor Orbán’s support of Ursula von der Leyen’s nomination and new college of Commissioners), seems to have emboldened the Polish government into launching a new round of attacks against judges, irrespective of the Court of Justice’s rulings. Early this year the Polish President hit back in a televised interview, criticising ´foreign lawyers´ and accusing the Court of Justice of lacking legitimacy to rule on these cases. In early February new legislation came into force in Poland targeting judges that simply comply with their duty to ensure judicial independence as interpreThe rise of populism ted by the Court of Justice. In and authoritarian light of these recent developleadership is underments, it is obvious that the mining democracy and Commission and the Court’s recent decisions have not humthe rule of law bled the Polish and the Hunthroughout western garian governments nor their society. ruling parties.
transfrontier link or connections with areas of EU policy. Needless to say, this case-law has taken procedure and substance into new grounds, pushing the paradigm of integration through law into unchartered waters. Article 2 TEU has now indirectly become a judicially reviewable provision, thus providing a novel remedy that walks together with the political enforcement tools of Article 7 TEU, which was originally conceived to keep courts away from situations of serious breach of the values of the EU. Not anymore. However, it would be naïve to conne the rule of law crisis to a judicial conundrum in a Member State. Not only because a similar evolution has taken place in Hungary, but mostly because the attacks on the Polish and Hungarian judiciaries suggest there is a trend that goes beyond judicial policy. The rise of populism and authoritarian leadership is undermining the quality of democracy and the rule of law throughout western society. A combination of illbred messages with a poor link to veracity, together with a victimising rhetoric and the manufacture of a convenient enemy, has turned autocratic populism into a global movement destabilising the very heart of liberal democracies. It is in this context that the attacks on independent judiciaries have propagated throughout the world, including Europe.
The rule of law crisis is an existential threat for the EU in which lawyers play an important role. Law is a means through which pluralistic societies channel their competing interests through democratic procedures. The role of law in pluralistic societies is not only conned to the settlement of disputes, but it must also govern the terms under which complex polities reach agreements for the benet of the community at large. Law sets limits to the government’s powers, but it also sets the trail that leaders must follow in reaching consensus and building majorities. The rule of law is not a goal in itself, but rather an instrument of fundamental relevance, like a computer’s operating system, that allows our liberal democracies to function properly. Policy-makers, judges and lawyers must en-
After two years of case law and rulings from Luxembourg, is there any sign that the rule of law crisis is receding? Not really. The European Popular Party’s mild reaction to Fi-
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sure that the rule of law functions correctly, or look the other way at their own peril.
It is time to wake up and realise that our democracies are under attack
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However, countering the attacks against the rule of law through court action will not stop the crisis from spreading. The attack on judicial independence (or academic freedom, as is also the case in Hungary) is only one step in an ambitious populist strategy that looms large over our future. It must be contained through courts, indeed, but also through a brave political stance in support of our cherished but fragile democracies. The fall of the Berlin wall gave the West a sense of superiority that proved to be naïve and misleading. It is time to wake up and realise that our democracies are under attack. This challenge requires a response from all institutions in a combined effort to counter exclusionary nationalist discourses, racism and xenophobia, criminalisation of minorities and the rise of false information about crucial developments for humanity, like climate change or the demographic challenge. The actions of the Court of Justice, together with that of national courts and the support of the Commission’s legal service, have provided a robust rst reaction against the serious attempts to undermine the rule of law in two Member States. It is now high time for the political institutions of the European Union and in the other Member States to rise to the challenge and follow the lead. The path has been set and the legal tools are ready, but the journey leading us into this daunting task must be led by our political leaders, not by courts. History provides too many examples, in both the distant and recent past, of the price we all pay when leaders refuse to stand up and leave the task to others. In fact, the EU is the direct result of the suffering and catastrophe that resulted from that kind of short-sighted strategy. It is time for Europe’s leadership to make up its mind and fearlessly confront what could become the EU’s vilest, and eventually lethal, political crisis.
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News Highlights 3-9 February 2020 Belgian Constitutional Court requests CJEU to clarify EU rules applicable to processing of passenger data Monday 3 February
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A request for a preliminary ruling lodged by the Constitutional Court of Belgium in Ligue des droits humains v Conseil des ministres (C-817/19) was published this week. The reference comprises up to ten questions regarding the meaning and the reciprocal relationship between several EU rules on data protection.
Slovak Supreme Court makes reference to CJEU concerning the powers of national authorities applying competition rules Monday 3 February
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A request for a preliminary ruling (C-857/19) was published this week, from the Slovak Supreme Court, concerning the interpretation of Article 11(6) of Regulation 1/2003 on the implementation of competition rules laid down in Articles 81 and 82 of the TFEU.
A lecturer legally representing a university he is connected to is an independent legal adviser Tuesday 4 February
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The Court of Justice claried in Uniwersytet Wrocławski and Poland v REA (C-515/17 P and C-561/17 P) the meaning of the requirement of ‘independence’ laid down in Article 19 of the Court’s Statute.
New EU rules on short-stay visas now applicable Monday 3 February
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The new EU rules on short-stay visas adopted under Regulation 2019/1155 came into force as of Sunday 2 February. This includes inter alia a simpler and more userfriendly visa application procedure, as well as a new regime for multiple-entry visas with long validity.
EFTA Court clarifies the scope of application of the Market Abuse Directive Tuesday 4 February
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The European Free Trade Association Court (EFTA Court) gave its judgment in F and G (E-5/19), a case concerning the interpretation of Directive 2003/6/EC on insider dealing and market manipulation (market abuse).
ECtHR: Russian police searches and seizures regarding lawyers and their clients in breach of privacy and property rights Tuesday 4 February
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In Kruglov and Others v. Russia, the European Court of Human Rights declared that police searches and the seizure of electronic data-storage devices violated the rights to privacy and property rights of the applicants, practising lawyers and their clients.
En-masse resignation at the European Law Journal Tuesday 4 February
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The Editors-in-Chief and both the Editorial and Advisory Boards of the European Law Journal resigned this week.
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European Association of Judges calls Commission presents its strategy for acon Commission to uphold judicial inde- cession process reform pendence after a Polish judge is sanc- Wednesday 5 February READ MORE ON EU LAW LIVE tioned for following a Court of Justice The European Commission issued a Communication ruling Wednesday 5 February
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The President of the European Association of Judges made a statement in which he expressed grave concern about judicial independence and the rule of law in Poland.
CJEU clarifies moment in time in which ‘exit’ of seamen takes place when leaving the Schengen area by sea Wednesday 5 February
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In its judgment in Staatssecretaris van Justitie en Veiligheid v. J. and Others (C-341/18), the Court of Justice ruled on the interpretation of the term ‘exit’ in Article 11(1) of the Schengen Borders Code, when applied to seamen signing on with ships in long-term mooring in the port of Rotterdam.
setting out its concrete proposals for strengthening the effectiveness of the overall process for accession of the Western Balkans to the European Union.
Commission launches review of EU economic governance Wednesday 5 February
The European Commission issued a Communication on the economic governance review and launched a public debate thereon. It invited stakeholders to provide their views on how the economic governance framework has functioned so far and on possible ways to enhance its effectiveness.
AG: Article 18 TFEU does not preclude territorial limitations in civil liability insurance contracts for the use of mediThursday 6 February
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Advocate General Bobek delivered his Opinion in RB v TÜV Rheinland LGA Products GmbH and Allianz IARD SA (C-581/18), proposing that a civil liability insurance contract including a territorial limitation is compatible with the principle of non-discrimination on grounds of nationality in Article 18 TFEU.
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This Week’s Analysis & Op-Eds Sky v SkyKick: CJEU confirms that the lack of intention to use a trademark on the date of filing can constitute bad faith By Nuria Bermejo
Clash of Performers and Producers at the Grand Chamber: the shares of remuneration each actor is entitled to when music is broadcast or played in public
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By Enrique Arnaldos
Analysis on the Court of Justice’s judgment in Sky plc v SkyKick (C-371/18), one of the most signicant trademark cases of the last months, which addresses the role and function of the specication of good and services in the EU trademark system, having regard to third party market access.
Examination of the arguments of the parties in the Court of Justice’s hearing on Tuesday 4 February in Recorded Artists Actors Performers (C-265/19), in a dispute concerning whether performers and producers must always receive equitable remuneration from music that has been broadcast or played publicly. The case concerns the interpretation of Article 8(2) of the Directive on rental and lending rights in copyright matters, and whether a certain term from international agreements can assist in that interpretation.
Seamen working on board ships in longterm mooring in a sea port do not exit the Schengen area By Janine Silga
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CJEU finds it has no jurisdiction in the Slovenia/Croatia border case
A look at the signicance of Staatssecretaris van Justitie en Veiligheid (C-341/18), which claries the previously undened meaning of ‘exit’ under the Schengen Borders Code, relevant to determine whether third country national seamen who sign on as crew members of ships in long-term mooring were actually leaving the Schengen zone. The Court of Justice has ruled that a physical crossing of the border is required for there to be an ‘exit’, which has an autonomous meaning under EU law.
By Edoardo Stoppioni
Judgment of the Court of Justice in Generics (UK) and Others – the application of well-established case law on restrictions by object and potential competition to settlements of patent dispute
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Editorial Opinion exploring the judgment in GAEC Jeanningros (C-785/18), through which the Court of Justice answered a central question posed by the French Conseil d’État: If decisions are made at both the national and European levels, which decision should be challenged, and before which courts?
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Editorial Opinion on the meaning and implications of the Court of Justice’s judgment in Slovenia v Croatia (C457/18), where the Grand Chamber found that the Court of Justice has no jurisdiction over claims relating to public international law arbitration agreements if the alleged breaches of EU law have only an ancillary nature.
Coordinating Judicial Review in Composite Procedures: GAEC Jeanningros By Araceli Turmo
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By Tom Pick
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Editorial Opinion on a case that ‘sends a strong signal to pharmaceutical companies in Europe that trying to use patent settlement agreements to delay entry into the market by generics risks falling foul of the prohibition contained in Article 101(1) TFEU, as well as being considered an abuse under Article 102 TFEU’.
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Nº4 · FEBRUARY 8, 2020
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CJEU rules on the concept of ‘independence of lawyers’ By Javier Ramírez Iglesias
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How independent should lawyers be to represent a party before the the Court of Justice of the European Union? In this Editorial Opinion, Javier Ramírez takes a stance on the recent case-law on the matter from the perspective of a corporate lawyer.
Library - Book Review ELSPETH GUILD, STEVE PEERS, AND JONATHAN TOMKIN
By Diego Acosta
Oxford University Press, 2019, 400 pp.
The EU Citizenship Directive: A Commentary (Second Edition) READ ON EU LAW LIVE
Review of the revised version of Guild, Peers, and Tomkin’s commentary, an essential point of reference for legal operators working within EU citizenship law, which integrates the rulings released thereon by the Court of Justice in the last ve years.
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