Nº6 FEBRUARY 22
2020
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There is Life in the Old Dog Yet: Recent Cases on the Protocol on the Privileges and Immunities By Karen Kaiser PAGE
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Judicial Monologues on MEP Immunity: A Brief Commentary to Junqueras Vies By David Pérez de Lamo PAGE
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Nº6 · FEBRUARY 22, 2020
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There is Life in the Old Dog Yet: Recent Cases on the Protocol on the Privileges and Immunities By Karen Kaiser
Until recently, the Protocol on the Privileges and Immunities of the European Union (the ‘Protocol’) has received little attention. Among the roughly 100 closed cases listed by the EU courts as pertaining to the subject matter of privileges and immunities, the majority relates to privileges, that is exceptions or modications for the EU under national substantive or procedural law, and, thus, often rather technical issues, such as applications for leave to serve a garnishee order on the EU. In contrast to privileges, immunities have no impact on the applicability of national law, but hinder national authorities, especially national courts, in assessing the existing legal situation. Given that the EU courts have exclusive jurisdiction over the lawfulness of the EU’s actions, the Protocol has not granted immunities to the EU, but to the individuals performing the EU’s tasks. Here, the closed cases primarily focus on the immunities of the Members of the European Parliament.
The Court of Justice has given a novel interpretation of the scope of immunities enjoyed by MEPs
wered by the EU courts have the potential to bring about even further developments in the interpretation of the Protocol. 1. Institution-friendly interpretation In its recent judgment in Junqueras Vies (C502/19), the Grand Chamber of the Court of Justice has given a novel interpretation of the scope of immunities enjoyed by Members of the European Parliament under Article 9 of the Protocol. Individuals elected to the European Parliament acquire the status of members of that institution at the time of the ofcial declaration of results by the competent (electoral) authorities of the Member States and enjoy, from that time, the immunities attached to that status. The decisive argument for the Court of Justice has been that only that interpretation prevents Member
However, as little attention as the Protocol has received, recent judgments of the EU courts show that there is life in the old dog yet. In addition, several pending cases concerning questions that have not yet been ans-
1. Dr. iur.
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The Court of Justice has considerably strengthened the position of the European Parliament vis-à-vis national authorities
States from excluding certain persons elected from taking up their seats in the European Parliament for reasons not objectively justied and ensures that the power to allow for measures of detention against elected members of the European Parliament is left to that institution alone when deciding on a request from national authorities to waive immunities of a member of the European Parliament. Leaving aside the political implications of this judgment (which have been extensively commented on here), the Court of Justice has considerably strengthened the position of the European Parliament vis-à-vis national authorities. This institution-friendly interpretation of the Protocol, which takes into account the specic tasks entrusted to the institution concerned, might have an impact on the following three pending cases before the Court of Justice touching upon the privileges and immunities of other institutions. a) Immunities of members of the Commission and the Governing Council of the ECB Two pending cases concern the immunities of members of the Commission and the Governing Council of the ECB respectively. OH (C-758/19), a preliminary reference ruling requested by a Greek court, is the rst case concerning the interpretation of the immunities of members of the Commission. The referring court asks two questions, namely whether the EU courts have jurisdiction to rule on a non-contractual claim in tort against a former member of the Commission and, if not, whether ‘immunity from legal proceedings’ within the meaning of Article 19(2) in conjunction with Article 11(a) of the Protocol covers, in addition to criminal prosecution, civil claims, such as the one in the case at hand. In contrast to OH, the background of LR Ģenerālprokuratūra (C-3/20), a preliminary reference ruling requested by a Latvian court, is a criminal investigation against a former Governor of a national central bank of a Member State whose currency is the euro and, therefore, a former member of the Governing Council of the
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Nº6 · FEBRUARY 22, 2020
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ECB. Here, the referring court asks whether ‘immunity from legal proceedings’ within the meaning of Article 22(1) in conjunction with Article 11(a) of the Protocol covers, in addition to judicial proceedings, pre-trial investigations and, if it does, whether such immunity affects the legitimacy of evidence obtained against the former member of the Governing Council of the ECB. In Rimšēvičs and ECB v Latvia (C-202/18 and C-238/18), AG Kokott has opined: ‘Although [Article 11(a) of the Protocol] refers only to “immun[ity] from legal proceedings” (“immunité de juridiction”), it cannot be precluded that that immunity is, at least in cases involving senior ofcials, to be interpreted as conferring immunity from proceedings (“immunité de poursuites”) on them as well. Having regard to the importance of the independence of the Members of the Governing Council of the ECB, it seems logical, moreover, that they cannot be the subject of proceedings involving measures such as those adopted by the KNAB against Mr Rimšēvičs, namely provisional detention or inspections, unless a decision waiving immunity has been adopted by the Governing Council.’ However, as the question on whether Mr Rimšēvičs enjoys immunities under the Protocol has not been decisive, LR Ģenerālprokuratūra is the rst case concerning the interpretation of the immunities of members of the Governing Council of the ECB before the EU courts. b) Inviolability of the archives of the EU Another pending case concerns the alleged infringement of Article 2 of the Protocol by
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Slovenia when ECB documents were seized at the central bank of Slovenia in the context of a national criminal investigation against central bank ofcials unrelated to the tasks of the ECB. Commission v Slovenia (C316/19) is the rst infringement action the Commission has initiated against a Member State other than Belgium for failure to comply with the Protocol (ve infringement actions have been initiated against Belgium where most EU institutions have their seat – 85/85, 186/85, 260/86, C-437/04 and C163/14). The Court of Justice will have to decide for the rst time on the interpretation of the inviolability of the archives of the EU in the specic context of the European System of Central Banks (ESCB) which it has recently, namely in Rimšēvičs and ECB v Latvia (C-202/18 and C-238/18), qualied as ‘a novel legal construct in EU law which brings together EU national institutions, namely the national central banks, and an EU institution, namely the ECB, and causes them to cooperate closely with each other, and within which a different structure and a less marked distinction between the EU legal order and national legal orders prevails’. 2. Pre-emptive interpretation The recent judgment in Junqueras Vies (C502/19) is also remarkable in another respect. In the introduction of his Opinion, AG Szpunar has rejected objections made in legal doctrine that the Protocol has become anachronistic. In his view, such objections show ‘a very optimistic view of things’. He has cautioned that the rule of law was not equally advanced everywhere and political development was not always geared towards strengthening it. Even if the national courts
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question arises whether the ofcial or other servant concerned can avail itself of any rights in the internal relationship between the institution and him - or herself.
were fundamentally independent, this did not necessarily apply to law enforcement ofcers and the public prosecutor’s ofce. This pre-emptive interpretation of the Protocol has been taken up by the Court of Justice which has added relevant nuances to its earlier case law. The privileges and immunities are not only ‘intended to avoid any interference with the functioning and independence of the Communities’, as the Court of Justice had held in Zwartveld (C2/88 Imm), but provide the ‘Union institutions’ with ‘full and effective protection against the hindrances or risks to their proper functioning and independence’. As a consequence, the objective guiding the interpretation of the Protocol is not negative, but positive. What is more, the judgment in Junqueras Vies implies that the proper functioning and independence of institutions is only fully and effectively protected, if it already avoids, as a pre-emptive step, risks of interferences by national authorities.
Although Article 17(1) of the Protocol states that privileges and immunities are accorded to ofcials and other servants of the EU solely in the interests of the EU, the General Court has not only held that the decision by which the EU institution waives such immunity constitutes an act adversely affecting the individual concerned, but also that the individual concerned must be heard in his or her own defence before the adoption of such decision. Upon the appeal of the Commission, the case is now pending before the Court of Justice (C-831/18 P). In her Opinion, AG Sharpston shares the progressive interpretation of the General Court.
The objective guiding the interpretation of the Protocol is not negative, but positive
3. Progressive interpretation Finally, it remains to be seen whether the recent judgment of the General Court in RQ v Commission (T-29/17) has opened up a more progressive interpretation of the Protocol. Traditionally, privileges and immunities become relevant in the external relationship between the EU and the Member States. Nevertheless, as mentioned before, the Protocol has not granted immunities to the EU, but to the individuals performing the EU’s tasks. As each institution is required to waive the immunity accorded to an ofcial or other servant wherever that institution considers that the waiver of immunity is not contrary to the interests of the EU, the
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Nº6 · FEBRUARY 22, 2020
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Judicial Monologues on MEP Immunity: A Brief Commentary to Junqueras Vies 1
David Pérez de Lamo Oriol Junqueras was the Vice-President of Catalonia when the Catalan Parliament adopted the so-called Referendum Laws, in accordance with which the ‘self-determination referendum’ was held (1 October 2017) and unilateral independence was declared, despite the Spanish Constitutional Court’s (‘CC’) rulings.
1. Opinion of Advocate General Szpunar and Judgment of the Court of Justice Temporal and personal dimensions: ‘Member of the EP’ As is well known, the Court of Justice claried that the notion of MEP in Article 9 of the Protocol is an autonomous concept of EU law and that a candidate acquires that condition and thus enjoys immunity - from the very moment and by the mere fact of being elected (Junqueras, C-502/19, paragraphs 62 and 71). To reach that conclusion, the Court applied a combined reading of Articles 2 and 10(1) TEU, that highlight representative democracy as a functional principle of the EU, together with Article 14(3) TEU, which establishes that MEPs ‘shall be elected […] by direct universal suffrage’ (paragraphs 62 to 65). As Advocate General (AG) Szpunar eloquently remarked in paragraphs 46 and 49 his Opinion to the Court, ‘voters elect MEPs, not “aspiring MEPs”, and their decision, expressed in the vote, is not subject to any conrmation’. Therefore, ‘the proclamation of the results [...] is the constitutive element for the acquisition of the mandate’ (2).
Subsequently, criminal proceedings were initiated and Mr Junqueras was placed in preventive custody (2 November 2017). Long after the initiation of the proceedings and once the trial phase had been opened (25 October 2018) by the Spanish Supreme Court (‘SC’), elections at the European Parliament (‘EP’) were held (26 May 2019), and he became an elected Member of the European Parliament (MEP) (13 June 2019). As a result, Junqueras applied for an extraordinary exit permit, claiming that he enjoyed immunity based on Article 9 of Protocol No 7, in order to comply with the requirements of the General Electoral Law (mainly to take an Oath before the Central Electoral Board) and take his seat as an MEP. In this separate procedural event, the SC referred a number of questions to the Court of Justice of the European Union for a preliminary ruling to determine the scope of application (temporal and personal) and the content (substantive scope) of MEPs’ immunity.
This interpretation may be explained by the fact that, if the condition of MEP (and hence, immunity) were to be acquired at a later stage, it would be easy to interfere with the normal
1. LLM, College of Europe, Bruges. 2. Emphasis added. Author’s own translation.
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This conclusion is deeply problematic from two perspectives.
composition of the Chamber by imposing formalities. Furthermore, Spanish law would have led to the same conclusion. Firstly, because the Constitution states in Article 71(2) that Diputados (members of parliament) enjoy immunity during the ‘period of their mandate’ which, according to Article 68(4), starts ‘from their election’. Secondly, because the CC has already conrmed that the obligation to take the constitutional oath is merely connected with the exercise of the parliamentary functions and not with the acquisition of the condition of Diputado, for which there is no other title than popular election. (3).
The rst perspective is from that of distribution of competences, because Article 9 of the Protocol refers to national law to determine the immunity’s objective content whenever MEPs are in the territory of their own States. While the second paragraph of Article 9 does not explicitly refer to national law, it should be interpreted as a reection of the rst paragraph.
Otherwise, MEPs would enjoy two different immunities ‘Voters elect MEPs, not when they are in their own “aspiring MEPs”, and Member States: before the EP What does ‘immunity’ include? their decision, expre- sessions start, a European immunity under the second parassed in the vote, is not graph of Article 9 and, while Another aspect of the ruling, the EP is in session, a Spanish which has largely gone unnoti- subject to any confirimmunity under the rst paraced, concerned the determinamation’. graph. This interpretation is tion of the substantive scope of not only unjustiably inconthe immunity, to which the sistent, but also inconsistent, as it would enCourt of Justice attributed an ‘EU’ content tail that, at the peak of the exercise of their by relying both on the second paragraph of functions, MEPs enjoy a theoretically less Article 9 of the Protocol and Article 343 protective (national) immunity, whereas, beTFEU. Regardless of the fact that the profore their commencement, they have a theoceedings were already in the nal stages, the retically more protective (European) immuCourt concluded that the immunity laid nity. down in Article 9, second paragraph, entailed the lifting of preventive custody to allow In fact, AG Szpunar interpreted Article 9 of Mr Junqueras to comply with the requirethe Protocol in the same way (see paraments of the General Electoral Law and tragraphs 85 to 88 of his Opinion). While he exvel to the EP. In this way, the Court seems to plored the possibility of interpreting that prodene an ‘absolute’ concept of immunity, vision in light of the signicant institutional which would protect an elected MEP against and normative changes since the ECSC ongoing criminal proceedings, irrespective Treaty, he did not dismiss the reference to naof the stage they are in, that is, from their initional law (paragraphs 104 to 108). And intiation until the nal delivery of a judgment. deed, the Court of Justice recently conr-
3. JCC 119/1990.
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The Court seems to define an ‘absolute’ concept of immunity.
become a personal privilege, as it would impinge upon the above mentioned (equally valuable) fundamental principles and rights. That is why the Spanish legal order establishes a limit to the immunity by circumscribing its protection to procedural stages prior to the opening of the trial phase. Accordingly, Mr Junqueras would not be protected as the opening of the trial phase had taken place long before (25 October 2018) he was elected (13 June 2019).
med its current relevance in Patriciello (C163/10, paragraph 25). It is true that by leaving it to national law, the right would be less effective. Nevertheless, the answer lies within the wording of the Treaty (interpretatio cessat in claris). The limited compromise reached by the Member States in this regard may very well be explained by the wide diversity of legislative approaches to parliamentary immunity at the national level (4).
This makes perfect sense because, if an investigation is completed and the judge moves on to the trial phase (long) before the accused is elected, how can the criminal proceedings have the aim to interfere with the normal functioning and composition of the EP? Indeed, a retroactive assessment of the criminal proceedings’ impact on the normal activity of the EP clearly falls outside the scope of the right to immunity. As the SC stressed, ‘the requirement of legislative authorisation for the judiciary to complete the criminal proceedings, which was initiated long before the defendant was elected MEP, would entail a subordination of the judicial power to parliamentary approval that would be con-
Secondly, an absolute concept of immunity poses important problems from the perspective of the principle of separation of powers and rule of law, as well as the fundamental rights to equality before the law and effective judicial protection. Certainly, the institution of parliamentary immunity is a necessary guarantee to ensure that the composition of the EP faithfully reects the preferences of EU citizens expressed by direct universal suffrage (Article 39 of the Charter) and to protect the normal functioning of the EP from undue interference (functional guarantee). However, it must not
4. Order SC, January 9, 2020, pg. 8.
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Nº6 · FEBRUARY 22, 2020
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trary to the balance of powers designed by the drafters of the Constitution’ (5).
Protocol (paragraphs 91 and 92). Still, a full waiver would be required to continue with the proceedings.
The need for a limitation becomes all the more evident looking at the specic circumstances of the case. When the oral proceedings were opened (25 October 2018 - and where the criminal investigation had started a year earlier in October 2017), (i) the EP elections had not even been called (26 May 2019), and (ii) it was by no means predictable that Mr Junqueras would stand as a candidate. In addition, when he was nally elected (13 June 2019), (iii) the trial phase had ended (12 June 2019), and only the nal judgment had to be delivered.
2. The (awkward) question of admissibility and the effects of the ruling The Court of Justice took a cautious position by clearly relying on the presumption of pertinence of the questions raised, thus intentionally ignoring the fact that they had become, manifestly, no longer actionable as a result of the SC’s ruling (October 14, 2018), which sentenced Mr Junqueras to (i) 13 years of imprisonment, and (ii) disqualication from holding public ofce, for sedition and embezzlement of funds. The former amounted to grounds of incompatibility, annulling his mandate as an MEP (6). Even if AG Szpunar pointed this out in paragraphs 99 to 101 of his Opinion, he wrongly focused on the penalty of disqualication, which the SC (7) had suspended to allow for the possible ‘indirect’ effects of Court’s ruling. (Similarly, read Daniel Sarmiento’s Op-Ed on this on EU Law Live.)
In conclusion, such an extensive protection would easily lend itself to abuse, openly inviting anybody who faces criminal proceedings to stand for election in order to avoid a likely conviction. Instead, the Court of Justice attempted to strike a balance by allowing preventive custody to continue, as long as a suspension of the immunity was immediately requested from the EP under the third paragraph of Article 9 of
Therefore, the SC should have waited for the reply of the Court of Justice before ruling on the main case and, by not doing so, it has committed a double procedural violation of an essential nature. Firstly, because an MEP has been sentenced without obtaining the required authorisation from the EP, in violation of his right to immunity. Secondly, because the SC has rendered the questions for preliminary ruling - and consequently the Court’s judgment - ineffective. (Again, similarly, read Daniel Sarmiento’s Op-Ed on this on EU Law Live.) This was shown by the orders
Extensive protection would easily lend itself to abuse, openly inviting anybody who faces criminal proceedings to stand for election in order to avoid a likely conviction
5. Order SC, May 14, 2019, pg. 6. Emphasis added. Author’s own translation. 6. Articles 6(2)(a) and (b), 210 bis and 211(1) of the General Electoral Law in conjunction with Article 13 of the 1976 Act. 7. Order SC, October 14, 2018.
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tion to those procedural acts that took place after he acquired immunity. Since, at that time (13 June 2019), the SC had already nalised the trial phase (12 June 2019), it would be necessary to redeliver the judgment, of course, subsequently to the EP’s authorisation, which could only reject it in case of fumus persecutionis. Meanwhile, the SC could keep Mr Junqueras in preventive custody if, in line with the Court of Justice’s ruling, the EP agreed to suspend the effects of the immunity.
of 9 January 2020, where the SC essentially stated that the immunity did not protect Junqueras anymore, as he had already been convicted. As a result, Junqueras could make an application for amparo (‘recurso de amparo’) (exercise of an individual’s right to appeal concerning a constitutional rights’ claim) before the CC for a violation of the fundamental right to due process, which would have jurisprudential support. In particular, the CC has already found that the non-referral of a question for preliminary ruling by a court – when it had the obligation to do so under Article 267(3) TFEU – constitutes a violation of the fundamental right to due process (8). The same ought to be concluded then when the court in question raises them, but later renders them completely ineffective. In parallel, the Commission could bring an infringement procedure for breach of Articles 9 of the Protocol, 47 of the Charter and 267(3) TFEU, supported by the Court of Justice’s case law, as most recently occurred in Commission v France (C-416/17). Lastly, an action could be lodged before the European Court of Human Rights for a violation of Article 6(1) of the European Convention on Human Rights (right to a fair trial). (Examples of such actions include ECHR judgments Dhahbi v. Italy (application no. 17120/09), paragraphs 31 to 34, and Schipani and Others v. Italy (application no. 38369/09), paragraphs 69 to 73.)
For the time being, Mr Junqueras has led legal proceedings against the EP’s decision to remove his MEP status, following the SC’s orders of 9 January 2020, which may allow the General Court to indirectly review some of these aspects. 3. Final comments In light of the above, these proceedings fall short of constituting ‘an example of judicial dialogue’ (9), or any paradigm of judicial cooperation. Both the Spanish and EU courts have shown signs of cooperation, for example when the SC suspended the penalty of disqualication and the Court of Justice allowed for suspension of the immunity to be requested, however, when it came to the key matters, both ended up overreaching.
The Supreme Court should have waited for the reply of the Court of Justice before ruling on the main case
If any of these actions proved successful, it could entail the annulment or the revision of the SC’s ruling. In any event, this would affect only Mr Junqueras and merely in rela8. JCC 58/2004.
9. Teruel Lozano, Germán M.: Junqueras’ Immunity: An Example of Judicial Dialogue, VerfBlog, 2020/1/19
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Nº6 · FEBRUARY 22, 2020
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News Highlights 17-23 February 2020 Pending preliminary reference about the powers of national constitutional courts from the perspective of EU law
European Council faces legal action for alleged omission to fight against conflict of interest of Czech Prime Minister
Monday 17 February
Monday 17 February
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Publication was made in the Ofcial Journal of the request for a preliminary ruling (C-811/19) lodged by the High Court of Cassation and Justice of Romania, regarding the primacy of EU law and the rights to an effective remedy and to a fair trial under Article 47 of the Charter. Read more on EU Law Live
An action (T-715/19) was brought before the General Court by Lukáš Wagenknecht against the European Council for its failure to act in relation to the conict of interest of Mr Andrej Babiš, the Czech Prime Minister concerning the EU budget. The action was published last Monday.
New cases on the independence of judges in Poland pending at the CJEU
Eurogroup’s report on inter-goverental agreement for the Budgetary Instrument for Convergence and Competitiveness
Monday 17 February
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Publication was made of three preliminary rulings lodged before the Court of Justice of the European Union by the Court of Appeal of Krakow, Poland, regarding the system of appointment of judges in Poland.
Tuesday 18 February
The Eurogroup issued a report on a possible intergovernmental agreement for the Budgetary Instrument for Convergence and Competitiveness, following the invitation to contribute to nd appropriate solutions for the nancing of the BICC.
FRA report finds human rights violations in respect of migrants Tuesday 18 February
ECtHR: Overturning a first-instance acquittal without rehearing key witness may be in line with right to a fair trial
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The EU Fundamental Rights Agency published its latest quarterly migration report, in which the main concerns are deplorable conditions in overcrowded reception centres and consequently in living conditions, and violence against migrants.
Tuesday 18 February
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The Council approved a recommendation on the economic policy of the euro area for the year 2020. The recommendation will be formally adopted by the European Council in March.
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The European Court of Human Rights delivered a judgment in Marilena-Carmen Popa v. Romania, where it held that the applicant’s right to a fair trial was not violated by the Romanian Court of Cassation’s decision to declare her guilty, overturning her rst-instance acquittal, relying on a forensic report as proof and without rehearing a key witness.
Council Recommendation on euro area economic policy in 2020 Tuesday 18 February
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Nº6 · FEBRUARY 22, 2020
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Revised list of non-cooperative jurisdictions for tax purposes Tuesday 18 February
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The Council adopted revised conclusions on the list of non-cooperative jurisdictions for tax purposes after the approval of the Council. The Council decided to extend the already existing list from eight to twelve jurisdictions, adding the Cayman Islands, Palau, Panama and Seychelles.
Proposals on Europe’s digital future unveiled today by the European Commission Wednesday 19 February
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The Commission unveiled its policy agenda on digital transformation, with the publication of a Communication on Europe’s Strategy for Data and a White Paper on Articial Intelligence.
Artificial Intelligence: Parliament disNew transparency package for trade po- cusses how the police and courts licy should use it Wednesday 19 February
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A new set of European Commission commitments to strengthen transparency in the eld of trade policy came into effect. The package includes measures such as the systematic report on the work of all committees established under EU trade agreements.
Thursday 20 February
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The European Parliament’s Civil Liberties Committee discussed the use of articial intelligence by the police and judicial authorities, including its benets and risks, and more specically, predictive policing, facial recognition, and the ethical and fundamental rights issues that may rise.
This Week's Analyses & Op-Eds Revision of the EU list of non-cooperative jurisdictions By Darya Budova
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Analysis on the legal, political, and economic implications of the EU list of non-cooperative jurisdiction for tax purposes, a key instrument in the EU’s external strategy for taxation aiming to promote good tax governance and tackle tax fraud and tax evasion worldwide.
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Nº6 · FEBRUARY 22, 2020
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Library - Book Review LEONIE M. HUIJBERS
By Susana de la Siera Intersentia 466 pp.
Process-based Fundamental Rights Review. Practice, Concept and Theory
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Susana de la Siera reviews this book, which she describes as ‘a sound and thorough analysis’. It looks at the legal technique of process-based fundamental rights review: courts use of ‘procedural reasoning to determine violations of fundamental rights by the legislator, public bodies in administrative procedures or lower courts’.
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