Nº9 MARCH 14
2020
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The COVID-19 crisis:
lessons from risk regulation for EU leaders Anniek de Ruijter and Maria Weimer
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Towards an ‘EU Data Act’ to facilitate Business-to-Government data sharing Alberto Alemanno
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EU LAW LIVE 2020 © ALL RIGHTS RESERVED
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The COVID-19 crisis: lessons from risk regulation for EU leaders Anniek de Ruijter and Maria Weimer
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The European Union is living in a state of public health emergency. The COVID-19 epidemic is rapidly spreading across the EU causing a massive upheaval of public health systems, politics, economic relations, free movement and last, but not least, the lives of millions of people across the continent. According to the World Health Organization, COVID-19 is an international pandemic with 120,000 laboratory-conrmed cases so far, and 4,600 deceased worldwide. The public health risk associated with a pandemic outbreak epitomises what Ulrich Beck and other sociologists of risk have referred to as late-modern, man-made or manufactured risks. This particular disease ts the bill in that it is arguably the result of globalisation and the diminishing space for and human consumption of - wildlife. The management of such risks denes the structures of contemporary society, transforming it into what Beck calls the ‘risk society.’ The latter is dened by the paradoxical coexistence of progress and risk – while reaping the benets of globalisation and technological progress, we are also increasingly faced with its negative side-effects and new contemporary risks that are not truly controllable nor fully measurable.
The COVID-19 outbreak displays all the characteristics of such late-modern risks, particularly due to the globalised context in which it takes place, which is key when we are trying to conceive of appropriate regula-
1. Anniek de Ruijter is Associate Professor and expert in EU health law and Maria Weimer is Associate Professor and expert in EU risk regulation at the Amsterdam Centre For European Law and Governance, University of Amsterdam.
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tory responses. Such risks are often ‘invisible,’ which means that they evade human perceptive abilities and can only be identied through recourse to specialised science. The case of COVID-19 is such a risk, in that in terms of policy there is only the preparedness for the unknown – and now when the risk is manifesting, we are scrambling to understand its global magnitude and impact. At the same time, COVID-19 also painfully illustrates the distributional aspect of these types of risks – when their manifestation comes with enormous economic, social and human costs provoking conicts over distribution and testing solidarity among people and states. The good news is that unlike as Trump might have it, the European Union is a world leading risk regulator with a constitutional commitment to a high level of protection of public health and an institutional structure in place to address public health risks and emergencies. The bad news is that situations of scientic uncertainty and high politicisation make it very hard for the EU to play this role. The COVID-19 crisis presents a steep challenge to the EU as a risk regulator given the unprecedented level of the current emergency. The EU and Member States have to take decisions in the face of rapid spread of the disease, rapidly changing scientic information and therefore under considerable time pressure. How can the legal framework as developed in the context of EU risk regulation and public health help in guiding the EU’s response? The EU legal framework for EU public health emergencies
The EU commitment to ensuring a high level of human health protection is enshrined both in the Treaties and the Charter.
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According to the EU Treaties, responding to public health emergencies, such as COVID-19, is primarily a responsibility of the Member States. EU action is limited to supporting, coordinating or complementing action by Member States, as well as adopting incentive measures and recommendations (Article 168 TFEU). This is due to limited EU competences in matters of health policy. However, EU action in the eld of public health emergencies should be seen within the broader EU framework of public health law and policy. The EU commitment to ensuring a high level of human health protection in the denition and implementation of all its policies and activities is enshrined both in the Treaties and the EU Charter of Fundamental Rights.
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facturing and central authorisation of pandemic vaccines and other emergency medicines. For this purpose, the system also provides the Commission with the ability to declare an emergency in case the World Health Organisation has not done so. Crosssectoral coordination is taking place in a more ad-hoc manner in that the European Commission established a ‘COVID-19 response team’, with ve commissioners coordinating the work in different areas.
Over the years, the EU’s role in responding to public health emergencies has grown, especially as a result of the Anthrax scare in 2001 and the consecutive health scares of SARS and Bird Flu. In response to the last large scale event of the Swine u outbreak, the EU regulatory system was boosted by the 2013 Health Threats Decision. The latter is applicable to a wide scope of public health emergencies (including bioterrorism and environmental risks) and formalises some of coordination and emergency management and decision-making procedures. The Decision incorporates an older Communicable Disease Early Warning and Response Mechanism (EWRS). It also institutionally formalises the Health Security Committee that encompasses a number of sub-groups including one on public health communication. The European Centre for Disease Control (ECDC) manages the Early Warning and Response Mechanism through which contact-tracing of infected individuals throughout the EU becomes possible and communications about disease outbreaks can be communicated in a closed system of national public health institutions. The ECDC is also regularly updating its risk assessment on COVID-19 situation in Europe. The health ministries are represented in the Health Security Committee which is chaired by the European Commission.
Furthermore, the Health Threats Decision foresees the possibility of voluntary public procurement of medicinal countermeasures and medical equipment. In the aftermath of the Swine Flu outbreak a mandatory system was intended to ensure EU solidarity in times of emergency and to respond to the vast asymmetries that occurred in the procurement of swine u vaccines across the EU. However, in 2013, by the time the Swine Flu was already out of the regulators’ minds, the Member States only agreed to sign on to a voluntarily system of public procurement. Currently 20 Member States have signed on to a tender for medical supplies, in order to prevent ‘useless competition between EU Member States and prevent international speculation.’ Lessons from EU risk regulation What are the lessons from EU risk regulation and its underlying principles, as developed through a long line of EU legislative and case law developments, for the current management of the COVID-19 outbreak in the European Union? The role of EU law, and of law more generally, in the face of scientically complex and rapidly moving
Under this framework Member States are obliged to inform the ECDC, the Health Security Committee and the European Commission of counter measures that are adopted at national level, ideally before these are implemented. Furthermore, urgent implementing measures can be taken by the European Commission for triggering the manu-
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developments, is to organise the process of how public decisions on risk should be taken. It is the adherence to such a legally mandated process that makes the outcome of decisions legitimate and acceptable. A fundamental principle of EU risk regulation is the principle of risk analysis, which mandates that every decision-making process on risk must consist of a scientic risk assessment, and a politically responsible and democratically legitimated risk management. It must also be accompanied by effective risk communication between and among public authorities and between the latter and citizens. The main purpose of the risk analysis principle is to ensure a balance between science and politics in risk regulation.
The role of EU law is to organise the process of how public decisions on risk should be taken designated agencies, such as the ECDC. With regard to risk assessment the COVID19 poses signicant challenges, as there is no scientic certainty with regard to the precise nature of the risk. In this regard most national agencies are well informed and coordinated by the ECDC. However, the risk assessment in the case of COVID-19 clearly goes beyond the assessment of the hazard, namely the virus itself, but also includes questions concerning critical infrastructures (business continuity, availability of medical equipment, surge capacity of hospitals) and the way these will be affected in the Member States. Here it is clear that currently the EU Health Security structure is scrambling to play catch up. This challenge was already outlined in the evaluation of the Inuenza A H1N1 outbreak, but in the meantime it is clear that risk assessment in this re-
The risk assessment of COVID-19 A risk assessment is an essential procedural guarantee, which ows from the more general duty of care, and ensures scientic objectivity. It must be independent, excellent and transparent, and be carried out by scientic experts (Pzer, T-13/99), mostly especially
Risk assessment is highly fragmented and politicised - not all Member States are eager to share how many antivirals they have stacked up in their stockpiles.
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to public health by giving precedence to the requirements related to the protection of those interests over economic interests (Bayer, T-429/13 and T-451/13). A situation of scientic uncertainty triggers the application of this principle. While a zero-risk apThe risk management of COVID-19 proach is not allowed, the precautionary principle calls on the institutions to take proFollowing the Court of the European tective measures without having to wait unUnion’s case law, science must inform, but til the reality and seriousness of risks becoshould not be the sole basis for making norme fully apparent or until the adverse health mative choices involved in public decisioneffects materialise (BSE, C-157/96 and Cmaking. It is the task of risk managers, con180/96). Moreover, precautionary measures sidering scientic advice, to decide on whethave to be proportionate. In other action is warranted and her words, they must be approwhat kind of action. This Risk managers must priate to contain and mitigate means often difcult, political consider the precauthe outbreak and not more resand ethical choices, which can trictive than necessary to achievary from one society to anottionary principle, a her according to the threshold fundamental principle ve the ultimate objective of public health protection. of risk deemed acceptable. In of EU risk regulation, other words, which risks societies are willing to accept, and a general principle What role for EU leadership? and what the levels of protecof EU law What we currently see is that tion should be, is a decision for many commentators and citipolitical institutions. In doing zens are looking at the EU as a benchmark so, risk managers are obliged to ensure a of whether their own country is taking the high level of public health protection (Artiright precautions. However, legally the cle 9 and Article 168 TFEU). They must also Member States have clearly chosen to only consider particular circumstances on a casegive the EU a limited role in this respect, for by-case basis, the severity of impact on puexample when it comes to ensuring the avaiblic health, the reversibility of such impact, lability of a centrally authorised vaccine. As and the current perception of risk based on a consequence, it is to be expected that once available scientic evidence (Bayer, Tvaccines become available, a situation simi429/13 and T-451/13). lar to the Swine Flu H1N1 outbreak will occur, where some Member States through Most critically, risk managers must consipre-purchase agreements bought up all the der the precautionary principle, a fundavaccines available for the whole of the EU. mental principle of EU risk regulation, and a Another area where we might expect congeneral principle of EU law. It requires the tention is when the EU will give guidance authorities in question, to take appropriate for the determination of risk-groups for vacmeasures to prevent specic potential risks gard is highly fragmented and politicised, where not all Member States are eager to share how many antivirals they have stacked up in their stockpiles.
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We do need the EU to manage and coordinate the science and the appropriateness of treatment
We do need the EU to manage and coordinate the science and the appropriateness of treatment. We also need the EU to organise solidarity through a mandatory system of public procurement of medicinal equipment and medicines; and we even need the EU to make the choice as to who – what countries – receive these items rst. In other words, we could use the EU to organise solidarity among Member States, even when this means having the highly political role of determining risk groups and treatment plans, and being able to dish out vaccines and antivirals. This would rationalise the response and ensure its efciency and effectiveness. The more proactive stance of the EU this week is a good sign in this respect. However, on all other aspects, the Member States should remain in charge of risk management in public health emergencies.
cination and the treatment of the virus with antivirals. During Swine Flu (which might be considered a dry-run for what we are facing today) Member States did not all follow the EU’s advice on risk groups and treatment protocols, which caused a lot of distrust and unrest among the population. At the same time, we would not nd it desirable for the EU to fully take charge of the risk management in the Member States. And many calls for a simplistic centralisation of coordination and health powers at EU level are disregarding the vast complexity of organising public health and healthcare at Member State level that goes far beyond the issues of redistribution of public nances. If the EU was to oblige the Member States to order a particular vaccine for medical countermeasures or to take a certain precautionary approach, it would not be able to consider these intricate differences. The (public) health systems in the Member States differ vastly, even within the states due to federation, culture, availability of resources, training of staff, equipment and the upkeep of critical infrastructures in general. So here we see the Member States adopt very different responses. Which is to be expected. So why would we need the EU then in a risk management role?
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When national governments and public authorities manage COVID-19 risks, they should be clear about their political responsibility. While it is the task of risk assessors to communicate scientic advice including uncertainty information transparently, risk managers have to be transparent about political choices. Politicians must be able to take political responsibility for action, explain clearly which legal, political, ethical,
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or socio-economic considerations inform their actions next to scientic advice. They should not hide behind science, nor act as scientic experts. Risk assessment and risk management are often intertwined in practice, but the responsibilities are clear. Democratically elected politicians, not scientists, will be held responsible for how they handle the COVID-19 crisis.
References for further reading: Maria Weimer, Risk regulation in the Internal Market - Lessons from Agricultural Biotechnology (Oxford University Press, 2019) Maria Weimer, The Origins of ‘Risk’ as an Idea and the Future of Risk Regulation, European Journal of Risk Regulation 8 (2017), p. 10 Mark Flear & Anniek De Ruijter, Guest Editorial to the Symposium on European Union Governance of Health Crisis and Disaster Management: Key Norms and Values, Concepts and Techniques, European Journal of Risk Regulation 10 (2019)
The COVID-19 crisis puts Europe’s capacity to govern both effectively and legitimately to a test. It sheds light on the unique features of the European integration project (such as its commitment to unity in diversity), as well as unleashes some of its darker tendencies. Like in other situations of uncertainty and political and economic upheaval, this crisis can be both a threat to and an opportunity for European integration. Will Europe’s response to COVID-19 unleash negative dynamics of populism and protectionism, or will it strengthen the EU system of public health governance, and more generally, the EU’s sense of collective identity and solidarity? Let us hope so. The EU is at a crucial point and further actions will determine which direction will be taken.
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Towards an ‘EU Data Act’ to facilitate Business-to-Government data sharing Alberto Alemanno
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Thanks to our enhanced capability to collect, process and use data, we can nd out where the epicentre of an earthquake is, how to limit a pandemic like COVID-19 from spreading, and how to reduce pollution in cities. This data ‘revolution’ can be contextualised within a broader three-centuries long attempt at neutralising irrationality in human-decision-making by gaining increased access to information.
The EU recently unveiled an ambitious data strategy that could make Europe the most secure, responsible, attractive jurisdiction to store, process and re-use data ahead of the 'next wave' of data creation. One of the most overlooked components of such a strategy has to do with how data can be accessed, reused and shared so as to tap into their full potential for European society as a whole. This brief essay provides an introduction to this novel, rapidly moving legal and public policy space.
Yet, while virtually every organisation today, including small companies or grassroots movements, is a data entity, only a few of them, generally in the private sector, have collected a vast amount of data and acquired a unique capability to make sense of such information.
Why data sharing matters Today, data is regarded as an essential, infrastructural resource for economic growth, innovation and overall societal well-being.
1. Alberto Alemanno is Jean Monnet Professor of European Union Law & Policy, HEC Paris and served as a Rapporteur of the B2G data sharing expert group at the European Commission. He is also the founder of The Good Lobby. Email: alemanno@hec.fr.
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As a result, most of this much-prized real-time data is in the hands of businesses – be they telecom, credit card, social media companies –, and not that of public authorities, which lag behind in embracing the power of data to inform their daily policy and service-delivery action. Hence the challenge – which has pioneeringly been taken up by the European Commission and the expert group that I had the pleasure to join as rapporteur – to explore the creation of an enabling environment for privately-held data to be shared with - or at least given access to - public authorities when discharging their public interest missions. This is what is generally referred to as Business-toGovernment (as opposed to Business-to-Business) data sharing. How data serves the public interest Indeed, data in general, and privately held data in particular, has a high potential to serve the general public interest by informing decision-making, providing for new scientic insights and solving policy issues, thus enabling more targeted interventions and improving public service delivery, amongst others. In particular, data can serve the public interest in at least ve different ways: 1. to improve situational awareness, that is, what we know about a given phenomenon or reality; 2. to better understand the causes and variables behind the current situation; 3. to more accurately predict and forecast; 4. to run more rigorous impact assessments and evaluations (of any intervention) in order to better dene the policy problem and identify the most effective policy options; and 5. to guide public management decisions either taken by humans or automated processes.
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Most of this much-prized real-time data is in the hands of businesses
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The role citizens play in the data sharing equation remains limited and ancillary
There are currently not enough successful models for data sharing collaborations between data providers (private sector) and data users (public sector). No agreed framework enables effective partnerships. For example, in an emergency case such as COVID-19, it is not clear whether and how a mobile operator can or should share its data with the emergency services. From such a perspective, COVID-19 represents a missed opportunity to mobilise privately-held data to improve our risk assessment and management capabilities. Counterintuitively enough, there is hardly any demand for privately-held data to help solve this major health crisis. While in China virtually all operators have provided mobility data – from telecoms – to help understanding the propagation, and the government actually is using it, in the EU this does not seem to occur. Yet telecoms mobility data may improve the current propagation model up to 30%..
The Commission plans to create a legal foundation for a data market that is slowly emerging — for example when private companies share their data to improve disaster relief or trafc congestion in major cities. For the time being, however, most of the efforts focus on getting the supply-side ready (essentially the private sector) – by developing data-share models, de-risking the data, preparing the skill-set for the personnel – for B2G data-sharing, but omit the need to sensitise and prepare the demand side (the public sector). More critically, at a time in which reputation-based mechanisms transcend the mere nancial rating and venture into state-driven ‘social credit’ scoring, the role citizens play in the data sharing equation remains limited and ancillary to most solutions at stake. The B2G data sharing report, which has beneted from the experience and dedication of 23 experts coming from different walks of life, strives to address both of these systemic shortcomings. By carving out a role to play for both the public sector and citizens, it offers an initial set of ethically-aware paths the EU might chart to break new grounds in advancing and accompanying business-to-government data sharing.
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How privately-held data can be accessed by the public sector Currently, various methods exist that allow or even require private companies and civil organisations to share, or merely re-use, data with the public sector. If data access is con-
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ceptualised on a continuum from closed to open, the range of existing public sector accessibility methods can be described along such a spectrum, each making more or less data available to those authorised. Going from the ‘most restricted’ to the ‘most accessible’, the following can be presented as illustrative non-exhaustive examples:
The obstacles to data sharing The main tool used today for B2G data sharing is contractual agreements. Yet, usually contracts can be phrased in a highly restrictive way vis-à-vis actions to be performed on data and may therefore limit its use or render big data analytics unworkable. For example, restrictive language in clauses can prohibit actions such as merging, enriching, decompiling, structuring, cleansing, etc. (4) Companies may be reluctant to enter into data-sharing agreements due to the difculties in tracking down and controlling the usage of their data. Furthermore, the complexity in setting up various contractual agreements when different sources of data are accessed increases costs to the parties involved. Finally, there may be cases where the data provider’s dominant position could give rise to unfair contractual conditions to access data (5).
1. a data provider (2) conducts all the data analysis in-house and then shares with public authorities, or the general public, the insights that emerge from that analysis; 2. a data provider can host external researchers within its network to analyse data and report ndings publicly; 3. a data provider works with other data providers to share data or insights derived from the data amongst themselves, and also with public authorities; 4. a data provider shares data with trusted third parties; and, ultimately, 5. a data provider allows direct access to some of its datasets.
It is no surprise that B2G data-sharing collaborations are not evolving into sustainable initiatives, but take the form of standalone pilot projects. In particular, since the experience gained is not shared across pilots, new entrants into emerging partnerships invest time and money into structuring and tackling operational and legal issues that may have already been addressed by others. This
Through these mechanisms, data can be shared on a voluntary basis or to comply with certain legal obligations. For instance, reporting obligations can mandate businesses to share certain data that is necessary for the public sector to carry out its functions on a continuous basis and for free. (3).
2.Data providers in B2G data interactions are typically private companies, but could also include civil society organisations, and charities. 3. For certain reporting obligations, sometimes the public sector reimburses certain costs incurred by the business for the sharing of the data as long as such an obligation is put only in one individual company and this can affect its competitive position vis-à-vis other companies in the same sector. 4. Out of 129 companies that responded to a survey devoted to data sharing in the EU, 41% of respondents pointed to unfair conditions in contracts as main obstacles to data sharing. 54% of respondents identied legal uncertainty (what to lawfully do with the data) while 41% of respondents pointed to unfair conditions in contracts as main obstacles to data sharing. Critically, 66% pointed to denial of access as the main obstacle. Everis Benelux, Study on data sharing between companies in Europe, 24 April 2018, carried out for the European Commission Bird&Bird, ‘Data-related legal, ethical and social issues’, August 2019
5. Ibidem
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of data stewards in both the public and private sectors. Furthermore, the European Commission will create a network of such data stewards, as a community of practice in the eld, similarly to what has occurred with Data Protection Ofcers (DPOs). The Commission also intends to embark on pilot B2G data-sharing collaborations to be organised in regulatory sandboxes, or take the form of public-private partnerships (PPPs) to help assess the potential value of data for new use-cases.
is all the more so in the case of emergencies, where time is critical and any time lost in structuring collaborations can result in a loss of lives. As such, this situation hinders both public and private actors’ capacity to move away from limited experimentation based on ad hoc and voluntary cooperation to the systematic use of these new data sources. Overall, an entangled set of legal, organisational, technical, social, and ethical risks dissuade from – or at least do not incentivise – entering into data sharing collaborations. Those risks manifest themselves all along the data lifecycle – that is, all along the sequence of stages that a particular unit of data goes through from its initial generation or capture to its eventual archival and/or deletion at the end of its useful life.
Towards an EU Data Act to facilitate data sharing
As a part of its EU data strategy, in 2021, the Commission will roll out its new ‘Data Act’, which will remove barriers and introduce rules for business-to-business and businessto-government (B2G) data sharing, and potentially give people an ‘enhanced portabiIn addition, the value of data as an asset is lity right’, or the ability to bring their data not fully recognised, in particular by public from one company to another. Such rules bodies that face difculties identifying priwould allow the public sector vate sector data that can solto tap into the wealth of data ve public interest problems. There is indeed a generalised The value of data as an from private companies to benet society. In acquiring prilack of a data sharing culture asset is not fully recogvately held data for public indue to the limited and slow dinised by public bodies terest purposes, preferential gital transformation happeconditions would generally ning in the public sector. Furtapply, but a compensation mohermore, specic datadel still has to be developed. Rather than sharing legislation exists in certain Member providing overly-detailed, exhaustive reguStates and sectors, but not in others. This inlatory frameworks, the EU seems to favour creases fragmentation within the EU’s interexperimentation in a federalist logic by pronal market, in which there is growing uncerviding basic infrastructure, such as common tainty and lack of clarity on the rules and proEuropean data spaces. cedures governing B2G data sharing. To overcome this, the EU intends to require As a result, the European Union will be the Member States to put in place national gorst jurisdiction in the world to provide a fravernance structures that support B2G data mework that will try to stimulate and incensharing. It will also recognise the function
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tivise privately held data to be shared and reused for the public interest. Through its data strategy, the EU might become a global leader in fostering not only a market for B2G data access, but also a sensible, inclusive and participatory data culture through a set of viable, practicable and scalable welfareenhancing solutions. Only a more cautious, humbler and humanised approach to the unprecedented amount of data we produce and collect everyday may pave the way for a future in which it is the human factor to dene our daily life experiences.
Background reading: - Alemanno, Alberto, Data for Good: Unlocking Privately-Held Data to the Benet of the Many (June 11, 2018). 9 European Journal of Risk Regulation 2 (2018).
Available here and here
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The EU will be the first jurisdiction in the world to stimulate and incentivise privately held data to be shared and reused for the public interest.
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News Highlights 9-15 February 2020 Council of the EU Statement concerning Turkey and migration crisis, ahead of meeting with Turkish President
Qualcomm challenges Commission’s fine for predatory pricing in proceedings before CJEU Monday 9 March
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Monday 9 March
An action for annulment brought by Qualcomm Incorporated before the General Court against Commission Decision C(2019) 5361 was published. The applicant claims that the Commission erred when considering that it had breached EU competition rules.
Four years after the Joint Statement on migration agreed by the EU and Turkey, the latter announced that it would no longer stop the ow of people leaving its country and seeking to enter the EU. As a result, an extraordinary Foreign Affairs Council was held, and a statement was issued on EU’s migration crisis and recent political choices made by Turkey in the context of the Syrian war, ahead of a meeting with the Turkish President.
New EU-Africa Strategy Monday 9 March
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Following the annual tenth meeting between the EU and the African Union in February, a Joint Communication was published containing a proposal for a new Africa Strategy. Based on ve partnerships, the document aims to benet both continents. The nal draft is due to be endorsed at the European Union – African Union Summit in October 2020.
In support of judicial independence, the rule of law, and Polish judges: Bar Associations in Vienna Tuesday 10 March
ECtHR’s Grand Chamber to rule on withdrawal of broadcast licence of Moldovan private television
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The Strasbourg-based court ruled that the Slovenian authorities had acted in compliance with the ECHR and that they had taken the necessary steps to improve the precarious living conditions of Roma communities in its country. In its judgment, the ECtHR recalled that the scope of positive obligations, such as the ones under Article 8 ECHR, must be determined on a case-by-case basis.
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The Court of Justice’s Grand Chamber ruled in Gómez del Moral (C-125/18) that mortgage loan agreements concluded between a consumer and a credit institution, in which the interest rate varies according to an ofcial index, fall under the scope of the Unfair Terms Directive.
ECtHR: Slovenia complied with its positive obligations by ensuring access to safe-drinking water and sanitation for Roma communities Tuesday 10 March
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Tuesday 9 March
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The Grand Chamber of the European Court of Human Rights will hear the case NIT S.R.L. v. Republic of Moldova (application no. 28470/12) after the Chamber to which the case was allocated relinquished its jurisdiction. The case concerns the legality of the Moldovan authorities’ decision to withdraw the broadcasting license of a private television station due to its lack of compliance with the duties of neutrality and impartiality in the publication of news bulletins.
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Impact of coronavirus on travel by air: EU Slot Regulation
European Commission publishes its ‘green and digital’ Industrial Strategy for Businesses Tuesday 10 March
Tuesday 10 March
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The Commission proposed to temporarily alleviate airlines from their airport slot usage obligation under EU rules, given the impact of coronavirus on the aviation industry.
Based on three key priorities: global competitiveness and a level playing eld, climate neutrality by 2050, and moving forward with digitalisation, the latest Industrial Strategy issued by the European Commission seeks climate neutrality and digital leadership.
CJEU ruling on the ex officio powers of national judges concerning unfair terms in consumer contracts
Does the Immunities Protocol apply to members of the ECB Governing Council and how? Tuesday 9 March
Wednesday 11 March
CJEU ruling on turnover taxes under the VAT Directive
Proposals for EU Environmental Measures: Circular Economy Action Plan
Wednesday 11 March
CJEU imposes penalty on Italy for failure to recover unlawful State aid
Jean Richard de la Tour appointed as Advocate General
Thursday 12 March
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By its judgment in Commission v Italy (C-576/18), the Court of Justice considered that Italian authorities failed to full the obligation to recover unlawful aid granted to hotel rms in Sardinia. The Court stated that the impossibility of the authorities to recover the money had not been proven, and that the authorities could not rely on the legitimate expectations of the beneciaries of the aid to escape the obligation.
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Jean Richard de la Tour was appointed Advocate General at the Court of Justice of the European Union.
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The Court of Justice stated that, under some conditions, the VAT directive precludes national legislation under which loans or secondments of staff from a parent company to its subsidiary are not regarded as relevant for VAT purposes, where they are made against the sole reimbursement of the related costs.
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Aiming to tackle environmental issues and promoting sustainability, a new Circular Economy Action Plan was published by the European Commission. Apart from waste, that has been identied as a main concern of citizens, the draft is focused on four other aspects: Electronics and ICT, textiles, plastics and food, and packaging.
Thursday 12 March
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A judgement on the interpretation of Article 6(1) of Directive 93/13 on unfair terms in consumer contracts was handed down by the Court of Justice. By this judgement, the Court rules that a national court is not required to examine of its own motion and individually all the contractual terms, but only those that have been disputed by the consumer.
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The Riga District Court requested a preliminary ruling on the applicability of EU rules on privileges and immunities to the members of the Governing Council of the European Central Bank. The case is specically focused on the President of the Bank of Latvia, who is also a member of the Governing Council of the ECB, and the application of Protocol No 7 to the TFEU.
Wednesday 11 March
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Ruling of the Court of Justice on the meaning and scope of Social Security Regulation 883/2004
ECB measures to support banks and access to credit in the context of the coronavirus outbreak
Thursday 12 March
Friday 12 March
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The Governing Council of the European Central Bank (ECB) announced a series of measures to alleviate pressure on banks and companies, particularly small and medium-sized enterprises, in the context of uncertainty caused by the coronavirus outbreak.
The Court of Justice handed down its judgment in Caisse d’assurance retraite and de la santé au travail d’Alsace-Moselle (C-769/18), answering the questions referred to it by the French Court of Cassation regarding the scope of application of the Social Security, as well as the equivalent nature of a French and a German benet related to mentally disabled children.
Commission approves first State aid to compensate damages caused by COVID-19 outbreak Friday 12 March
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The European Commission approved, within a timeframe of 24 hours from notication, a Danish aid scheme of €12 million to compensate organisers for the damage suffered due to the cancellation of large events or of events targeted at risk groups due to the Covid-19 outbreak.
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Nº9 · MARCH 14, 2020
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This Week’s Analyses & Op-Eds AG Kokott’s Opinion in C-66/18 (Hungarian Law on Higher Education Institutions)
Commission challenges authorisation granted to Member States to exercise EU exclusive competences
By Paul Dermine
By Merijn Chamon
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Analysis on the Opinion regarding the amendments to the Hungarian law on higher education institutions, in which AG Kokott found the Hungarian attempt to discipline foreign educational institutions, and to curb academic freedom, to be particularly problematic, with regard to both WTO law and EU law.
Merijn Chamon analyses the main aspects and potential consequences of the latest inter-institutional dispute brought before the Court of Justice of the EU: Commission v Council of the EU (C-24/20). For this purpose, the author focuses on three grounds: the institutional balance in the EU, the Council of the EU’s competence to amend Commission proposals and the conditions under which Member States are authorised to exercise EU exclusive competences.
Temporary Derogations to the Right to Legal Counsel under Directive 2013/48/EU: the VW case By Francesco Rossi
General Court judgments in Valencia C.F. v Commission and Elche C.F. v Commission: Another yellow card to the Commission in State aid cases
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Analysis of the VW case (C-659/18), where the Court of Justice has ruled that the exercise of the right to legal counsel under Directive 2013/48/EU cannot be made conditional upon the appearance of the suspect in court. Francesco Rossi explains why this is a pivotal judgment and assesses the Court’s approach in light of the diversity of national legislations and practices in this eld.
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By Juan Jorge Piernas López
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Op-Ed on the latest football-State aid judgments by the General Court, putting them in the context of the recent case law of EU Courts:a more demanding approach visà-vis the Commission’s duty to investigate State aid cases and the burden of proof that the European institution bears.
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