Nº10 MARCH 21
2020
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AN INTERVIEW WITH
ELEANOR SHARPSTON ADVOCATE GENERAL OF THE COURT OF JUSTICE
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EU LAW LIVE 2020 © ALL RIGHTS RESERVED
Nº10 · MARCH 21, 2020
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Interview with Eleanor Sharpston ADVOCATE GENERAL OF THE COURT OF JUSTICE
By Daniel Sarmiento
Daniel Sarmiento: Thank you very much for being here with us. You had an international upbringing which I am sure had an inuence on your career choices and in particular on your interest in European affairs. Can you tell us a little about your childhood and how it played a role in your decision to become a lawyer, and in particular, an EU lawyer? In a sense, I think I should start almost before that, by saying that my family is a mixed family. My mother was Irish, an Irish Catholic convert, and my father was Lithuanian Jewish. They both had scholarships to Cambridge University, where they met as students. They travelled a lot after that. I happen to have been born in London, but that was pretty
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much by accident, because it was in between two extended periods when my family was working outside the UK. Just before I was six, the family moved to Brazil because my father was meant to be setting up the Brazilian subsidiary of a British company. So in fact my rst foreign language was Portuguese – for the simple and good reason that I wanted to play football with the boys on the streets. And if you are a small foreign girl with pigtails and you want to play football with the boys, you had better not have an additional barrier to your endeavours! So I learnt Portuguese very quickly. I think I should probably confess that it wasn’t totally polite Portuguese that I learnt. I wouldn’t wish to use it in a discussion with the Portuguese Supreme Court when they come and visit the Court of Justice.
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After four years in Brazil we were very briey back in the UK; but then the family moved away again to Geneva, where my father was to work for an NGO (the International Standards Organization), and then later the UN in Geneva (UNOG). So we lived in Geneva, and then France near Geneva. And then on to Vienna, where my father worked for UNIDO, the United Nations Industrial Development Organisation. So throughout that period from late childhood through adolescence to adulthood, I was what is called in the rather unkind vernacular a ‘UNO-brat’. I was a child of the United Nations. And very obviously, from that background, you get foreign languages. They don’t really seem very foreign, they just seem the natural thing to speak. And so I am European to my ngertips. So by the time you started university you were uent in many languages. How did your knowledge of foreign languages have an impact on you professionally? Well, rst of all, what did I read at university? Answer, I didn’t read law. I went up to university on Classics, on Latin and Greek. I read economics for a year. Then I did modern languages with some Classics in it so I was reading French and indeed Spanish. I wanted to look at the Siglo de Oro literature and also twentieth century literature, so whether it was Lope de Vega or Borges, I was immersed in it. Then I went back to doing economics, and then nally at the end of that, in my fourth year at university after graduating in economics, I did get around to reading some law. I did one year’s law at university and then obviously my professional training after that. That is actually almost the ideal background for doing EU law, because it gives you a sense
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Eleanor aged 17, in Venice with her mother
of the economic basis, it gives you an awareness that there are different legal traditions and different strands that go towards making EU law. And it also – and perhaps this is crucial – it also spares you from the misconception that you otherwise automatically have, which is that the way that your particular legal system does something is a kind of God-given way of dealing with that aspect of law, and the only way of doing it. That absence of preconception is perhaps the nicest thing that came across from such a mixed background and such a mixed time at university.
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What drove you to becoming a barrister?
left-wing college to being in a small college full of classicists, but that was quite nice for someone who had been a classicist earlier on. It gave me a chance of doing interdisciplinary work, because my research was between economics and law. And I discovered the hard way just how difcult it is to be in that space between two disciplines.
I think I was always going to be headed that way in the sense that, among the various types of profession open to you if you have a law degree or a background in law and you wish to practise law, I was much better suited to being a barrister than being a solicitor or notary or a law academic. It was the obvious The real challenge was probably that, just as way for me to go. Possibly there was also in in Cambridge I had tried to do everything sithere the fact that my director of studies at multaneously, from my studies, through roKing’s College, Cambridge was a very ne wing, through journalism, and wonderful man named through student politics, so Ken Polack who had been a too in Oxford I was also barrister before he became trying to do everything sian academic. Ken had a treThat absence of pre- multaneously. I had a grant mendous inuence on me, not least because his heart conception is perhaps as a research student in Oxford, but I was a woman was exactly in the right place the nicest thing that in a hurry and I also needed (he was a good libertarian, public servant, left-wing law- came across from such to qualify at the Bar. So, in yer), but he also had immena mixed background my nal year in Oxford I was trying to write up my rese rigour as a lawyer. He and such a mixed time search, and to qualify at the drummed into everyone who Bar, and to be the President studied with him that if you at university of Oxford University Wowere going to work pro bono men’s Boat Club, all simulfor a good cause, you actaneously in the same year. tually had to be better techniAnd that was a challenge. cally than the lawyer who had the fat brief on the other side of the case. It was not enough to have a good heart and I can imagine! then mess up the legal arguments. You had technically to be sharper than the person Well it was a challenge which worked ne who had the commercial brief. And that was up to the moment after Oxford won the Woa very important lesson. men’s Boat Race in 1980, with the Oxford President E. Sharpston sitting in the ‘six When you nished your studies in Camseat’ of that boat. The day after the Women’s bridge, you moved to Oxford, that was in Boat Race, for some reason there was no 1978. How was that change in terms of world news. There had not been an earthquawhat it meant for your career? ke, there had not been a plane crash. And The Times – which was the newspaper that at the time published the law reports which everWell, it was a change in many ways, I went yone read – The Times had a hole on its front from being in a large college which was a
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page where it would normally put a photo. And so it put a photo there of the winning Oxford women’s boat race crew. With your humble servant, grinning her silly ears off, right in the middle of the photo. And that made life a bit complicated.
wrong objective, but it seemed a little difcult to suggest I ‘lacked’ motivation, application and self-discipline, given that I had spent the last six months doing three things simultaneously. Famous last words!
Why? Famous last words! Well, I was called in by the then Dean of the Inns of Court School of Law, and I think if he had had any proof against me apart from the photo, my legal career would have stopped right there, because he would have thrown me off the course. But he didn't actually have any additional evidence against me and I didn’t give him any in that interview. And so, after a rather uncomfortable half an hour, during which he speculated aloud that I might have skipped some lectures, or done other very wicked things, I was ejected from his ofce but not mercifully from the course, with the following words ringing in my ears:
Once you became a barrister, you started practising law in many areas I am sure, but I suppose you also started practising EC law, as it then was. What was your rst contact with European law in those years? Well, actually my whole career was doing what was then EC law (and then became EU law), plus the ECHR side of life, because that was also European, plus some academic work on comparative law, mainly French law.
“I can tell, Sharpston, that you will never make anything of a career at the Bar, because you lack the necessary motivation, application and selfdiscipline”. And I remember getting out of his ofce and checking that my head was still on my shoulders and then thinking: “You silly man!” Because you might have thought that I had applied those qualities to the Winners in the Oxford women’s boat race
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The barrister story started because my Inn of Court (the Inns are four societies through which you become a barrister in England), my Inn of Court very generously gave me two major scholarships. They gave me a scholarship for my pupillage (my traineeship), but they also gave me their European law scholarship. And that enabled me to spend ve months at the Commission in Brussels as a stagiaire working with John Temple Lang, one of the
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great gures of competition law. And then two months at the Court of Justice, which is where I rst made contact with Sir Gordon Slynn, then Advocate General. I was a stagiaire in his chambers, so I did some work for him at that stage. And that was really the basis for everything that then followed. I returned to the Bar hoping to nish my pupillage and to go into doing EU law, and the Chambers to which I applied looked at me as though I had green skin and antennae. “What is this woman thinking about? EU law, well rst of all, that's not really a subject, and secondly, it's not what women do, women do family law, they do the rather minor end of criminal law, but they certainly don’t do cutting edge intellectual law. This is ridiculous.” In fact, it took me ten years to get a seat in chambers in London doing EU law. In the intervening time I worked in Brussels, initially with a law rm. I was then a member of the Brussels Chambers of Jeremy Lever QC, very much a big gure in competition law and anti-dumping law. And then I went to the Court and spent some time working for Sir Gordon Slynn as a référendaire. But it did take me ten years to get established in London doing EU law work.
The Chambers to which I applied looked at me as though I had green skin and antennae. “What is this woman thinking about? EU law, well first of all, that's not really a subject, and secondly, it's not what women do
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Throughout that time I did EU law. I never in fact had a general practice of which EU law was a small component. Rather it was the other way up: I did EU law across the board; and I therefore learnt painfully and in great haste whatever area of national law it was necessary to understand in order to run the EU law arguments in that area. So, for example if it was environmental law, if it was an environmental impact assessment case, then I had to learn about the Town and Country Planning Act. But it was not that I knew about the Town and Country Planning Act! I was brought into the case because it was an EU law case, and then I had to nd out the necessary national law to underpin the EU law arguments I would be running. What are your recollections of important cases you handled in those years? Well, I have a very, very vivid recollection of a case which was actually an ECHR case, not an EU case, but nevertheless one which was very important to me and also that left a bit of a mark on the national scene. It was a case called Brown and Others, but it was always known by its nickname, which was Operation Spanner. This was a case about consent and the law of assault. It involved a group of homosexual sadomasochists who were having consensual sex with each other. Only, of course, since it was SM sex, it could be categorised, classied, if you wanted to, as being that they were assaulting each other rather than that they were having sex with each other. I was brought into the case in (I’m almost going to say) a caricature way. I was at a training weekend for young lawyers and some-
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body bought me a drink and said, “I want to pick your brains, is there an ECHR point in this case that I am doing in the Criminal Division of the Court of Appeal?” And so I sipped my beer (I spluttered a little as I heard exactly what was going on) and I said, “There is an enormous ECHR point! There is a point under Article 8 ECHR (the right to privacy) and by the way and for good measure, there is probably a point also under Article 7, because was it really foreseeable that they would be prosecuted under the law of assault for what is consensual sexual conduct?”
me back to the UK and was in the House of Lords. And so, albeit in a much more formal context, we were back to having exactly the same kind of discussion he and I had had when he was a member at the Court and I was his référendaire. Arguing the various points of law - “what about this, what about this”? Except it was, “well, Miss Sharpston: well, what would you say to the following?”, “Well my Lord…”. But the intellectual exchange was exactly what we had done for years when I was working for him as a référendaire.
And there was a stunned silence around the table and they said, “Well, you are doing those arguments next Tuesday”. So I found myself on my feet in the House of Lords
And so I came into that case. I thought I would just be doing what a junior barrister normally does, which is to support the leaders. And then we had a meeting. We already had four QCs and four juniors involved. There were multiple defendants. I explained the ECHR arguments because they were not (let’s say) very well aware of what those arguments might be. And there was a stunned silence around the table and they said, “Well, you are doing those arguments next Tuesday”. So I found myself on my feet in the House of Lords. It was actually my tenth time ever on my feet as a barrister. So you can probably imagine the level of fear, adrenalin, everything that's going through the system. To make it even more interesting I was appearing in front of a vejudge House of Lords panel which included my former boss Sir Gordon Slynn, who had by that stage left the Court of Justice and co-
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That case obviously left a big, big mark. We took it on to Strasbourg. I did it pro bono in Strasbourg, sadly it didn’t go as it should have gone in Strasbourg. But there we are.
Later in the story I did another case which has haunted me ever since: the Metric Martyr case (or, to give it its correct title, City of Sunderland v Steve Thoburn). It was a case about a man who sold fruit and vegetables from a stall at a market and who insisted on making the sales in pounds and ounces rather than in kilogrammes; and he was prosecuted. (It was, incidentally, the only case I ever did for the prosecution rather than for the defence as a barrister.) He was prosecuted for having scales that did not weigh in both metric and imperial measure. If his scales had weighed in both, by the way, he would never have been prosecuted, because the city council couldn’t have cared less and they certainly didn't want a ght. But the sca-
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les literally only weighed in imperial measure. And so the inspectors defaced the stamp on the back of the scales, thus making them no longer t for legal transactions. And in due course he was prosecuted for still using them to make sales. And that case – Metric Martyr – was perhaps a precursor of Brexit and all that, because Steve Thoburn was being –it would be wrong to say ‘backed’, he was being pushed further down the road – by UKIP, the precursors of people like the Brexit party. The basic argument that was being made was that he had every right to sell only in imperial measure because the Weights and Measures (Consolidation) Act 1986 was later than the European Communities Act 1972. Therefore, the argument ran, it overrode the European Communities Act, and therefore it was perfectly possible to legislate in a way that was contrary to EU law and that was just ne.
The curious thing about that case was that the EU directive in question probably did go further than it needed to go in harmonising absolutely everything to do with weights and measures. And had one wished to, had I had the other side of the case to run, as it were, it would I think have been entirely possible to run a successful argument based on EU law. One would have said, “These sales have got nothing to do with free movement of goods. The goods have already travelled, they are not pre-packaged, they are being sold loose out of big cartons at a market. Any free movement of goods has already happened. The Directive insists on specifying down to the last inch what happens on weights and measures, and that is disproportionate and/or a violation of subsidiarity. And the Directive is not properly based on the legal base that is used. And I want a reference.” I am sure the national court would have been delighted to send it over to the Court of Justice; and I think there is at least a fair chance that the Court of Justice would have said that part of the directive was ultra vires. But that is not what UKIP wanted out of the case. In 1987 you became a référendaire at the Court of Justice for Advocate General, later Judge, Sir Gordon Slynn. What are your recollections of the Court in those years, and your fellow référendaires? Because, in fact you are one of those members of the Court at the moment who has been a référendaire in the past. Obviously, it was a much smaller Court. Counting absolutely everyone, we were less than 600 people. The Court is now over 2,000 people.
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Because it was a much smaller community and there was less pressure of work, there was more time to think and play with ideas. There were occasions for référendaires to meet each other and go for walks together on a Sunday, often with colleagues who were in Research and Documentation. And as we r a m b l e d t h r o u g h t h e L u x e m b o u rg countryside, somebody would say, “Do you think directives could ever have direct effect?” And we would start talking about that. Or we would start chewing over Factortame I, and whether EU law meant you could get interim relief against the Crown. There would be those who would say, “Well, but surely that's a new remedy, and I thought we didn’t have new remedies under [EU] law?” And then there would be others who would say, “Oh no, it’s just about disapplying some tiny little rule of national law (like that you don’t have interim relief against the Crown!) – and if you look at it that way round, of course it’s just a natural follow-on from Simmenthal … so it really shouldn’t be much of a problem deciding that case”. It was a really lovely time – a really exciting time intellectually – to be at the Court. There was a great feeling of collegiality; and there was a great freedom to explore concepts. To wonder whether you might ever get dama-
It was a really lovely time – a really exciting time intellectually – to be at the Court
ges against a Member State for a violation of EU law, for example. Ideas started bubbling up. And there were some very good people around us as référendaire. Just to name some examples: Sacha Prechal, who is now back at the Court as a Judge, indeed, who is the President of a Chamber of ve judges; Marc van der Woude, who is now the President of the General Court; Peter Gjørtler, who was in President Due’s cabinet and who is now back temporarily at the Court working in my cabinet; Kirsten Thorup, who was also in the President's cabinet (she is now a Court of Appeal judge in Denmark) … And some very nice French colleagues – Daniel Ludet and Hugues Calvet – who both made big careers in France. There were very good people around as référendaires, and there was a consequent freedom to play with ideas. You worked for Sir Gordon Slynn who is one of those few members who has been both an Advocate General and a Judge. Do you think that inuenced Sir Gordon Slynn’s subsequent judicial career? And were you there at the time when he made that shift? Absolutely I was. Of the three years I spent at the Court as a référendaire, the rst year was working with Sir Gordon while he was an Advocate General; and the second and third years - by the end of that time, I was his chef de cabinet - he was working as a Judge. Obviously, it proved to be very useful to me later that I had seen the Court from both perspectives. It was also useful in a different way, because it meant that I saw the different nature of the two jobs. And I also saw how Sir Gordon,
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Working for Sir Gordon when he was Advocate General was like going hunting with your panther in the jungle who was very much a free spirit, how Sir Gordon had reacted to being Advocate General and how he then reacted to being a Judge. If I may be permitted to be perhaps a little bit light-hearted here: working for Sir Gordon when he was Advocate General was like going hunting with your panther in the jungle. It was wonderful. I mean, obviously you stayed behind the jaws of the panther and you tried to keep up with the hunt, but it was a wonderfully free and exciting experience. And that was when he was Advocate General. When he was Judge, it was very different. It was like being inside the same cage in the zoo as a very frustrated panther. And the panther would rush up and down inside the cage lashing its tail (particularly when it had come off second-best in a délibére) and occasionally the panther would turn around and lash out with its claws at anything within range, which might include you. And when you came out of one of those encounters, you mopped the blood off, and then you thought, ”It's not the panther’s fault. The panther does not like being a panther in the zoo. The panther much, much preferred being a panther in the jungle”. And that was very useful to me much later, after I joined the Court. Because when the British Judge at the court, Konrad Schiemann,
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resigned in 2012, obviously people asked me whether I would be interested in applying for the Judge’s job. And I thought about it. And then I remembered Sir Gordon. And I decided that what I had seen with Sir Gordon would almost certainly be true of me, if I applied to change over and were indeed given the Judge’s job. I would be a very frustrated (and possibly vicious) panther in the zoo. So I decided to remain a panther in the jungle. I want to ask about academia, because I think academia has also been an important part of your career. What do you think are the lessons that you have learned as a professional, as a barrister and as an Advocate General, from taking a prominent role in academic life, both teaching and researching? You have published a lot of work, a lot of material, basically throughout your career. I think the two (barrister and academic) have been very important and useful to me - I hope useful! – in what I have been working on and what I have been trying to do. I juggled working in the two careers simultaneously for a long time in the UK, from the moment I went back to the UK after working at the Court. That was, not least, because I was building up a practice from scratch. It was actually necessary for me to eat and pay a mortgage, so it was good that I had an academic post as well as the Bar.
My students liked the smell of gunpowder on my clothes
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But it was much more than that. There was a synergy between what I was doing as an academic and what I was doing in practice. In the academic sphere, I think I can say that my students liked the smell of gunpowder on my clothes. It gave a degree of immediacy to the arguments. And indeed it enabled me sometimes to be more abstract – for the students to accept it if I started an abstract line of analysis – than might have been the case if I hadn’t been a practitioner. I have a strong memory of coming back from the nal instalment of Brown and Others in the House of Lords and nding my students at King’s College Cambridge lying in wait for me in the college bar. Somebody (of course) put a drink straight into my hands and said, “So ok, tell us Leo: what was it like, what went on?” I told them about the days of hearings and the questions and I told them that we had been drawn into the theoretical argument about the right of the State to intervene in private life. Where is the dividing line between what the State should be involved with and what it shouldn’t be involved with? And that takes you back to philosophical writings – to the great debate between Lord Devlin and H.L.A. Hart (1). And I said, I have put a copy of the judgment, which has just been handed down, into the library”. A couple of them said, “Oh? I think we’ll go off and have a look at that, then”. And they nished their drinks and slipped away to the library. This is 22.30 at night. I’m thinking, “It's not possible. King’s law students who want to leave the bar at 22.30 at night and go to the library to look at a judgment, because they are wondering about the Hart vs Devlin
debate about the individual and the State? That is so good, that they are that interested!” So being a practitioner in the academic world has helped in that sense. In my work as an Advocate General, I think it really has helped. I am very conscious of the fact that whatever I propose as a solution in a case has to t intellectually into the mosaic of EU law. It has to be possible to explain academically and intellectually, how does this t? At the same time, it also has to be a solution that works on the street. It has to be something that can be applied by a very bored clerk, of perhaps medium intelligence, on a rainy Friday afternoon, in a small provincial town, towards the end of the working day. It can’t be something that is only accessible if you have post-doctoral skills in legal reasoning. It's that challenge in the job, of course, which makes it so interesting!
Aloft on Sir Winston Churchill
1. Lord Devlin’s Second Maccabean Lecture on Jurisprudence (‘Morals and the Criminal Law’ (1958)) contained a radical attack on John Stuart Mills’ libertarian approach. H.L.A Hart riposted with ‘Law, Liberty and Morality’ (1963). For a good discussion, see Ronald Dworkin, Lord Devlin and the Enforcement of Morals, 75 Yale L.J. 986 (1965-1966).
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SPECIAL COVERAGE ON COVID-19
News Highlights 16-20 March 2020
This week, a number of measures and actions were taken at the EU level to deal with the COVID-19 outbreak. Member States began closing their borders, until the European Commission proposed a measure to temporarily, for 30 days, completely close the external borders of the Schengen area. In the eld of External Trade and Relations, the Commission made adjustments in the handling of anti-dumping and anti-subsidy investigations, and a Regulation was passed allowing Member States to require export authorisations for muchneeded equipment and supplies to deal with the crisis. In matters of transport, the EU Slot Regulation was proposed, and a decision taken to create green corridors, or green lanes, to fast-track essential supplies. To protect the EU economy, keep companies rocked by the disaster aoat, protect the livelihoods of EU workers, and support Member State health care systems, a number of funds were opened up or proposed, given stimulus
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by pledges from the Eurogroup early on in the week: the EU Solidarity Fund, the Coronavirus Response Investment Initiative, a State Aid Temporary Framework, Commission-funded research, funding for the EU’s Civil Protection Mechanism and a rescEU scheme for stockpiling of necessary equipment, and signicantly, also an injection of 750 billion euros from the European Central Bank for an Emergency Purchasing Programme. The European Securities Market Authority also took precautionary measures. Regarding the undeniable human rights aspects of the crisis, the Fundamental Rights Agency announced it would be producing a report. And, a number of EU Institutions and Agencies, as well as the European Court of Human Rights, made changes to time-limits for certain procedures and changes to operations in order to adjust for the protection of their workforce.
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Eurogroup launches economic policy response to COVID-19 outbreak
G7 Leaders will do ‘whatever it takes’ to face COVID-19
Monday 16 March
Monday 16 March
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The Eurogroup leaders met and pledged a ‘very sizeable’ amount of support to the economy, and funds to supplement Member States’ national measures to address the COVID-19 emergency.
Commission’s Guidelines for border management measures to protect health and keep goods and essential services available during the COVID-19 crisis Monday 16 March
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The European Commission presented Guidelines concerning the coordinated management of borders by Member States in the context of the coronavirus outbreak. The Guidelines focus on the need to protect health while at the same time preserving the integrity of the internal market.
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Following their emergency video conference meeting, the Leaders of the G7 made a statement committing to do whatever is necessary to ensure a strong and coordinated global response to the risks posed by the international pandemic for the stability of the global economy.
European Parliament Committee warns Member States about closure of internal borders due to COVID-19 outbreak Monday 16 March
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The Civil Liberties Chair of the European Parliament issued a statement stressing the need for coordination and the prohibition of discrimination, in response to the closure by certain Member States of their internal borders, or closures of those borders to certain individuals, in respect of the Schengen Borders Code.
Commission’s Proposal to amend alloCommission calls for temporary res- cation rules for airport slots in respontrictions on travel due to COVID-19 pan- se to the COVID-19 outbreak demic Monday 16 March Monday 16 March
The European Commission issued a Communication to the European Parliament, the European Council, and the Council of the European Union about temporary restrictions on non-essential travel to the EU due to the COVID-19 pandemic.
Commission announces adjustments in the handling of anti-dumping and anti-subsidy investigations affected by COVID-19 measures
The European Commission issued a Proposal for a Regulation of the European Parliament and of the Council amending Regulation 95/931, which sets out rules on the allocation of slots at EU airports, in response to the problems that air carriers are facing due to the outbreak.
Protection of supplies needed due to COVID-19 outbreak: EU measure allowing Member States to control exports to third countries Monday 16 March
Monday 16 March
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An announcement from the European Commission regarding the consequences of the COVID-19 outbreak on anti-dumping and anti-subsidy investigations was published. This announcement applies to all parties involved in trade defence investigations located or closely interlinked with the areas affected by the virus.
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A procurement procedure for personal protective equipment was launched by the European Commission under the Joint Procurement Agreement for medical countermeasures, which it is hoped will be nalised by the end of April.
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Commission proposes reform of EU Solidarity Fund to cover major public health emergencies Monday 16 March
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The European Commission issued a Proposal for a Regulation amending the EU Solidarity Fund to extend its scope so that it can be used to provide nancial assistance to Member States and countries negotiating their accession to the EU seriously affected by a major public health emergency.
ESMA’s Decision requiring reporting from holders of net short positions of 0.1% and above Monday 16 March
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As a precautionary action in response to the COVID-19 crisis, the European Securities and Markets Authority decided to temporarily require the holders of net short positions in shares traded on a EU regulated market to notify the relevant National Competent Authority if the position reaches or exceeds 0.1% of the issued share capital after the entry into force of the decision.
ECtHR halts activity and suspends time-limits and proceedings for a onemonth period Monday 16 March
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Monday 16 March
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The European Commission issued a Proposal for a Regulation on specic measures to mobilise investments in the health care systems of the Member States and in other sectors of their economies in response to the COVID-19 outbreak.
Central banks agree on coordinated action to enhance the provision of global US dollar liquidity Monday 16 March
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The European Central Bank and other major central banks announced a coordinated action to enhance the provision of liquidity via the standing US dollar liquidity swap line arrangements.
EU Intellectual Property Office: measures to deal with COVID-19 outbreak Monday 16 March
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The EUIPO announced changes to its working practices as a result of the international pandemic caused by the coronavirus outbreak. This includes an extension until 1 May 2020 of all time limits expiring between 9 March 2020 and 30 April 2020 inclusive.
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The European Court of Human Rights announced the introduction of exceptional measures to respond to the current health crisis, including suspension for a onemonth period of the six-month time-limit for the lodging of applications and of all time-limits allotted in ongoing procedures.
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Commission’s Coronavirus Response Investment Initiative
European Asylum Support Office: further measures to deal with COVID-19 emergency Monday 16 March
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The EASO announced that all non-critical staff members have begun teleworking due to the international pandemic caused by the coronavirus outbreak. Staff performing critical tasks however remain present in EASO’s Malta headquarters, and in EASO’s operations in Cyprus, Greece and Malta, in order to assure business continuity.
Nº10 · MARCH 21, 2020
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Conclusions of the second European Council meeting on COVID-19 Tuesday 17 March
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The President of the European Council announced the conclusions of the European Council meeting on the COVID-19 outbreak held by videoconference. The European Council stressed the need for joint action and the EU’s readiness to do everything necessary to tackle the crisis and its consequences, treating the health of EU citizens as the utmost priority.
Commission’s draft proposal for a State aid Temporary Framework in response to the COVID-19 outbreak Tuesday 17 March
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The European Commission sent to Member States a draft proposal for a State aid Temporary Framework to support the economy in the context of the COVID-19 outbreak, basing on Article 107(3)(b) TFEU.
Commission-funded research to combat the COVID-19 pandemic
ESMA publishes Opinion on COVID-19 related ban on short-selling in Spanish markets
Tuesday 17 March
Tuesday 17 March
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As part of the EU’s coordinated response to the COVID19 outbreak, the European Commission offered to provide nancing in the amount of EUR 80 million to the innovative vaccines company CureVac.
Commission’s Interpretative Guidelines on EU passenger rights and the COVID-19 crisis Wednesday 18 March
The European Securities and Markets Authority (ESMA) published its Opinion on a proposed emergency measure by the Spanish National Securities Market Commission under the Short Selling Regulation 236/2012.
EFTA Surveillance Authority on State aid to EEA EFTA States in response to the COVID-19 crisis
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Wednesday 18 March
The European Commission published its Interpretative Guidelines on passenger rights, which aim to clarify how certain provisions of EU law enshrining passenger rights apply in the context of the COVID-19 pandemic, notably with respect to cancellations and delays.
Fundamental Rights Agency: upcoming report on COVID-19 pandemic’s impact Wednesday 18 March
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The FRA announced that it will be publishing a report assessing the impact of COVID-19 on fundamental rights, including discrimination, hate speech, and the freedom of movement and assembly. The report will be published in the Easter period.
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The EFTA Surveillance Authority announced the setting up of a dedicated task force to assist the Icelandic, Liechtenstein and Norwegian authorities with support measures in response to the COVID-19 pandemic, which may constitute State aid within the meaning of Article 61(1) of the (EEA) Agreement. The ESA also expressed its commitment to process any queries or proposed measures in a swift and efcient manner.
COVID-19 and the Single Market: ‘green lanes’ for the supply of essential goods and medical equipment Thursday 19 March
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EU Transport Ministers made a speedy decision to support ‘green corridors’ or ‘green lane’ supply routes. These would give priority to transport of essential goods, food, and vital medical and protective equipment, as suggested by the European Commission and Members of the European Parliament.
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Strategic stockpile of medical equipment for COVID-19 emergency: measure enters into force on Friday 20 March
ECB launches EUR 750 billion bondpurchasing programme to combat economic backlash of COVID-19 outbreak
Thursday 19 March
Thursday 19 March
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In response to the COVID-19 outbreak and as an extension of the EU Civil Protection Mechanism, a new strategic stockpile of medical equipment will come into existence for the rst time. This includes the provision of ventilators, protective masks, vaccines and therapeutics, and lab supplies to help EU countries cope with the pandemic.
The European Central Bank announced the launch of a new and temporary Pandemic Emergency Purchase Programme (PEPP), with an overall capacity of 750 billion euros and covering both public and private assets. The programme will be conducted until the end of 2020, but the ECB also stressed that purchases will carry on ‘for as long as needed’.
ESMA’s announcement on implementation of SFTR in the context of the COVID-19 crisis
European Commission launches State Aid temporary framework to support the economy from COVID-19 outbreak
Thursday 19 March
Thursday 19 March
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In response to the challenges posed by the COVID-19 pandemic, the European Securities and Markets Authority issued a Public Statement to ensure coordinated supervisory actions on the application of Securities Finance Transactions Regulation (SFTR), particularly concerning the requirements on the reporting start date, as well as the registration of Trade Repositories.
The European Commission published a Temporary Framework, under Article 107(3)(b) TFEU, to provide Member States with ‘full exibility’ in the eld of State Aid. This aims at ensuring that sufcient liquidity remains available to businesses of all types and to preserve the continuity of economic activity during and after the COVID-19 outbreak.
The Court of Justice extends timelimits in ongoing proceedings due to COVID-19 outbreak
Clarification of the scope and nature of the coronavirus-related extension of time limits in EUIPO’s proceedings
Thursday 19 March
Friday 20 March
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In the context of the exceptional measures introduced as a result of the health crisis, the Court of Justice announced a one-month extension in the time limits prescribed in ongoing proceedings, with the exception of proceedings that are particularly urgent.
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Following the Decision of the Executive Director of the EU Intellectual Property Ofce (EUIPO) to extend time limits in the context of the coronavirus outbreak, EUIPO issued a clarication about how this Decision must be interpreted in respect of the time limits affected by the extension, the nature of the extension, and the measures to adapt communications sent to users.
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SPECIAL COVERAGE ON COVID-19
This Week's Analyses & Op-Eds 16-20 March 2020
The pandemic caused by the coronavirus outbreak, ripping through the world, and now with its epicentre in the European Union, has had an impact on all aspects of life as we know it, and of course, on every area of EU law. This week, EU Law Live published a range of in-depth Analyses and Op-Eds by a series
EU law in extraordinary times By Daniel Sarmiento
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Op-Ed on some structural features of EU law that may either be decisive on its effectiveness in facing the ongoing health crisis and its foreseeable economic and social consequences, or be transformed by the crisis.
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of authors on COVID-19, with an Op-Ed by our Editor-in-Chief Daniel Sarmiento on how EU law could be used to respond to the crisis, followed by contributions on the impact on and changes in the Internal Market, State Aid system, Trade Law, Public Procurement system, Data, Tech and IP issues, Banking and Finance, and Justice and Litigation.
COVID-19 and the Free Movement of Goods: Which Prevails? By Peter Oliver
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Analysis in the eld of the Internal Market on the meaning and the possible exceptions to the free movement of goods in the face of the COVID-19 pandemic. Peter Oliver looks at this fundamental part of the EU’s internal market and certain emergency measures adopted by Member States, including the recently published Commission’s Guidelines for border management measures to protect health and ensure the availability of goods and essential services.
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State aid and COVID-19 outbreak – What can we expect? By Juan Jorge Piernas López
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In this Op-Ed, Jorge Piernas reects on the Commission’s possible reaction to the COVID-19 crisis in light of its previous response to the last severe challenge to State aid rules - the 2008 nancial crisis.
European Union public procurement during the coronavirus outbreak By Piotr Bogdanowicz
An ambitious and collective response to the COVID-19 shock? ECB’s monetary policy package and recent EU policy measures READ MORE ON EU LAW LIVE
Analysis on the measures adopted in the ECB’s monetary policy to support households and rms, in particular small and medium-sized enterprises (SMEs), to face economic disruptions and uncertainty. The Analysis explains the meaning and relevance of the measures, also in the context of (quasi-simultaneous) other recent banking supervision, economic and scal measures.
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By Isabelle van Damme
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Analysis on Commission Implementing Regulation 2020/402, which imposes trade restrictions on the export of personal protective equipment as an essential product necessary to further prevent the spread of the COVID-19 disease and to safeguard the health of medical staff treating infected patients, from the perspective of the rules on export restrictions under WTO law.
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Analysis on the mechanisms contained in EU public procurement law through which certain exibility could be introduced, in the context of the coronavirus outbreak, at the stages of both awarding and performing public procurement contracts.
By Christy Ann Petit
European Union imposes export restrictions on personal protective equipment
Misinformation about COVID-19: Is the European Union well equipped to fight the ‘Infodemic’? By Enza Cirone
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Analysis on the misinformation risks and its potential consequences in the context of the ongoing health crisis, as well as of the instruments put in place by the EU to ght it. The author stresses the long road ahead to foster digital resilience against the ongoing ‘infodemic’.
Time limits and force majeure at the Court of Justice of the EU during the COVID-19 crisis By Daniel Sarmiento
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The EUIPO announced changes to its working practices as a result of the international pandemic caused by the coronavirus outbreak. This includes an extension until 1 May 2020 of all time limits expiring between 9 March 2020 and 30 April 2020 inclusive.
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Highlights in other news ECtHR: New ruling on pre-trial detention requirements arising from the prohibition of torture and from procedural and family rights Tuesday 17 March
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In Kosenko v. Russia, the ECtHR found that Russian authorities had not breached Article 3 ECHR, but did violate Articles 5 and 8 ECHR, due to the justication and the conditions of pre-trial detention of a Russian national receiving a disability pension for schizophrenia, after his participation in a street protest against the Russian Government.
Commission’s proposed policy objectives for Eastern Partnership Thursday 19 March
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The Commission issued a proposal for the long-term policy objectives (beyond 2020) of the Eastern Partnership, for Armenia, Azerbaijan, Belarus, Georgia, Moldova and Ukraine. Those objectives centre around trade, connectivity, and economic integration, democracy, the rule of law, climate and the environment, and digitalisation.
CJEU clarifies the meaning and effect of the prohibition of ‘successive fixed-term employment relationships’ Thursday 19 March
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The Court of Justice handed down its judgment in Sánchez Ruiz and Fernández Álvarez and Others v Comunidad de Madrid (Servicio Madrileño de Salud) (C-103/18 and C-429/18), setting out the meaning of the concept ‘successive xed-term employment relationships’ under Clause 5 of the Framework Agreement on Fixed-Term Work, as well as reafrming the lack of direct effect of that provision.
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Other Analyses & Op-Eds Additional duties on imports of frozen poultry into the EU and customs valuation
Safeguarding the Right to an Effective Remedy in Asylum Procedures: A Herculean Task for Hungarian Judges?
By Yves Melin
By Niovi Vavoula
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Op-Ed on the Court of Justice’s judgment in X BV (C160/18), which claried under what circumstances the customs value declared upon the importation of agricultural products subject to quotas may be set aside when customs authorities nd that the price charged by the importer to its customers in the EU is below the representative price set by the Commission under Regulation 1484/95.
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Analysis on PG v Bevándorlási és Menekültügyi Hivatal (C-406/18) and LH v Bevándorlási és Menekültügyi Hivatal (C-564/18), two Court of Justice judgments concerning the interpretation of different provisions of the Asylum Procedures Directive in light of the right to an effective remedy, as envisaged in Article 47 of the Charter.
Non-conviction-based confiscation under EU criminal law: The CJEU and the ‘Agro in 2000’ case By Angelo Marletta
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Analysis on the meaning and implications of the Court of Justice’s ruling in AGRO in 2000 (C-234/18), where it held that EU law does not preclude Member States from applying forms of non-conviction based conscation under national law.
Library - Book Review F. WOLLENSCHLÄGER, W. WURMNEST, T. M.J. MÖLLERS (EDS.)
By Małgorzata Cyndecka Wolters Kluwer, 2020
Private Enforcement of European Competition and State Aid Law: Current Challenges and the Way Forward READ ON EU LAW LIVE Review on the compilation of studies resulting from the international conference ‘Private Enforcement of European Competition and State Aid law’, held in Augsburg in November 2018. The book provides a detailed analysis of the existing framework and attempts to anticipate the future developments and trends concerning the private enforcement of EU law.
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