Weekend Edition Nº11 by eulawlive

Nº11 MARCH 28

2020

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THE CORONAVIRUS CRISIS IN EUROPE: IS THIS THE TIME OF THE PRECAUTIONARY PRINCIPLE? Alessandra Donati PAGE

THE EU FISCAL, ECONOMIC AND MONETARY POLICY RESPONSE TO THE COVID-19 CRISIS Paul Dermine and Menelaos Markakis PAGE

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The coronavirus crisis in Europe: is this the time of the precautionary principle? Alessandra Donati

« Time is the greatest innovator » (Francis Bacon)

A questionable use of the precautionary principle

Wide use of the precautionary principle As was the case in the past for other major health crises (such as mad cow disease, SARS, and the avian u crisis), the precautionary principle is now largely being invoked by the authorities of the EU Member States as a ground for the restrictive measures taken to limit dissemination of the coronavirus. The reference to precaution is so widely spread that one might consider that this principle is the key legal instrument for the management of the Covid-19 crisis. Indeed, according to the established case law of the Court of Justice of the European Union (CJEU), the conditions for the application of this principle are met (National Farmers’ Union e.a., C-157/96). On the one hand, we are facing a serious risk for public health that requires the adoption by the competent authorities of adequate protective measures, and, on the other hand, this risk is uncertain. Based on the available scientic knowledge, the source, the rhythm, the modalities, and remedies to ght against the spread of this virus remain unclear and are subject to uncertainty.

However, a closer look at some of the measures adopted by the Member States raises concern. In Italy, the government rst applied some restrictive measures to Lombardy and other provinces of the North. It was only when the risk of coronavirus spreading quickly was already clearly documented that the same restrictive measures were applied to the rest of the Italian territory. Some days later in France, notwithstanding the Italian example already showing the need to take immediate and serious measures to avoid the spread of Covid-19, the government decided to wait until the number of infected people rose, before urging the population to respect containment measures. The same reasoning applies to other EU countries, such as Germany, Luxem-

A closer look at some of the measures adopted by the Member States raises concern

1. Alessandra Donati is Senior Research Fellow at the Max Planck Institute for procedural law in Luxembourg. She is a doctorate of law at the University Paris 1 – Pantheon Sorbonne, with a thesis on the precautionary principle under EU law, and an Attorney at law in Italy and France.

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Just in time: temporality and the cultural legitimation of law). The precautionary principle is closely related to the notion of time, which shapes its denition. The precautionary principle can be dened as a principle of anticipated action that requires the competent authorities to anticipate the traditional time for the adoption of a measure to protect the environment and public health (Donati A., Le principe de précaution en droit de l’Union européenne, Phd Thesis). This means that decision-makers shall not wait until the risk is certain, from a scientic point of view, but shall act before, when the risk is only uncertain. From this perspective, the precautionary principle entails a signicant change in the time-management of risks. Based on the denition of precaution as a principle of anticipated action, it could be argued that the time of precaution results from the combination of scientic and political time.

bourg, and Spain, where more restrictive measures recalling the Italian ones were only adopted in the last few days when the risk of spreading of Covid-19 was already well grounded. What these examples show is that there might be a divergence between the time taken to implement these measures and the time required for the application of the precautionary principle. The time of the precautionary principle Time has proven to be an extraordinary complex concept for physicists, philosophers, psychologists, and others exploring its multiple dimensions (Coreld P.J., Time and the shape of history). For some, time denotes the continuum of past, present, and future, or the idea of history and destiny. For others, time has a rhythmic quality, being associated with sequences and cycles, such as seasonal weather changes. For still others, time indicates the time embedded in events and things or the particular point or period when things happen (Richardson B.J., Time and environmental law). Time is also an intrinsic element of the legal system. Time is not something that exerts an inuence on law, but rather law itself structures how we perceive time, by regulating and normalising the experience of time (Greenhouse C.J.,

The time of science First of all, the time of precaution is the time of science. For the CJEU, the application of precaution is conditional upon the carrying out, by highly competent and impartial scientists, of a scientic risk assessment (Monsanto Agricoltura Italia, C-236/01).

The precautionary principle is closely related to the notion of time, which shapes its deﬁnition

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The time of precaution is the time of science because it corresponds to the time needed to execute such risk assessment and it reﬂects the scientiﬁc knowledge available

mission, T-584/13). The purpose of such analysis is to compare the positive and negative consequences of the action based on the precautionary principle with the positive and negative consequences of the inaction. A precautionary measure should only be taken if it can provide a benet in terms of reducing the risk to an acceptable level and thus, if its advantages outweigh its disadvantages (EU Commission, Communication on the precautionary principle). To carry out the cost and benet analysis, the decision-makers shall not only take into account the results of the scientic risk assessment but also all the other factors (including economic, political, and social factors) that may have an impact on the appreciation of the risk at stake. In light of the above, it can be argued that the time of precaution is also the time of politics because it corresponds to the time needed by the authorities to comply with such procedural requirements before implementing a precautionary measure.

The purpose of the risk assessment is to evaluate the probability of occurrence of the uncertain risk and the severity of its potential effects in order to exclude from the scope of the precautionary principle the uncertain risks that are not scientically grounded. Indeed, as stated by the CJEU, only the uncertain risks that are scientically documented can justify the anticipation of the time of action based on the precautionary principle (Gowan Comércio Internacional e Servicos Lda, C-77/09). Thus, the time of precaution is the time of science because it corresponds to the time needed to execute such risk assessment and it reects the scientic knowledge available when the risk assessment is implemented.

The time of precaution is also the time of politics because it corresponds to the time needed by the authorities to comply with such procedural requirements before implementing a precautionary measure

The time of politics Second, the time of precaution is also the time of politics. When applying the precautionary principle, decision-makers are granted with a wide margin of appreciation. To limit such discretionary power, the CJEU has dened a set of procedural obligations that the competent authorities shall respect. On the one hand, decision-makers shall take into account with due care the results of the scientic risk assessment and shall motivate their decisions based on the available scientic data (Animal Trading e.a., T-333/10). On the other hand, they shall conduct a cost and benet analysis (Basf Agro BV vs Com-

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The time of the precautionary principle and the time of emergency in a situation of pandemic On March 11, 2020, the World Health Organization (WHO) declared Covid-19 a pandemic, pointing to a large number of cases of the coronavirus illness in over 152 countries and territories around the world and the

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but the need to mitigate its effects. In other words, the measures to be adopted are no longer preventive measures that should comply with the scientic and political time of precaution, but mitigation measures aimed at reducing the exposure to the population of the risks and limiting the further spread of the disease. In this context, to be able to act in a fast and smooth way, the authorities need to dispose of a broad discretionary power (Stacey J., The environmental emergency and the legality of discretion in environmental law). In this respect, in France, Emmanuel Macron, by declaring a ‘state of war’, announced that new legislation would be introduced to enable the government to respond to emergencies and, where necessary, to legislate by ordinance in areas strictly related to the coronavirus crisis management. In similar terms, in Luxembourg, Prime Minister Xavier Bettel declared a 3month emergency period allowing the government to take faster measures outside of the regular legislative procedure.

sustained risk of further global spread. In a situation of a pandemic, the time of the precautionary principle should be distinguished from the time of emergency. The time of the precautionary principle As indicated above, the time of the precautionary principle is the time of anticipation. To avoid the occurrence of uncertain risks threatening the environment or public health, decision-makers should anticipate the time of action by adopting preventive measures. However, to ensure that these measures are not arbitrary and discriminatory, decision-makers shall respect the scientic and political time of precaution by complying with the relevant procedural obligations. Under the framework of anticipation and concerning the Covid-19 crisis, the EU Member States should not have waited until the risk of spreading of the coronavirus was certain in their own countries. Still, they should have acted before when the risk of contagion coming from China was only uncertain. It’s only at this stage, or at the latest when the virus started to spread in Italy, that the precautionary principle should have been applied by anticipating the time of action.

The reconciliation between the time of the precautionary principle and the time of emergency A possible reconciliation between the time of the precautionary principle and the time of emergency should be based on two pillars: a time for synchronisation and time for a change. First of all, a better synchronisation should be ensured between the national and the global level of regulation of risks, as by denition a pandemic affects many regions and countries of the world. The ongoing health crisis shows the intense degree of interdependence achieved by our societies as a result of globalisation, where not

The time of emergency If the time of the precautionary principle is not respected, we enter into the second timedimension of a pandemic: the time of emergency. Emergency determines a compression of the time of action, requesting more to be done quicker. In such circumstances, there is no longer a need to prevent the occurrence of risk (which has already occurred)

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only does the production, transportation, and consumption chain have a worldwide dimension, but the risks are also global. In a climate change scenario where the environmental and health risks will signicantly increase, leading eventually to an extended planet-wide emergency-like condition, there is a need to enhance the coordination of a pandemic by combining a timely national and global management. In other words, we need national communities to empower the various actors to protect the environment and public health efciently. Still, only the global community will be able to dene common goals and the resulting responsibilities by timely application of the precautionary principle. To enable such synchronisation, at least within the European Union, we need a time for change that will foster a new understanding of some of the basic foundations of EU regulation. One the one hand, the coronavirus crisis is threatening European construction in requests for a more suitable interpretation of its unique market. Such interpretation should guarantee free movement, while at the same time adequately protecting public health and ensuring the nancial stability of the EU. On the other hand, the emergence of the coronavirus underlines the importance and need for a uniform legislative framework at the EU level. From this perspective, it seems more necessary than ever to reect on an increase of EU competences in the eld of public health to allow for a harmonised and consistent application of EU health policy across all Member States, especially in the case of a health crisis.

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The cyclical time of a pandemic ‘Pandemics do not end overnight. A pandemic virus may cause several waves of severe epidemics worldwide over the following years before continuing to circulate as seasonal inuenza’ (WHO, Guide to revision of national pandemic inuenza preparedness plans). As with all other pandemics, even the coronavirus will be of a cyclical nature. After its rst appearance, it will come back and spread again, with a hardly predictable intensity. This means that the decisionmakers will have a new chance to face this virus. We will see if next time, the decisionmakers will anticipate the time of action by applying in due time the precautionary principle, or as is the case in the ongoing pandemic, they will wait for the time of emergency before implementing effective risk management measures.

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The EU ﬁscal, economic and monetary policy response to the COVID-19 crisis Paul Dermine and Menelaos Markakis 1

mous, as it precipitated European economies, almost overnight, into war-like conditions. But it will also, in all likelihood, remain temporary. More importantly, the economic shock that hit the continent, however violent, is broadly symmetric, and affects Member States in similar ways. Eurogroup President Mario Centeno made this very clear: “The challenge our economies are facing today is in no way similar to the previous crisis. This is a symmetric external shock. Moral hazard considerations are not warranted here. We must bear this in mind when we consider coronavirus dedicated instruments.” The anatomy of the COVID-19

The COVID-19 crisis stands as an unprecedented test for our continent. As economic systems come to a halt, the spectre of recession and meltdown resurfaces. There are obvious parallels to be drawn between the current situation and the sovereign debt crisis the Eurozone was confronted with over the past decade. The risks they give rise to and the policy discussions they triggered look very much look alike. The two situations also beg the same existential questions as to the limits and asymmetries of the currency union most Europeans currently live in. But the COVID-19 situation also has its own unique features. Its disruptive potential is enor-

1. Paul Dermine is doctoral researcher at the University of Maastricht. He is a member of the Maastricht Center for European Law (MCEL), and specialises in EU institutional law and the law of the Economic and Monetary Union. His recent work has appeared in the Common Market Law Review, European Papers and the Maastricht Journal of Comparative and European Law. 2. Menelaos Markakis is Assistant Professor at Erasmus University Rotterdam and Lecturer at Worcester College, Oxford. He is afliated with the Erasmus Center for Economic and Financial Governance. He is the author of Accountability in the Economic and Monetary Union: Foundations, Policy, and Governance (OUP 2020).

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crisis might ease the adoption of important measures, and by reducing the gap between ‘defensive hawks’ and ‘integrationist doves’, break long-standing taboos in the Eurozone. In this contribution, we assess the main measures, already taken or currently contemplated by the EU, in reaction to the COVID-19 crisis and to mitigate its impact on Eurozone economies. The discussion begins with the recent monetary decisions taken by the ECB (1). The focus then shifts to the strategy deployed on the economic and scal side. We will analyse (2) the coordination of national scal responses and their accommodation under the rules of the Stability and Growth Pact, (3) the role of the European Stability Mechanism and (4) joint debt instruments. (1) Monetary policy measures of the ECB Our colleague Christy Ann Petit has brilliantly explained the measures taken by the ECB thus far on EU Law Live (including the measures taken by ECB banking supervision). It will be recalled that, according to the monetary policy decisions of 12 March, additional longerterm renancing operations (LTROs) will be conducted, temporarily, to provide immediate liquidity support to the euro area nancial system. As regards targeted longer-term renancing operations (TLTROs), considerably more favourable terms will be applied during the period from June 2020 to June 2021 to all outstanding TLTRO III operations during that same time. Moreover, a temporary envelope of additional net asset purchases of 120 billion euros will be added until the end of the year, ensuring a strong contribution from the private sector purchase programmes. Reinvestments of the principal payments from maturing securities purchased under the asset purchase programme (APP) will continue, in full, for an extended period of time. Furthermore, on 18 March the ECB announced ‘a new temporary asset purchase programme of private and public sector securities to counter the serious risks to the monetary policy transmission mechanism and the out-

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The COVID-19 crisis might ease the adoption of important measures, and by reducing the gap between ‘defensive hawks’ and ‘integrationist doves’, break long-standing taboos in the Eurozone

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The underlying economic situation is different to what it was during the previous crisis

Weiss, it is relatively safe to conclude that the PEPP falls within the ECB’s monetary policy mandate, in light of the objectives pursued by PEPP and the means used for their attainment. As regards the prohibition of monetary nancing (Article 123 TFEU), it is true that the European System of Central Banks (ESCB) ‘does not have authority to purchase government bonds on secondary markets under conditions which would, in practice, mean that its action has an effect equivalent to that of a direct purchase of government bonds from the public authorities and bodies of the Member States, thereby undermining the effectiveness of the prohibition in Article 123(1) TFEU’ (Gauweiler, paragraph 97). However, we cannot deduce from Weiss that the removal of the limits per issue and per issuer would, in and of itself, allow the potential purchasers of government bonds on the primary markets to act, de facto, as intermediaries for the ESCB for the direct purchase of those bonds from public authorities and bodies of the Member States concerned (paragraphs 109ff). Furthermore, the PEPP does not circumvent, at this moment in time, the objective of Article 123(1) TFEU, because it does not lessen the impetus of the Member States to follow a sound budgetary policy. As noted above, the underlying economic si-

look for the euro area posed by the outbreak and escalating diffusion of the coronavirus, COVID-19’. The Pandemic Emergency Purchase Programme (PEPP) will have an overall envelope of 750 billion euros. Purchases will be conducted until the end of 2020 and will include all the asset categories eligible under the existing APP. Purchases under the PEPP ‘will be conducted in a exible manner’, which ‘allows for uctuations in the distribution of purchase ows over time, across asset classes and among jurisdictions’. It is noted by the ECB that, ‘to the extent that some self-imposed limits might hamper action that the ECB is required to take in order to full its mandate, the Governing Council will consider revising them to the extent necessary to make its action proportionate to the risks that we face’. Notably, the limits per issue and per issuer under the public sector asset purchase programme (PSPP) will not apply to PEPP holdings (Article 4 of Decision (EU) 2020/440). Notwithstanding the limited available information, the legality of the PEPP has been positively assessed by Sebastian Grund and René Smits, and not-so-positively assessed by Marijn van der Sluis. Following the CJEU’s rulings in Pringle, Gauweiler and

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tuation is different to what it was during the previous crisis. The proportionality of the PEPP is not in question either. The recitals in the preamble to Decision (EU) 2020/440 explain why this is so. There are demands to go further. It is argued by Paul De Grauwe that the ECB should ‘buy government bonds in primary markets, effectively issuing money to nance member states’ budget decits during the crisis’. However, it was already held in Pringle that the ‘grant of nancial assistance to a Member State … clearly does not fall within monetary policy’ (paragraph 57). Furthermore, as openly admitted by the author himself, this would violate Article 123 TFEU, which ‘prohibits the ECB and the central banks of the Member States from granting overdraft facilities or any other type of credit facility to public authorities and bodies of the Union and of Member States and from purchasing directly from them their debt instruments’ (Pringle, paragraph 123). Article 123 TFEU ‘employs wording which is stricter than that used in the “no bail-out clause” in Article 125 TFEU’ (Pringle, paragraph 132). It follows, according to the Court in Gauweiler, that ‘that provision prohibits all nancial assistance from the ESCB to a Member State’ (paragraph 95) – a dictum that was repeated in Weiss (paragraph 103).

Consequently, the only way for the ECB to act in the way suggested would be to amend Article 123 TFEU. (2) Coordination of national scal responses and their accommodation under the Stability and Growth Pact The Eurozone remains an asymmetric currency union, where economic and budgetary sovereignty still primarily lies at the national level. It is thus in a decentralised manner that the scal reaction to the economic fallout from the COVID-19 crisis has been rst operated, with States offering direct and indirect support measures to their receding economies. The Eurogroup has however provided a useful platform to coordinate the economic response and the scal stimuli to the ongoing crisis. In its statements of March 16 and March 23, the EU ministers of nance have emphasised the need for a resolute, ambitious and coordinated policy response. The European Union in general, and the Commission in particular, have also deployed far-reaching efforts to accommodate the exceptional responses that this unprecedented crisis calls for. It is along those lines that the Commission has very quickly set up several temporary frameworks, and signi-

The Eurogroup has however provided a useful platform to coordinate the economic response and the ﬁscal stimuli to the ongoing crisis

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cantly relaxed the EU rules on State aid or competition law to accompany the supportive measures taken at the national level.

For the ﬁrst time in the short but already turbulent life of the SGP, the EU freezes adjustment trajectories, and tells States that they may spend as much as it takes to smoothen the effects of the COVID-19 crisis

It is along similar lines that the Commission proposed, in a Communication of Friday 20 March, to activate the general escape clause of the Stability and Growth Pact (SGP). The clause was introduced as part of the ‘SixPack’ reform of the SGP, and seeks to offer Member States the scal leeway to deal with periods of ‘severe economic downturn’ (Articles 5(1) and 9(1) of Regulation 1466/97 and Articles 3(5) and 5(2) of Regulation 1467/97). Contrary to what has been relayed in the press, this clause does not amount to a generalised suspension of the SGP. States remain bound, as a matter of principle, by the EU’s scal rulebook, but they are entitled to depart from their ‘normal’ trajectory for the purposes of crisis management. It remains nonetheless the case that the clause stands as the most farreaching form of exibility under the SGP, and its activation is as signicant as it is unprecedented. On Monday 23 March, the Eurogroup supported the Commission’s proposal, considering that the conditions for the activation of the general escape clause were met, and specifying that discretionary stimuli ought to be designed in a ‘timely, temporary and targeted’ manner. On the same day, the European Fiscal Board, the EU’s scal watchdog, welcomed the activation of the clause.

rozone countries in October. The signal sent is, however, timely and welcome. For the rst time in the short but already turbulent life of the SGP, the EU freezes adjustment trajectories, and tells States that they may spend as much as it takes to smoothen the effects of the COVID-19 crisis. The lessons of the sovereign debt crisis have seemingly been learnt, and the EU has now come to appreciate the importance of countercyclicality and coordinated scal stimuli in times of economic downturn. However exible the EU might be, it remains the case that the economic situation of Eurozone Member States, and the state of their public nances, diverge. Their ability to maintain life support for their economies is very different. The developments of the past few days are clear testament to that. While Berlin abandoned its sacrosanct ‘schwarze Null’ and announced an unprecedented 750 billion euro rescue package, Rome’s response has been far more limited, amounting to a timid 28 billion euro scheme. That is the reason why so many in Europe are now calling for a collective scal response at Eurozone level. Two options are currently on the table: relying on the European Stability Mechanism, and/or issuing joint debt instruments.

At this stage, these announcements remain mere (although crucial) political declarations, which will be further operationalised when the Commission examines the convergence and stability programmes later in spring and assesses the draft budgets of Eu-

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(3) Using the European Stability Mechanism’s repower The EU’s permanent crisis fund, the European Stability Mechanism (ESM), has not yet been utilised to address the situation. Its available lending capacity is 410 billion euros, namely 3.4% of the Eurozone’s GDP. An ESM programme would carry the added advantage that the ECB could implement its Outright Monetary Transactions (OMT) programme, which would involve outright transactions in secondary sovereign bond markets. However, ‘strict and effective conditionality’ is required for OMTs, which ‘can take the form of a full EFSF/ESM macroeconomic adjustment programme or a precautionary programme (Enhanced Conditions Credit Line [ECCL]), provided that they include the possibility of EFSF/ESM primary market purchases’. From the press conference following the Eurogroup videoconference of 24 March, it emerges that the Eurozone nance ministers’ preferred option would be to use the ECCL. The Eurogroup President has noted that, “There is broad support to consider a Pandemic crisis support safeguard based on an existing ESM precautionary instrument, such as the … ECCL… The features of this instrument would need to be consistent with the external, symmetric nature of the COVID-19 shock. This is also true for any attached conditionality. … The size of the available instrument could be in the range of 2% of members’ GDP, as a benchmark.” The ball is now rmly back in the courts of the Heads of State or Government. However, the joint statement of the members of the European Council after the videoconference of 26 March came up short (paragraph 14). For their part, Bénassy-Quéré et al propose that ‘a new, dedicated Covid Credit Line with a long duration, access conditions and ex post conditionality’ be added to the list of ESM nancial instruments. From a legal perspective, conditionality is a constitutional requirement, as per the CJEU’s interpretation of ‘the nobailout clause’ (Article 125 TFEU) in Pringle (paragraphs 135 to 137). The current ESM Treaty and the ESM Guideline on Precautionary Financial Assistance set out the eligi-

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The EU’s permanent crisis fund, the European Stability Mechanism (ESM), has not yet been utilised to address the situation

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We do not regard this as legally problemability criteria and the procedures to be follotic, since conditionality should be approwed for granting precautionary nancial aspriate to the nancial instrument chosen and sistance. Countries are, however, understhe economic situation obtaining in the tandably reluctant to subject themselves to a Member State concerned. As such, it may inmacroeconomic adjustment programme in deed take the form of continuous respect of order to benet from precautionary nanpre-established conditions, provided that cial assistance and/or OMTs. The COVIDthe incentive of the recipient Member State 19 crisis is no-one’s fault, hence conditionato conduct a sound budgetary policy would lity is highly contentious. In this connecnot be diminished (which is clearly not at istion, it should be noted that the draft revised sue here, insofar as government expenditure ESM Treaty makes important changes to is linked to addressing the COVID-19 criprecautionary nancial assistance instrusis). ments. Notably, access to a Precautionary Conditioned Credit Line (PCCL) would no (4) Joint debt instruments (‘corona longer require a Memorandum of Undersbonds’) tanding detailing the conditionality attached to the programme. A last initiative consiInstead, it would requidered to tackle the efre the continuous respect of the eligibility cri- The logic behind ‘corona bonds’ fects of the COVID-19 is rather simple: joint debt crisis is the issuance of teria listed in draft joint debt at Eurozone leAnnex III, as documeninstruments are issued at vel. The idea of soted by a Letter of Intent Eurozone level called ‘corona bonds’ (see draft Article 14). was rst evoked by Giuseppe Conte during the Unfortunately, ESM reMarch 17 European form has not yet been Council, and received immediate support nalised. What is more, not all countries from States like France and Spain. Germany would meet the eligibility criteria for a and the Netherlands did not reject the idea PCCL and, as argued by C. Dias and A. from the outset, but deemed it premature, as Zoppè, ‘It remains unclear whether a preall other possible policy options would rst cautionary credit line would qualify for acneed to be considered. The Eurogroup meecess to the … OMT’ (point 6). In our opiting on March 24 conrmed that the idea renion, this would be unlikely, as the abovemained on the table, but was not given priomentioned OMT press release seems to sinrity at the time. Despite the explicit call gle out the ECCL in this respect. Grégory from nine Member States (led by Italy, FranClaeys and Antoine Mathieu Collin argue ce and Spain) to work towards a common that ‘the ECB should clarify its original debt instrument, the European Council on OMT press release and state that a PCCL March 26 failed to reach consensus, and gashould be considered sufcient as a preve the Eurogroup two more weeks to precondition to activate an OMT programme’. sent concrete proposals. This would indeed be the preferred option.

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responsibility and avoidance of moral hazard in the currency union. The understanding of this clause was admittedly relaxed as a result of the sovereign debt crisis. In its Pringle ruling, the Court favoured an interpretation restructured around the principle of policy conditionality. It remains to be seen how ‘corona bonds’ might be technically structured, but these constitutional constraints will in any case limit the degree of ambition of such a project.

The logic behind ‘corona bonds’ is rather simple: joint debt instruments are issued at Eurozone level, with a collective (and thus more credible) guarantee from all involved Member States, hence easing access to funding throughout the Eurozone, especially for those in the weakest nancial position. The label is fresh, but the idea is certainly not new. It was explored by economists and policy-makers abundantly during the sovereign debt crisis, and was declined in various concrete proposals (euro-bonds, eurobills, stability bonds, and so on), which all crashed against the inexibility of a group of Eurozone Member States. For the champions of national responsibility, scal solidarity and risk mutualisation have always constituted an absolute no-go. The current situation is different, however. The COVID19 crisis has its own features, and the deadlocks of the past might soon be broken.

Tentative conclusions In contrast to the previous crisis, the EU has acted at breakneck speed and adopted important measures, on all fronts, to address the situation. There seems to be a strong political commitment to do ‘whatever it takes’ so that there will be no new Eurozone crisis. It is crucial however that this commitment is soon translated into further concrete action. The ECB’s action will need to be complemented by an ambitious joint scal response at Eurozone level. For our part, we have argued in favour of the legality of the measures adopted thus far, and raised some question marks regarding some of the proposed initiatives. It is hoped that the measures adopted will be effective in addressing the difculties facing the Member States. For this would mean that COVID-19 has largely been contained and that the situation has not further escalated. Writing from the safety of our homes, this is all we can hope for.

The legal issues raised by any project for the issuance of joint debt instruments remain broadly the same, however. First, there is the question of competence for the EU to establish a debt mutualisation regime. Following Articles 2(3) and 5 TFEU, the EU only has a ‘coordinating’ competence for economic and scal policies. Admittedly, it has never been clear what policy coordination entails exactly, and recent reforms under the economic pillar have brought about a very broad and far-reaching understanding of the notion. It remains clear however that joint debt issuance is, to say the least, reaching the outer edge of what the Treaties seem to tolerate. Secondly, though much would depend on the features of ‘corona bonds’, they must not contradict ‘the no-bailout clause’ consecrated by Article 125 TFEU. The clause embodies a philosophy of national scal

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SPECIAL COVERAGE ON COVID-19

News Highlights 23-27 March 2020

Commission greenlights €50 million of Italian State aid for production and supply of medical equipment and masks during Coronavirus outbreak Monday 23 March

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The European Commission announced that it has approved, under EU State aid rules, a 50 million euro Italian support scheme for the production and supply of medical equipment and masks during the coronavirus outbreak. The scheme was approved within 48 hours of notication under the State aid Temporary Framework to support the economy in the context of the COVID-19 emergency.

Commission approves German State aid schemes to mitigate the economic impact of COVID-19 outbreak Monday 23 March

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The European Commission approved two State aid schemes notied by Germany with the goal to support the German economy in the context of the COVID-19 outbreak. These schemes, which will provide liquidity in the form of subsidised loans to companies affected by the pandemic, were approved under the State aid Temporary Framework to support the economy in the context of the COVID-19 emergency.

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Commission approves €3 billion in Portuguese State aid to support economy in COVID-19 outbreak Monday 23 March

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Under the State aid Temporary Framework to support the economy in the context of the COVID-19 emergency, the European Commission decided to approve four Portuguese guarantee schemes for small and medium-sized enterprises (SMEs) and midcaps affected by the coronavirus outbreak, with a total budget of 3 billion euros.

Commission approves French State aid schemes to support economy in COVID19 outbreak Monday 23 March

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The European Commission approved three French State aid schemes to mobilise 300 billion euros of liquidity support for companies affected by the coronavirus outbreak. Under the State aid Temporary Framework to support the economy in the context of the COVID-19 outbreak, the Commission found the measures to be necessary, appropriate, and proportionate to remedy the serious disturbance in the economy posed by the outbreak..

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Commission approves Danish guarantee scheme for SMEs affected by Coronavirus outbreak

Commission approves Latvian State aid schemes for companies affected by COVID-19

Monday 23 March

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Under the State aid Temporary Framework to support the economy in the context of the COVID-19 outbreak, the European Commission approved a Danish guarantee scheme for small and medium-sized enterprises (SMEs). The measure has a budget of DKK 1 billion (approx. 130 million euros) and aims to limit the risks associated with issuing operating loans to those companies that are most severely affected by the economic impact of the pandemic.

Commission issues guidance on ‘green lanes’ and border management in the speciﬁc context of the COVID-19 pandemic Monday 23 March

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New practical guidance was made available on how to implement the Commission’s Guidelines for border management, namely through ‘green lane’ border crossings to speed up the transportation of freight vehicles, carrying goods that can ensure cross-border supply chains can continue to operate unhindered by obstacles set up due to the COVID-19 pandemic.

Joint statement by the European Competition Network on the application of competition law during the COVID-19 crisis Monday 23 March

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The competition authorities in the European Competition Network issued a joint statement on how to apply the European competition rules during the crisis, recalling that such rules are exible enough to take into account changes in market circumstances such as the ones posed by the pandemic.

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The European Commission decided to approve two support measures notied by Latvia in favour of companies affected by the coronavirus outbreak. The Latvian measures, with an overall budget of 250 million euros, were approved under the State aid Temporary Framework adopted by the Commission on 19 March 2020.

COVID-19: To increase production of medical supplies, European standards made freely available Monday 23 March

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Upon the European Commission’s request, along with the European Committees for Standardisation and Electrotechnical Standardisation, it was agreed to make 11 European standards for certain medical devices and personal protective equipment freely available. The standards are available for download from the websites of CEN national members.

Securities and Markets Stakeholder Group calls for postponed deadlines, ESMA coordination, and more, in the light of the COVID-19 emergency Monday 23 March

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The report, issued at the Group’s own initiative, expressed great concern about the enormous impact of the COVID-19 pandemic on the nancial markets. It recommended that the European Securities and Markets Authority should postpone deadlines for consultations, the implementation of new rules, and certain reporting obligations. It also called for a simplication of the implementation of EU rules.

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ESMA’s positive Opinion on the ban on EU Ministers of Finance agree on trigshort-selling positions in Austrian mar- gering Stability and Growth Pact general escape clause in light of COVID-19 kets outbreak Monday 23 March READ MORE ON EU LAW LIVE The European Securities and Markets Authority issued a positive Opinion on an emergency measure notied by the Austrian Financial Markets Authority. The measure bans entering into or increasing short sales or transactions other than short sales which create or relate to a nancial instrument, if they confer a nancial advantage on a natural or legal person in the event of a decrease in the price or value of shares admitted to trading on the Regulated Market of the Vienna Stock Exchange.

European Data Protection Board: bodies must protect personal data even in exceptional time of COVID-19 pandemic Monday 23 March

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The EU Agency issued a formal statement with guidance on processing of personal data in the context of the COVID-19 pandemic. It recalled that the GDPR and all other data protection legislation still applies in full, but also pointed out where derogations may apply in the specic COVID-19 emergency that data processors and controllers are faced with.

Council Decision temporarily derogating from Council’s Rules of Procedure due to the COVID-19 outbreak Tuesday 24 March

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Ofcial publication was made of Council Decision 2020/430 on a temporary derogation from the Council’s Rules of Procedure in view of the travel difculties caused by the COVID-19 pandemic in the Union. The Decision, adopted on Monday 23 March, sets out that a decision to use the ordinary written procedure, when taken by Coreper, shall be taken in accordance with the voting rule applicable for the adoption of the Council act concerned.

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Monday 23 March

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Ministers of Finance of the EU Member States agreed with the assessment of the Commission, as set out in last week’s Communication, that the conditions for the use of the general escape clause of the EU scal framework are fullled.

In the midst of the COVID-19 outbreak, EU scholarship and conferences go digital at Dublin City University Tuesday 24 March

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In contrast with the many cancellations of events, a joint conference on the Rule of Law and Sustainable Finance, organised by the Dublin Law and Politics Review and Dublin City University, took place online, through Zoom, with the full array of speakers available online.

EIOPA’s Recommendations on deadlines of supervisory reporting and public disclosure in the insurance sector in the COVID-19 context Monday 23 March

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The European Insurance and Occupational Pensions Authority handed down Recommendations on supervisory exibility regarding the deadline of supervisory reporting and public disclosure, in order to provide national competent authorities with a consistent approach to supervision in the context of the COVID-19 pandemic.

Medicines Authorities’ Guidance on how to manage clinical trials during the COVID-19 pandemic Tuesday 24 March

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The European Commission, the European Medicines Agency, and national Head of Medicines Agencies (HMA) published Guidance for sponsors on how to manage the conduct of clinical trials in the context of the COVID-19 pandemic.

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Commission approves Luxembourg State aid scheme for companies affected by COVID-19

COVID-19: Community Plant and Variety Ofﬁce extends time limits for certain deadlines

Tuesday 24 March

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The European Commission decided to approve Luxembourg’s 300 million euro scheme to support companies and liberal professions affected by the coronavirus outbreak. The schemes were approved under the State aid Temporary Framework adopted by the Commission on 19 March 2020.

Eurogroup starts debate on ‘additional forms of support’ to prepare the ground for economic recovery Tuesday 24 March

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The CPVO took further measures to deal with the circumstances caused by the COVID-19 pandemic, including the extension of time limits that fall within the period 17 March to 3 May inclusive, for parties to proceedings before the Ofce and Board of Appeal.

Cooperation with Commission and telecom operators to ﬁght COVID-19 consequences Wednesday 25 March

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The Eurogroup met via videoconference in its inclusive format to start a debate on additional forms of support to reinforce crisis management and prepare the ground for economic recovery. To this end, the Eurogroup’s discussions advanced on the use of the European Stability Mechanism.

The European Commission held a videoconference with the CEOs of European telecoms companies and the association of mobile telecoms operators GSMA, to discuss how to keep networks operating through the COVID-19 crisis. Consumer protection and the sharing of anonymised metadata for modelling and predicting the propagation of the virus were also on the agenda.

Commission approves Spanish State aid schemes for companies and selfemployed affected by COVID-19

Commission approves German State aid schemes to support the economy in the COVID-19 outbreak

Wednesday 25 March

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The European Commission decided to approve two Spanish guarantee schemes on new loans and renancing operations, with a total budget of approximately 20 billion euros, for companies and self-employed workers affected by the coronavirus outbreak. Both measures were approved under the State aid Temporary Framework adopted by the Commission on 19 March 2020.

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The European Commission decided to approve two State aid schemes notied by Germany aiming to support the German economy in the context of the coronavirus outbreak. The measures, approved under the State aid Temporary Framework for the COVID-19 crisis, include a scheme to support companies affected by the coronavirus outbreak through direct grants and an additional support scheme for guarantees on loans for affected companies.

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Commission approves Italian State aid scheme to support SMEs affected by COVID-19 Wednesday 25 March

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Under the State Aid Temporary Framework for the coronavirus crisis, the European Commission decided to approve a State aid scheme notied by Italy in support of affected small and medium-sized enterprises (SMEs). The scheme consists of a State guarantee supporting a debt moratorium from banks for SMEs, which includes the postponement of repayments of overdraft facilities, bank advances, bullet loans, mortgages and leasing operations.

Measures taken to protect the EU’s agri-food sector from COVID-19 Wednesday 25 March

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The European Commission issued a press release explaining the main measures it has adopted for ensuring food security and an effective food supply chain across the continent. It also announced that it will monitor agricultural markets and trade of food products and that the EU market observatories will be updated regularly.

Commission’s statements and actions today in response to COVID-19 pandemic Thursday 26 March

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The President of the European Commission and the President of the European Council participated in the extraordinary G20 Leaders’ videoconference called by Saudi Arabia that currently holds the G20 Presidency. A commitment was made to international cooperation and assistance to vulnerable countries, and an emphasis made on the unprecedented action, and fast, expansive and coordinated global action that is necessary on the health and economic fronts to save lives and avoid a further economic crisis.

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ESMA and EBA Statements to promote consistent application of accounting and prudential supervision standards in the COVID-19 context Wednesday 25 March

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The European Securities and Markets Authority and the European Banking Authority have issued separated and coordinated public Statements regarding, respectively, the accounting implications and the prudential framework implications of COVID-19. The two Statements are consistent as regards nancial reporting.

ESMA clariﬁes its position on the implementation of SFTR in the context of the COVID-19 outbreak Thursday 26 March

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The European Securities and Markets Authority issued a revised version of its 19 March Public Statement on coordinated supervisory actions on the application of Securities Finance Transactions Regulation (SFTR), clarifying its scope of application.

European Parliament approves three urgent proposals in response to COVID19 outbreak Thursday 26 March

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In its extraordinary plenary session, the European Parliament almost unanimously adopted three urgent Commission proposals containing measures to face the challenges posed by the coronavirus outbreak. These are the Coronavirus Response Investment Initiative, the amendment of the EU Solidarity Fund, and the amendment of the EU Slots Regulation.

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Facilitating Air Cargo Operations during COVID-19 outbreak: Commission Communication

European Chemicals Agency: speeding up the manufacture and supply of disinfectants

Friday 27 March

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The Commission published more guidelines, in the form of a Communication, in a call to the Member States to support air cargo operations during the coronavirus crisis, as the current restrictions on ights and the movement of passengers and transport personnel has severely disrupted European and global supply chains.

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The European Chemicals Agency issued an announcement about speeding up the manufacture and supply of disinfectants in the context of the COVID-19 pandemic. The ECHA will support EU and EEA authorities to apply derogations from the normal authorisation requirements for biocidal products. A centralised submission is being prepared, and a recommendation was given as to the compositional requirements of two approved active substances that can be used in disinfectants.

Joint statement of the members of the European Council on COVID-19 measures and other issues Friday 27 March

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Members of the European Council issued a Joint Statement after the informal meeting held by video conference on Thursday 26 March. The Statement focuses on the EU’s actions in response to the COVID-19 outbreak, but also tackles EU enlargement, the earthquake in Croatia, and the situation at the EU’s external borders.

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SPECIAL COVERAGE ON COVID-19

This Week's Analyses & Op-Eds 23-27 March 2020

Fighting the fallout: the ECB adopts a purchase programme in response to the coronavirus

The European Central Bank’s pandemic bazooka: mandate fulﬁlment in extraordinary times

By Marijn van der Sluis

By René Smits

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Analysis on the ECB’s Pandemic Emergency Purchase Programme (PEPP), exploring its legal characteristics as well as its similarities and differences with the Public Sector Purchases Programme (PSPP) and the Outright Monetary Transactions (OMT) programme. A mustread to understand a key measure by the ECB to ght the consequences of the COVID-19 outbreak.

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Opinion Editorial focusing on the legal issues of the European Central Bank’s response to the challenges posed by the COVID-19 outbreak. René Smits puts into context and explains the meaning the main measures adopted so far by the ECB to face the ongoing crisis, exploring in detail the legal basis for this emergency measures.

State Aid in the Time of COVID-19 By Andrea Biondi

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Opinion Editorial on the recently adopted State Aid Temporary Framework, through which the Commission has rethought the operation of existing State aid rules to adapt them to the COVID-19 outbreak. Andrea Biondi explains the meaning, implications, and potential effects of the Temporary Framework, also pointing at its underlying policy decisions on the interaction between EU and national economic policies.

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Highlights in other news CJEU to further clarify direct effect and applicability ratione tempore of EU competition rules

Preliminary reference on the independence of the Hungarian judiciary published

Monday 23 March

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Ofcial publication was made of the request for a preliminary ruling (C-819/19) lodged by the District Court of Amsterdam concerning the scope of application ratione tempore and the direct effect of Article 101 TFEU, Article 53 of the EEA Agreement, and Article 53 of Council Regulation 1/2003, when it comes to disputes between injured parties (in the main proceedings shippers, recipients of air cargo services) and air carriers.

Hungarian court asks the CJEU to clarify EU rules governing posting of workers Monday 23 March

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Ofcial publication was made of the request for a preliminary ruling (C-428/19) lodged by the Administrative and Labour Court of Gyula, Hungary, concerning the interpretation of EU rules on the social protection of posted workers.

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Questions for a preliminary reference in the case of IS (C-564/19) were published in the Ofcial Journal. The case concerns several relevant issues on the independence of the Hungarian judiciary and the EU’s rule of law standards.

Commission’s Report on progress made under the 2017 Strategic Partnership with the EU’s outermost regions Monday 23 March

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The European Commission adopted a report on progress made under the 2017 Strategic Partnership with the EU’s outermost regions, showing the main results of the Partnership and suggesting that further efforts at all levels are required to address climate change, protect biodiversity, introduce the circular economy and shift to renewable energy in the outermost regions.

ECtHR judgment on alleged collective expulsions regarding Slovakia

Commission’s Report on progress made under the 2017 Strategic Partnership with the EU’s outermost regions

Tuesday 24 March

Monday 23 March

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In Asady and Others v. Slovakia (application no. 24917/15), the ECtHR ruled that Slovakian authorities did not subject Afghani nationals to collective expulsion when they returned them to Ukraine. in the recent Grand Chamber judgment in N.D. and N.T. v. Spain, the ECtHR found that the expulsion was not collective in nature because the applicants’ removal was not carried out without any examination of their individual circumstances.

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Commission extends Liner Consortia Block Exemption Regulation for four more years

Commission launches consultation for drafting the ﬁrst annual Rule of Law Report

Tuesday 24 March

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The European Commission decided to extend until 25 April 2014 a special competition regime exempting from EU antitrust rules liner shipping consortia that have a combined market share of up to 30%.

Council conclusions on the enlargement and stabilisation and association process concerning Albania and North Macedonia Wednesday 25 March

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The Council of the EU adopted conclusions on the EU’s enlargement policy and the EU-Western Balkans stabilisation and association process, deciding to open accession negotiations with the Republic of Albania and with the Republic of North Macedonia.

CJEU: Irregular appointment of judge of the Civil Service Tribunal does not breach right to a hearing by a tribunal previously established by law Thursday 26 March

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In the highly anticipated Simpson case (Joined Cases C542/18 RX II and C-543/18 RX II), the Grand Chamber of the Court of Justice ruled that the irregular appointment of a judge of the Civil Service Tribunal does not violate Article 47 of the Charter and therefore that the General Court erred in law when it quashed a judgment of the CST on those grounds.

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The European Commission launched a targeted consultation in order to prepare its annual Rule of Law Report, one of the major initiatives of the Commission’s Work Programme for 2020. The Report will monitor signicant developments, both positive and negative, relating to the rule of law in all Member States.

CJEU: Polish references on judicial independence declared inadmissible, but Luxembourg sends warning if disciplinary measures are taken Thursday 26 March

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The Grand Chamber of the Court of Justice delivered its judgment in Miasto Łowicz and Prokurator Generalny (Joined Cases C-558/18 and C-563/18), a preliminary reference questioning the new Polish legislation relating to the disciplinary regime for judges. The Court of Justice declared the requests as inadmissible for lack of connection with EU law, but it stated that having made a preliminary reference cannot expose a national judge to any disciplinary proceedings.

ECtHR: French criminal courts must conduct proportionality tests when restricting the freedom of expression Thursday 26 March

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The European Court of Human Rights ruled in Tête v. France that French authorities breached the applicant’s freedom of expression when they convicted him for malicious falsehood without conducting a proper proportionality test.

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CJEU judgment on information rights concerning the right of withdrawal in consumer credit agreements Thursday 26 March

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The Court of Justice handed down its judgment in JC v Kreissparkasse Saarlouis (C-66/19), ruling that credit agreements for consumers must include clear and concise information on how the period for withdrawal is to be calculated, and that it is not enough to refer to mandatory information by a series of references to provisions of national law.

CJEU holds that Implementing Regulation 2016/1140 is invalid concerning classiﬁcation of self-heating patches and belts to relieve pain Thursday 26 March

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In Pzer Consumer Healthcare (C-182/19), the Court of Justice declared invalid Implementing Regulation 2016/1140 concerning the classication of certain goods in the Combined Nomenclature.

CJEU: air carriers can be sued under special rules of jurisdiction even when a ﬂight is part of a travel package and there is no contract between the air carrier and passenger Thursday 26 March

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In its judgment in Primera Air Scandinavia (C-215/18), the Court of Justice claried the issue of which jurisdiction can hear a claim made by a passenger (seeking compensation for a delayed ight) against an air carrier, when the ight was part of a travel package purchased by a travel agent, under Brussels I Regulation 44/2001.

EU and 15 WTO members establish contingency appeal arrangement for trade disputes Friday 27 March

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The EU and 15 other members of the World Trade Organization agreed on a Multiparty Interim Appeal Arbitration Arrangement that will allow them to bring appeals and solve trade disputes among them despite the current paralysis of the WTO Appellate Body.

Other Analyses & Op-Eds The scope and consequences of the CJEU’s jurisdiction in the ﬁeld of the CFSP: AG Bobek’s Opinion in Case C14/19 P, SatCen v KF By Gesa Kübek

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Analysis on a case concerning a dispute between a decentralised EU agency operating in the eld of the CFSP and a member of its staff that raises two questions of general importance. First, what is the scope of the Court of Justice of the EU’s (CJEU) jurisdiction with regard to administrative acts, such as acts of staff management, in the eld of the CFSP? Second, assuming that the CJEU retains some jurisdiction, does that jurisdiction leave room for dispute settlement mechanisms established in EU bodies or agencies?

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Revocation of trademark that has never been used does not bar infringement claims, rules CJEU By Bernd Justin Jütte

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Analysis on Cooper International Spirits (C-622/18), in which the Court of Justice ruled that the owner of a registered but subsequently revoked trademark can claim damages for infringements to that mark committed before revocation although the trademark has never been used. The author puts this ruling in the context of the trademark and copyright law trends to strengthen the protection of rights holders.

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Library - Book Review PAUL ENGLAND

By Alberto Torralba

Hart Publishing, 2019, 552 pp.

A Practitioner’s Guide to European Patent Law READ ON EU LAW LIVE

Review of a comprehensive and practical guide to European patent law, which manages to both systematise and provide an overview of the main common principles of European patent law and be a reference guide for European Intellectual Property practitioners.

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