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BEING A JUDGE IN TIMES OF PANDEMIC José Igreja Matos
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THE UK COVID-19 RESPONSE: A BEHAVIOURAL IRONY? Anne-Lise Sibony
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EU LAW LIVE 2020 © ALL RIGHTS RESERVED
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Being a judge in times of pandemic José Igreja Matos
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« By giving the government unlimited powers, the most arbitrary rule can be made legal; and in this way a democracy may set up the most complete despotism imaginable » Friedrich August von Hayek, The Road to Serfdom (1944)
1. Ironically, it seems that the term ‘dystopia’, although previously known, became recognised only when John Stuart Mill, a classical liberal, used it in one of his Parliamentary Speeches in 1868. The recent pandemic crisis and the ensuing measures dictated by national governments have warned us once again of the rise of totalitarian policies based on an extremely high level of control over public and private life. These grave concerns are greatly fuelled by well-known developments, in the recent past, with the intimidating decline of the Rule of Law. According to the Democracy Report 2020, for the rst time since 2001, autocracies have become a majority, with 92 countries hosting 54% of the world’s population. Regrettably, the concrete examples are numerous, in particular those concerning threats to judicial independence, an essential pillar of the Rule of Law; the most impressive ones in the European Union are cer-
tainly very familiar. The so-called ‘illiberal state’ implemented in Hungary caused longlasting damage to the basic rules of democracy and the assault on the judicial system in Poland materialised through the euphemistically labelled ‘judicial reforms’, in truth directly aimed at a sole purpose: to annihilate the independence of the judiciary. ‘Something is rotten in the heart of Europe’ claimed recently the Editorial Comment of EU Law Live commenting on the attacks on the Rule of Law and Judicial Independence and correctly advocating that it ‘is time for Europe’s leadership to make up its mind and fearlessly confront what could become the EU’s vilest, and eventually lethal, political crisis’. The European Association of Judges, the biggest organisation of judges in Europe representing the most relevant national associations in 43 countries, have, over the years, relentlessly denounced the ongoing deterioration of the Rule of Law in our continent (2).
1. President of the European Association of Judges; First Vice-President of the International Association of Judges 2. The European Association of Judges is a regional branch of the International Association of Judges (IAJ). Founded in 1953, the IAJ comprises associations of 92 countries around the world. A brief search on our website vigorously demonstrates our commitment to judicial independence. Consult, for instance, the special section dedicated to the situation of the Polish Judiciary or of the Turkish judges
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Counting on too many occasions the silent complicity of top EU authorities in Brussels, populist national leaders have managed to erode the principle of separation of powers and to jeopardise an essential value for democracy built in the sole interest of citizens: to have impartial courts composed of judges that handle cases by treating all litigants equally.
gency bill would grant the Government sweeping powers to rule indenitely by decree with no effective checks from the other State powers, especially knowing how the judicial independence in the country has been weakened;
- the amnesty bill to be passed by the Turkish authorities in order to reduce the overcrowded prison population is planned to exclude from this benet all ‘political’ pri2. In a background of overall anxiety vis-àsoners including judges, prosecutors and vis the safeguard of common basic princilawyers. This unacceptable discriminaples enshrined by national constitutions and tion was expressly European treaties, the condemned by the now added pandemic has Several States are already European Associaintensied our concerns. tion of Judges; using the COVID-19 crisis to The philosopher Byungundermine the principles and - the inappropriate Chul Han underlined the the institutions upholding use of lengthy ‘sunreal risk that after the set clauses’ to emershock caused by this vithe Rule of Law gency bills, diminisrus, a digital police regihing, for long peme – emulating some riods of time, the proper control, namely Asian systems - will denitely land in Euroby the judiciary, of any undue constraint pe. If that happens, a state of emergency on fundamental rights. The initial propowould become the consented-to norm. sal from the British Government indicating a period of two years (!) for the CoroTrailing this tendency, several States, partinavirus Bill, later amended to introduce a cularly in central and southeastern Europe, six-month review, demonstrates how unaare already using the COVID-19 crisis to unware political authorities are, even in condermine the principles and the institutions solidated democracies, about the imporupholding the Rule of Law. tance of ‘sunset clauses’, shaped to circumscribe in short periods of time all meaToday there are well-founded reasons to be sures that constrain fundamental rights. even more vigilant. I will introduce just three eloquent cases derived from special Besides these examples the EU is confronlaws presented by countries of the Old Conted, in general, with the circumstance that tinent: State Members are lacking an adequate legal basis to the present massive collective - certainly, the worst case is Hungary – encroachment on fundamental rights. yes, an EU country! – where the new emer-
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The derogation from the provisions of the European Convention on Human Rights by four of the Council of Europe's 47 member states - Armenia, Latvia, Moldova and Romania - constitutes yet another disturbing sign. 3. An emergency bill, or other legal measure, aiming to contain the spread of the coronavirus, is obliged, in all cases, to comply with the principles of the Rule of Law such as those of necessity, proportionality, democratic scrutiny, reviewability, equal protection of the law and transparency of information. Thus, a likely violation of these wellestablished standards comes through the recent proposals to introduce widespread mobile phone tracking by the State (Slovakia), to utilise armoured vehicles with machine guns to patrol the streets (Albania), to publish online lists of names and addresses of quarantined citizens (Montenegro), etc. The balancing exercise to be guaranteed by each EU Member State must follow the crucial demands of the principle of proportionality, as Article 52(1) of the EU Charter of Fundamental Rights commands. It might be worth it to quote this Charter norm: ‘Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject
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to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others.’
An emergency bill, or other legal measure, aiming to contain the spread of the coronavirus, is obliged, in all cases, to comply with the principles of the Rule of Law 4. In 1789, in the midst of the French Revolution, the Declaration of the Right of Man and the Citizen declared in article 16º: ‘Any society in which no provision is made for guaranteeing rights or for the separation of powers, has no Constitution.’ Without the Rule of Law human rights are overlooked, the wealth of nations inevitably declines and social order ultimately breaks down. As Winston Churchill taught us: ‘Those that fail to learn from history, are doomed to repeat it.’ National governments should not be tempted to perceive the present crisis as an occasion to overtake the essential role of independent courts as guardians of civil liberties.
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5. Being a judge in times of a pandemic signies, rst and foremost, a total and unequivocal solidarity to our fellow citizens.
One can only echo Albert Camus’s words in his novel ‘The Plague’: ‘I have no idea what’s awaiting me or what will happen when this all ends. For the moment I know this: there are sick people and they need curing.’
Secondly, analysing the specic case of the judiciary, the corona-induced quarantines created critical repercussions on court activities. Across all countries, the efforts to slow the spread of the deadly coronavirus have massively impacted on the functioning of the justice system. Most of the judicial les are, or will be, inevitably deferred, if not paralysed. Further backlog and delayed cases are expected, with negative effects on the large number of complaints against the restrictions imposed during the lockdown. To address this problem it is crucial to ensure that judges, prosecutors, lawyers and judicial ofcers can continue to perform their professional activities, especially those directly connected with the protection of human rights in times of emergency; in this sense, the minimum possible risk to the health of judicial practitioners and their families must be guaranteed by public authorities. The Bangalore Principles determine that ‘a judge must accept personal restrictions that
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might be viewed as burdensome by the ordinary citizen and should do so freely and willingly’. This is the situation judges are now facing. We will continue to work at the service of each citizen anytime an urgent measure must be decided, anytime a ruling must be taken in matters that imply with fundamental rights, protecting, in particular, the more vulnerable members of our communities.
The efforts to slow the spread of the deadly coronavirus have massively impacted on the functioning of the justice system
The duty of each judge is to be promptly available to serve our fellow citizens in a permanent pledge to public service and social solidarity. In the absence of access to justice, people are unable to have their voice heard, exercise their rights, challenge discrimination or hold decision-makers effectively accountable. The immense benets of digitised court processes should be then maximised; the main concept behind technologies will be to use them as extensively as possible in order to constrain court activities only if there is no other option. Recently a judge publicly presented an example involving the trial of a respondent, in pre-trial detention, to be held in her court: the accused were to present themselves and evidence by videoconference in the prison, and the witnesses were to remain in different areas of the court, previously disinfected, allowing them to testify via Skype. Envisaged measures to protect victims of domestic violence would be a welcome guideline on how to address the emerging pro-
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blems caused by the forced reclusion of distressed families. According to this logic, emergency bills should regulate that citizens subject to connement may move around public spaces to provide shelter for victims of crimes such as domestic violence or human trafcking, as well as to help protect children or elder people at risk. 6. The present pandemic has already triggered a vast economic crisis demanding unambiguous solidarity from all State Members at the risk of the EU’s own survival. But it is also vital to prevent the COVID-19 crisis from progressing into a Rule of Law catastrophe. EU authorities must take a clear stand against the attempts to utilise the COVID19 crisis to expand the powers of authoritarian states. This crisis should offer a welcome opportunity to prove that the EU can protect us, even from our respective governments. In any case, whatever happens, make no mistake: In the aftermath of coronavirus crisis, despite the alleged democracy ‘fatigue’, despite the ‘siren songs’ instigated by digital technology and its absolute power to control, despite the inevitable public angst that eases the approval of measures undermining individual freedoms, the European Judges will always reject ‘dystopian’ regimes. We will serenely remain loyal to the fundamental values of Rule of Law. And this is the key message to convey in the troubled days through which we are living.
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EU authorities must take a clear stand against the attempts to utilise the COVID-19 crisis to expand the powers of authoritarian states
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The UK COVID-19 Response: A Behavioural Irony? Anne-Lise Sibony The diversity of responses to the COVID-19 outbreak across countries both internationally and within the EU is considerable and the lack of a coordinated response at EU level is being criticised (2). Within this natural experiment involving different national policies, possibly the most strikingly distinct path is the one initially chosen by the UK and which the Netherlands is persevering with. Instead of trying to avoid contamination as much as possible through drastic measures such as early lockdown, the strategy is to encourage ‘herd immunity’(3). In the UK, this initial policy choice was presented as based on both epidemiology and behavioural sciences (4). ‘Behavioural fati-
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gue’ a little-known phrase not found in the most comprehensive textbook (5) suddenly rose to (probably short-lived) fame (6). The suggestion was that people would get tired of staying at home, so lockdown would be ineffective. In the Netherlands, the Prime Minister announced similarly relaxed rules about social distancing (7) and though he did not explicitly refer to any behavioural input, it is nonetheless highly likely that there was one (8). The initial move of both these governments was met with scepticism and appeared shocking to many. The association between behavioural input and the policy decision to let the virus spread by refraining from ordering lockdown is unfortunate but
1. Professor of EU Law, UCLouvain. I would like to thank Lucia Reisch, Fabrizio Esposito, Vincent Delhomme and Alessandra Donati for helpful comments on a previous draft. A version of this article was published yesterday by the European Journal of Risk Regulation in its Special Issue on COVID19 2. Alberto Alemanno, Europe doesn't have to be so helpless in this crisis, The Guardian, 26 March 2020. See also ‘The Good Lobby’s Petition calling for a coordinated EU response. 3. While it is true that Boris Johnson’s statement of 10 March 2020 about ‘taking the virus on the chin and let it move through the population’ has been taken out of context (the Prime Minister said this was ‘one theory’ and then outlined his preferred one, it remains true that the UK has taken more limited social isolation measures than other countries. The full transcript of the PM’s televised interview is available here. In the Netherlands, Prime Minister Rutte made a similar announcement on 16 March 2020 in a televised speech (the rst of a Dutch Prime Minister since WWII) The Prime Minister does not use the phrase ‘herd immunity’ but refers to an interesting distinction between ‘maximum control’ (the label for the chosen strategy of no lockdown) and lockdown. 4. See Sarah Boseley, ‘Herd immunity: will the UK's coronavirus strategy work?‘, The Guardian, 13 March 2020, quoting David Halpern, head of the Behavioural Insights Team; Institute for Government (UK), ‘Explainer’ on the ‘Nudge Unit’. The Scientic Advisory Group on Emergencies (SAGE) advising the government includes epidemiologists, clinicians, virologists, mathematical and statistical modellers, molecular biologists and social and behavioural scientists. Charlie Cooper and Ashleigh Furlong, ‘Going viral: Boris Johnson grapples to control coronavirus message’, Politico, 16 March 2020. 5. Eyal Zamir and Doron Teichman, Behavioural Law and Economics, OUP, 2018. 6. Nick Chater, People won't get 'tired' of social distancing – the government is wrong to suggest otherwise, The Guardian, 16 March 2020, 7. The approach to tackling coronavirus in the Netherlands allows certain gatherings such as weddings and funerals of up to 30 people as well as government and business meetings of up to 100 people. 8. This is not only a presumption based on the fact that the Dutch Government is among the most behaviourally aware in the EU but more specically because the Dutch National Institute for Public Health and the Environment, whose role it is to advise the government, enjoys in-house expertise on behavioural change.
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it is there. ‘How could a government rely merely on nudges in the face of a grave danger?’ observers legitimately asked (9). While no government now relies merely on nudges (even the Netherlands have ordered bars and schools to close), this particular episode in the unfolding world-wide Corona saga gives behaviourally-minded analysts pause. It is worth considering the proper place of behavioural insights in the difcult policy choices at hand.
How could a government rely merely on nudges in the face of a grave danger?
Difcult choices Trying to eradicate the virus through comprehensive lockdown (suppression) has the advantage that it appears to work. As far as one can tell, it seems to have worked in China. It has the drawback that it is hugely costly for the economy and that the number of cases will still be large enough to overwhelm even well-resourced health systems (10) . This means not only that many people will die, including overworked and exposed health professionals, but also that morally unpleasant choices will have to be made. In addition, it may be necessary to prolong lockdown for months or repeat it many times over if a new wave of infection occurs as soon as measures are relaxed, which is entirely likely in the absence of herd immunity (11). Mitigation, on the other hand, aims to create precisely such herd immunity. It consists of limiting isolation to groups most at risk of developing severe symptoms and letting the virus infect large sections of the remaining population. The social and economic disruption is more limited with this strategy but it has the drawback that people most at risk might be misidenti-
It may be necessary to prolong lockdown for months or repeat it many times over if a new wave of infection occurs as soon as measures are relaxed
9. The term ‘nudge’ has been popularised by RH Thaler and CR Sunstein, Nudge: Improving Decisions about Health, Wealth, and Happiness, New Haven, Yale University Press, 2008, who dene it as ‘any aspect of the choice architecture that alters people’s behaviour in a predictable way without forbidding any options or signicantly changing their economic incentives’. For helpful clarications and a more precise denition, see P. Guldborg Hansen, The Denition of Nudge and Libertarian Paternalism: Does the Hand Fit the Glove?, EJRR 2016/1, 1-20; and A. Tor, The Critical and Problematic Role of Bounded Rationality in Nudging, in K. Mathis, A. Tor (eds.), Nudging – Possibilities, Limitations and Applications in European Law and Economics, Springer 2016, pp. 3-10; Fabrizio Esposito, Conceptual Foundations of the Behavioural Analysis of Consumer Law in Europe, in Micklitz, Sibony, Esposito (eds.), Research Methods in Consumer Law, Cheltenham: Edward Elgar, 2018, pp. 38-76. 10. Ibid citing the Imperial College Report, also referred to below at footnote 17, which predicted that peak demand for intensive care in the UK would still be eight times the surge capacity of Britain’s National Health Service. Imperial College COVID-19 Response Team, Impact of nonpharmaceutical interventions (NPIs) to reduce COVID-19 mortality and healthcare demand, 16 March 2020, DOI: https://doi.org/10.25561/77482https://doi.org/10.25561/77482 11. European Centre for Disease Prevention and Control. Guide to revision of national pandemic inuenza preparedness plans - Lessons learned from the 2009 A(H1N1) pandemic, Stockholm: ECDC, 2017, p. 15.
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ed, thus causing deaths that could have been avoided with more drastic measures. Importantly, it is also irreversible: after the virus has spread widely, isolation will not be as effective as it would have been in the early stages. As The Economist sums up ‘The bitter truth is that mitigation costs too many lives and suppression may be economically unsustainable’ (12). Indeed, it has been estimated when the choice was made to go for herd immunity that 80% of the UK population would be infected, plausibly resulting in half a million deaths (13). On the other hand, the French National Statistical Institute has calculated that production dropped by 35% because of the lockdown (14), which means that each month of this policy costs 3 points of annual GDP (15).
Choosing the right policy in these circumstances is challenging for many reasons, starting with a multi-faceted knowledge problem: we have only partial knowledge of the virus, of exactly how it spreads and how immunity builds up or what existing drugs could help. There is neither enough data (16) nor enough time to conduct serious costbenet analysis (leaving aside ethical concerns about the utilitarian morality underpinning such analyses and the reluctance to put a price tag on lives) (17). Even risk analysis seems to have been neglected. In addition, to all that we do not know, there are logistical constraints pertaining to production of protective equipment, sanitising gel, or ventilators. There are conicting values and some trade-offs are becoming increasingly salient, such as balancing health and privacy (18). Finally, the epidemic does not shut
12. The Economist, Paying to stop the pandemic, 19 March 2020. 13. Figure published by Denis Campbell in the Guardian, citing ‘a senior NHS ofcial’: ‘UK coronavirus crisis 'to last until spring 2021 and could see 7.9m hospitalised'. Dennis Campbell, ‘UK coronavirus crisis 'to last until spring 2021 and could see 7.9m hospitalised'The Guardian, 15 March 2020. 14. INSEE, Point de conjoncture 26 March 2020. 15. Les Echos, ‘Coronavirus: un mois de connement représente une perte de 3 points de PIB annuel, selon l'INSEE’, 26 March 2020. 16. On the dismal statistics, see David Bessis, ‘Coronavirus: the key numbers we must nd out’, Medium, 26 March 2020. 17. For a discussion and an explanation about why in the US a life is valued at $ 9 million, C. Sunstein, The Cost Benet Revolution, MIT Press, 2019, p. 39 et seq. 18. Privacy laws should be ‘paused’ as part of cutting the red tape to help ght the coronavirus, write behavioural economists Sendhil Mullainathan and Richard H. Thaler in ‘To Fight the Coronavirus, Cut the Red Tape’, New York Times, 24 March 2020; Andrea Renda, Will privacy be one of the victims of COVID-19, CEPS, 23 March 2020.
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down politics: just recall how France held the rst round of municipal elections during the rst week of lockdown after the President gave in to the opposition of the president of the Senate (19) or how Orban is using the virus to advance his political agenda of ever-tighter grip over the Hungarian institutions (20). In addition to scientic uncertainties, painful trade-offs, economic and logistical constraints, policy makers also have to reckon with behavioural factors. Behavioural dimensions Quite obviously, citizens’ behaviour affects how the virus spreads. Getting people to behave in certain ways can literally save lives. In other words, the stakes have never been so high when it comes to incorporating behavioural insights into policy design. Yet, getting things right is a tall order as the behavioural changes needed are far-reaching, but also because governments are under intense pressure to make decisions fast, under several veils of uncertainty and in a context characterised by both rational fear of experts and irrational optimism of citizens, many of whom feel they are not personally at risk. All of these circumstances offer a fertile ground for biases and errors. Promoting safe behaviour: a natural turf for behavioural insights
In the absence of treatment or vaccine, the only way to slow down the progression of the virus is changing behaviour. Such change needs to occur in connection with deliberate behaviour, such as going out or washing one’s hands, with conscious but habitual behaviour, such as greeting people or standing close to them, as well as with mostly unconscious behaviour, such as touching one’s face (21). Initiating rapid behavioural change on a massive scale is not the usual business of governments, nor is the regulation of micro social interaction, in principle, the purpose of law. Yet, in the absence of a vaccine and amid controversies on the efcacy of available drugs, ‘Non Pharmaceutical Interventions’ (NPIs) are initially the single most important tools to try and protect populations’ health (leaving aside the indirect health risks generated by loss of income over time) (22). Things are rapidly evolving: some governments have allowed use of existing antiviral drugs in hospitals, a French Court has recently ordered health authorities to stock up on such drugs (23), and a vaccine may be within reach (24). Yet, it remains that behavioural factors are crucial and there is little doubt that this dimension has a place in policy design. Broadly speaking, the context is favourable to such an approach as governments in many parts of the world have been increa-
19. Marion Mourgue, Coronavirus : Larcher s'est opposé auprès de Macron à un report des municipales, Le Figaro, March 12th 2020. 20. Judy Dempsey, Orbán Exploits Coronavirus Pandemic to Destroy Hungary’s Democracy, Carnegie Europe, 31 March 2020. 21. Such unconscious behaviours are hardest to tackle: https://www.bi.team/blogs/how-to-stop-touching-our-faces-in-the-wake-of-thecoronavirus/ 22. Imperial College Report 9: Impact of non-pharmaceutical interventions (NPIs) to reduce COVID-19 mortality and healthcare demand, 16 March 2020. 23. Administrative court of Guadeloupe, 28 March 2020, Syndicat UGTG, n°2000295. 24. Ido Efrati and Chaim Levinson, ‘Israeli Research Center to Announce It Developed Coronavirus Vaccine, Sources Say’, Haaretz, 18 March 2020.
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singly turning to behavioural expertise over the past decade (25). The 2019 Nobel prize in Economics has been attributed to researchers who have demonstrated the potency of seemingly modest interventions (26) to improve health and well-being using randomised controlled trials, the same experimental methodology as is recommended to test and adapt behavioural interventions. In addition, preliminary empirical evidence suggests that Europeans like ‘nudges’ when they approve of the underlying policy aim and if governments adhere to basic rules of ‘good governance of nudging’ (27) (data is as of yet lacking as to whether these ndings also apply to UK politicians) (28). Against this backdrop, why did the initial announcement of behaviourally-inspired interventions run up against strong criticism in the present context? (29)
25. The UK pioneered the move with the creation of the Behavioural Insights Team in 2010. Since then, many governments around the developed world have explored the potential of behavioural interventions. For a survey, OECD, Behavioural Insights and Public Policy: Lessons from around the world, 2017. Highlighting the promises of behavioural policy making in developing countries: World Bank, World Development Report 2015: Mind, Society, and Behavior. Within the Commission, behavioural expertise is dispensed by the Joint Research Center as well by a growing number of smaller teams within the DGs. For an EU focus: Joana Sousa Lourenço, Emanuele Ciriolo, Sara Rafael Almeida, and Xavier Troussard, Behavioural insights applied to policy: European Report 2016. 26. The Prize in Economic Sciences 2019 was awarded jointly to Abhijit Banerjee, Esther Duo and Michael Kremer for their experimental approach to alleviating global poverty, https://www.nobelprize.org/prizes/economic-sciences/2019/summary/ . On the use of randomised controlled trials for behavioural interventions, see Behavioural Insights Team with Ben Goldacre and David Torgerson, Test, Learn, Adapt: Developing Public Policy with Randomised Controlled Trials, Cabinet Ofce The Behavioural Insights Team, 2013. 27. LA Reisch, CR Sunstein, W Gwozdz, Beyond carrots and sticks: Europeans support health nudges, Food Policy, 2017; Lucia Reisch and Cass Sunstein, Trusting Nudges: Toward A Bill of Rights for Nudging, Routledge, 2019, chap. 6. 28. The shadow health secretary, Jon Ashworth is reported to have asked for reassurance that the government approach was not based too much on behavioural science. Heather Stewart and Mattha Busby, ‘Coronavirus: science chief defends UK plan from criticism’, The Guardian, 13 March 2020. 29. Tony Yates, ‘Why is the government relying on nudge theory to ght coronavirus?’, The Guardian, 13 March 2020.
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Evidence suggests that Europeans like ‘nudges’ when they approve of the underlying policy aim
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Objections to the UK response: junk behavioural science To clarify, the objection was not directed against adopting behaviourally inspired measures per se. It was about not adopting stricter social distancing measures. The critique was also not directed at the specic behavioural recommendations that were issued, such as advice on how to stop touching one’s face (30) or how best to nudge people to wash their hands effectively (31). Such recommendations cost very little and can go some way in the right direction; certainly, no one objects to them. The objection was that behavioural arguments that were presented as supporting the UK decision to wait rather than adopt drastic measures were ill-founded. The fear that ‘behavioural fatigue’ – as the UK government called it – might kick in and undermine the effectiveness of a lockdown as people would start violating the recommendation to stay home may be intuitively plausible but, behavioural scientists said, it is not a documented behavioural phenomenon (32). Not adopting a potentially life-saving lockdown based on the mere intuition that people may get tired of it simply is not good enough. It is not evidence-based behavioural policy-making. Multiple behavioural phenomena Importantly it is not clear why behavioural fatigue was singled out given that other, better documented, behavioural phenomena might – with equally unknown probability and distribution – be at work and either fuel or counteract it (33). Besides behavioural fatigue, non-compliance with social distancing measures could be the result of the optimism bias, which can lead people to believe 30. Michael Hallsworth, ‘How to stop touching our faces in the wake of the Coronavirus’, BIT Blog, 5 March 2020. 31. Michael Hallsworth, ‘Handwashing Can Stop a Virus—So Why Don’t We Do It?’, Behavioural Scientist, 4 March 2020, and Mark Egan, Abigail Mottershaw, Julia Tagliaferri, Vivek Roy-Showdury, Yihan Xu, Bright infographics & minimal text make handwashing posters most effective – result from an online experiment, , BIT Blog, 23 March 2020. 32. Ulrike Hahn, Nick Chater, David Lagnado, Magda Osman, and Nichola Raihani, ‘Why a Group of Behavioural Scientists Penned an Open Letter to the U.K. Government Questioning Its Coronavirus Response’, The Behavioural Scientist, 16 March 2020. 33. To date, the most comprehensive outlines of relevant behavioural phenomena are Lunn, P. D., Belton, C. A., Lavin, C., McGowan, F. P., Timmons, S., & Robertson, D. A. (2020), Using Behavioral Science to help ght the Coronavirus, Journal of Behavioral Public Administration, 3(1) (hereafter ‘Lunn’) and Jay J. Van Bavel et allii, Using social and behavioural science to support COVID-19 pandemic response, manuscript published online on 24 March 2020, (hereafter ‘Van Bavel’).
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Not adopting a potentially life-saving lockdown based on the mere intuition that people may get tired of it simply is not good enough
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they are less likely to acquire a disease (34). Another potential cause of non-compliance with stay-at-home exhortations is reactance, that is an appetite for doing the opposite of what we are told when we feel our freedom of choice is being limited. Clearly, the baseline level of reactance in a population is a cultural trait. Anecdotal evidence suggests, for example, that it is lower in Belgium than in France, where Parisians ocked en masse to their vacation homes the day before lockdown, elbowing their way through crowded train stations to packed TGVs. Increase or decrease in reactance from the baseline level is plausibly inuenced by how politicians and other public gures behave (35). In that regard, it is striking how Boris Johnson, Donald Trump or Emmanuel Macron undermined the ofcial message of social distancing by publicly shaking hands, attending meetings or visiting factories, while Angela Merkel and Sophie Wilmès, the Belgian Prime Minister, led by example from the beginning and expressed empathy (36). Reactance can be mitigated by targeting different sub-groups (37), such as young people, which some governments have done through social media campaigns highlighting that caring for elders is cool. Reactance can also be mitigated by invol-
ving citizens in the policy development (38). While this might prima facie seem difcult in an emergency situation, it is also true that disastrous communication causes deaths and taking a little bit of time to help ofcials grasp the mood(s) in the population might in fact be time well spent. On the other hand, behavioural fatigue might be offset by fear of the disease. Fear is known to be a powerful motivator, though, here again, we lack data that are directly relevant to the current context (39). Importantly, sound behavioural arguments in favour of enforcing lockdown and social distancing through law (rather than mere recommendations) seem to have received too little consideration. First, we all hold conicting voices in our minds: the voice of quick, intuitive emotional decisions wants us to go and see friends and the voice of reasoned decision that weighs pros and cons rationally and argumentatively will say that this is not reasonable. And we know which one usually wins (this is known as dual process theory) (40). This is why it is a good idea to take decisions to see friends or not off people’s shoulders (41). Once ‘Stay At Home’ is the law rather than a recommendation, voluntary compliance could be the result of ci-
34. Eyal Zamir and Doron Teichman, Behavioural Law and Economics, Oxford University Press, 2018, 61; Van Bavel, cited n. 34, text at n. 8. 35. Syon Bhanot, Why Are People Ignoring Expert Warnings?—Psychological Reactance, The Behavioural Scientist, 20 March 2020. An anecdotal example is a clandestine café in Belgium: Dour: un café clandestin installé dans une arrière-salle, La Libre Belgique, 29 March 2020. 36. On the effectiveness of empathy in crisis communication, see Lunn cited n.34 p. 18. 37. Peter John, How Far to Nudge?, Edward Elgar, 2018, p. 29. 38. Peter John, op. cit., p. 125. 39. David DeSteno, ‘How Fear Distorts Our Thinking About the Coronavirus’, The New York Times, 20 February 2020. 40. Daniel Kahneman, Thinking, Fast and Slow, Farrar, Straus and Giroux, 2011. 41. Alison Buttenhein, Tradeoffs Podcast, 12 March 2020.
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tizens recognising the expressive function of law (42). This may be a more reliable mechanism than reliance on a social norm where the social norm is not well-established (43).
A behavioural explanation?
Could the focus on an obscure and undocumented behavioural phenomenon (which nonetheless may well exist) be an instance of group reinforcement in the decisional process? The 2018 BIT ReIn other words, there port Behavioural Goare behavioural phenomena which go in diffeOnce ‘Stay At Home’ is the law vernment (the UK Nudge Unit manual for helrent directions and we rather than a recommendation, ping governments adsimply do not know voluntary compliance could be dress biases in decisionenough about these behavioural trade-offs the result of citizens recognising making) explains that (44). Quite possibly, indithe expressive function of law. this form of group thinking happens when peovidual differences are ple self-censor and conlarge and the net effect form to the groupof these phenomena demajority view (46). Did herd immunity emerpends at least in part on demographics. By ge as the best candidate for consensus way of illustration, a Belgian survey sugamong medical experts? Might it have regests that 25% of the population and as ceived a subtle cultural push (Brits ‘Keep much as 44% of 18 to 21-year-olds do not obcalm and carry on’)? Was the time pressure serve the social distancing measures (45). In so strong that whatever would appear to truth, behavioural and social sciences help bring the voice of behavioural insights in liformulate many hypotheses of what ne with other disciplines represented in the psychological and social levers might drive expert group got picked out? The fact that risky behaviour but no hard evidence that is there was no response to the open letter directly policy-relevant. Making ‘behafrom nonplussed behavioural scientists vioural fatigue’ uniquely salient to justify a does suggest that this was not the best the minimalist policy simply seems random. behavioural approach can offer to policyWhy then did ‘behavioural fatigue’ have the making in general or to the COVIDhonour of featuring as a policy justication? response in particular. The UK Nudge Unit
42. The hashtag #COVIDIDIOTS on Twitter illustrates naming and shaming to privately enforce the new social norms. 43. On different social norms regarding whether to wear a facemask, see Tessa Wong, Coronavirus: Why some countries wear face masks and others, BBC, 31 March 2020. 44. On behavioural trade-offs, Yuval Feldman and Orly Lobel, ‘Behavioral Tradeoffs: Beyond the Land of Nudges Spans the World of Law and Psychology’ in A. Alemanno and Anne-Lise Sibony, Nudge and the Law: A European Perspective, Hart Publishing, (2015). 45. Coronavirus: ‘44% des jeunes de 18 à 21 ans ne respecteraient pas les mesures de connement’, RTBF, 25 March 2020. 46. Michael Hallsworth, Mark Egan, Jill Rutter, Julian McCrae, Behavioural Government, The Behavioural Insights Team, 2018, https://www.bi.team/publications/behavioural-government/ (hereafter ‘Behavioural Government’).
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may have deserved a taste of its own medicine, but it should be recognised that evidenced-based policy-making is exceptionally difcult to deliver when there is precious little data and no time to gather evidence. Another explanation for the initial choice of herd immunity over early lockdown is the framing effect. In a famous experiment which uniquely resonates with the current context, Kahnemann and Tversky showed that decisions about risks are inuenced by how the choice is framed (47). In this experiment, subjects were told that a community faced an unusual Asian disease that was expected to kill 600 people. To combat the disease, the rst group could choose between two options: Option A consisted in a treatment that would ensure 200 people would be saved and Option B in a treatment that had a 33% chance of saving all 600 but a 67% chance of saving none. Option A was the clear winner (72%). A second group was presented with the same choice but framed differently. This group had to choose between Option C, which would result in only 400 people dying, and option D, characterised by a 33% chance that nobody would perish and a 67% chance that all 600 would die. This time 72% favoured option D. This is puzzling because option D is equivalent to option B. In other words, when the same choice (between a certain option and a probabilistic one with identical expected utility) people’s risk preferences were rever-
sed. In the positive framing (number of lives saved in options A and B), subjects preferred certainty, but in the negative framing (number of deaths in options C and D), they were willing to take risks. It has been shown that politicians are not immune to framing effects: they too are willing to take more risks to avoid deaths than to save lives (even though numbers make the options equivalent) (48). In the current context, we constantly hear and read about the death toll of the virus: the framing is clearly negative. The prospect theory predicts that this will lead to more risk taking. Alas, the initial decisions to delay strict social distancing – whether dressed up or not in behavioural arguments – may illustrate this prediction. We are living through a natural experiment: nation-states worldwide and throughout Europe have developed different policy responses to the COVID-19 pandemics – ranging from the locked up French and Spaniards to free-range Swedes. Within the coming months, evidence will show which strategies were most effective, and costefcient and socially accepted. But it also is an example of how governments can misuse behavioural arguments and tarnish a reputation for sound evidence-based policymaking. Those in Europe who have applied behavioural insights most effectively may not be the ones who boast about it.
47. Amos Tversky and Daniel Kahneman, The Framing of Decisions and the Psychology of Choice, Science, Vol. 211, No. 4481 (Jan. 30, 1981), pp. 453-458, https://www.jstor.org/stable/pdf/1685855.pdf. 48. Behavioural Government, p. 8.
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SPECIAL COVERAGE ON COVID-19
Highlights in the News 30 March – 3 April 2020
Regulations in force on 1 April: Immediate release of funds for COVID-19 crisis
Commission consults Member States on extension of State aid Temporary Framework
Monday 30 March
Monday 30 March
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Two legislative measures which were approved by the Council earlier in March were adopted by the Council of the EU. These measures allowing the release of funds from the EU budget to deal with the COVID-19 crisis, enter into force on 1 April 2020 as a matter of urgency.
Progress in adoption of EU Slot Regulation to help airlines during COVID-19 crisis Monday 30 March
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The Council of the EU voted on the amendment to Article 10 of the current EU Airport Slots Regulation, a proposal already approved by the European Parliament after the Commission’s proposal. The proposed amendment alleviates the obligation on airlines in respect of airport slot usage under EU law from 1 March 2020 to 24 October 2020, and applies retroactively from 23 January to 29 February 2020 for ights between the EU and China or Hong Kong.
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The European Commission sent to Member States for consultation a draft proposal to widen the scope of the State aid Temporary Framework, approved to support the economy in the context of the coronavirus outbreak. The Commission aims to have the amended Temporary Framework in place next week.
Commission Guidance on temporary restrictions of non-essential travel to the EU Monday 30 March
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The European Commission issued Guidance on the implementation of its Communication on the temporary restriction on non-essential travel to the EU. This document provides advice on the implementation of the temporary restriction at the border, facilitating transit arrangements for repatriation of EU citizens and visa issues. The Commission also published Guidelines to ensure free movement of essential workers.
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Commission Guidelines to ensure the free movement of critical workers Monday 30 March
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The European Commission issued new Guidelines to ensure that mobile workers within the EU, in particular those in essential occupations to ght the coronavirus pandemic, can reach their workplace. These guidelines identify, in a non-exhaustive fashion, a range of workers that exercise critical occupations, and for which continued free movement in the EU is deemed essential.
Disinformation in the time of COVID19: Commission’s goals and platforms actions Monday 30 March
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Google, Facebook, Twitter, Microsoft, Mozilla and trade association EDiMA (signatories of the voluntarilyapplied Code of Practice on Disinformation) took part in a meeting with the Commission, concerning an update on the spread of disinformation related to the coronavirus pandemic.
ESMA announces extended deadline for Stakeholder Group applications Monday 30 March
Coronavirus Response Investment Initiative Regulation published and entering into force on 1 April READ MORE ON EU LAW LIVE
The Coronavirus Response Investment Initiative Regulation (2020/460) was published in the Ofcial Journal. This Regulation amends the rules of the structural and investment funds so that 37 billion euros of cohesion money can be used to address serious liquidity shortages due to the sudden and signicant need for public investment, to strengthen healthcare systems, support businesses, workers and community-based services.
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Monday 30 March
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The European Commission provided guidance to help manufacturers and market surveillance authorities on the production of PPE, disinfectants and 3D printing, so that the process can be faster whilst still complying with necessary standards.
Commission website: cooperation and competition law in view of COVID-19 Monday 30 March
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The Commission has launched a specic website in order to continue providing up-to-date guidance to companies and associations concerning any uncertainty of how the EU competition rules apply to concrete cooperation initiatives with an EU dimension, which need to be put in place swiftly to tackle the coronavirus crisis.
Commission to monitor emergency measures to avoid rule of law backsliding Tuesday 31 March
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The European Securities and Markets Authority announced its decision to extend the deadline for submission of applications regarding its Securities and Markets Stakeholder Group until 9 April 2020. Successful candidates are expected to take up their roles in July 2020.
Tuesday 31 March
Commission: Guidance to increase production of urgently needed medical supplies
European Commission President von der Leyen raised grave concern over Hungary’s indenite state of emergency measures, approved yesterday by Parliament in response to the COVID-19 outbreak. She recalled that emergency measures cannot be adopted at the expense of EU’s fundamental principles and values, that they must be proportionate, and that they must not last indenitely.
EU Slot Regulation now published and will enter into force on 1 April Tuesday 31 March
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The amending EU Slot Regulation was ofcially published in the Ofcial Journal, as Regulation 2020/459 on common rules for the allocation of slots at Community airports. By this amendment, coordinators shall consider slots allocated for the period from 1 March 2020 until 24 October 2020 as having been operated by the air carrier to which they were initially allocated.
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Commission Communication on Public Procurement and COVID-19 crisis published
Waste in the time of COVID-19: Commission Guidance on cross-border shipments
Wednesday 1 April
Wednesday 1 April
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Ofcial publication was made of the Communication ‘Guidance from the European Commission on using the public procurement framework in the emergency situation related to the COVID-19 crisis’, by which the Commission claries the options and exibilities available under the EU public procurement framework for the purchase of the supplies, services, and works needed to address the crisis.
Commission approves Irish State aid for companies affected by COVID-19 Wednesday 1 April
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The European Commission decided to approve a State aid scheme notied by Ireland, with an overall budget of 200 million euros, to support the Irish economy in the context of the coronavirus outbreak. The support, in the form of repayable advances, will be available to companies that experience or expect to experience a decline in turnover of at least 15% compared to their revenue before the coronavirus outbreak in Ireland.
European Food Safety Authority: Esubmission of regulated product applications Wednesday 1 April
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EFSA published a Decision that it will be allowing applicants to submit documentation relating to applications for regulated products electronically through internet-based software. E-submission is expected to address EFSA’s reduced capacity for processing documentation submitted by ordinary mail.
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The European Commission issued a Communication clarifying that the principles relating to transport of goods apply mutatis mutandis to shipments of waste, and that, therefore waste shipments should have the benet of the use of ‘green lanes’ for goods.
ESMA Public Statement on Best Execution Reports under MiFID II in light of the COVID-19 outbreak Wednesday 1 April
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In the context of the coronavirus pandemic, the European Securities and Markets Authority issued a Public Statement clarifying certain aspects on the publication by execution venues and rms of the general best execution reports required under RTS 27 and 28 of Directive 2014/65 on markets in nancial instruments (MiFID II).
Commission proposals for unprecedented measures to mobilise all EU resources in the fight against the COVID19 crisis Thursday 2 April
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The Commission is proposing a 100 billion euro solidarity instrument (called ‘SURE’) to help workers keep their incomes and help businesses stay aoat, to redirect all available structural funds to face the pandemic, through the ‘Coronavirus Response Investment Initiative Plus’, and an EU Emergency Support Instrument for the healthcare sector.
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SRB guidance on potential operational relief measures related to COVID-19 outbreak Thursday 2 April
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The Chair of the Single Resolution Board has issued a letter to the banks within the SRB’s remit, committing to continued work on the 2020 resolution plans and issuing 2020 MREL decisions in early 2021, and highlighting what takes priority for it and for the banks, but also noting the postponing of certain less urgent matters, as a result of the coronavirus crisis.
European Parliament: Upcoming extraordinary plenary on 16-17 April on COVID-19 measures and concerns regarding Hungary Friday 3 April
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The Conference of Presidents of the European Parliament scheduled an extraordinary plenary session to keep progressing on special measures to ght the pandemic.
Commission approves Maltese, Swedish, Spanish, and German State aid schemes to support the economy in the context of COVID-19 outbreak Friday 3 April
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Several State aid schemes under the State aid Temporary Framework to support the economy in the context of the COVID-19 outbreak were approved by the European Commission.
EBA Guidelines on treatment of public and private moratoria in loan repayments under COVID-19 measures Friday 3 April
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The European Banking Authority published detailed guidance on the criteria to be fullled by legislative and non-legislative moratoria on loan repayments applied in the light of the current crisis before 30 June 2020. This follows a previous Statement on the application of the prudential framework regarding default, forbearance and IFRS9 given the COVID-19 measures.
ECB extends review of its monetary policy strategy until mid-2021 due to COVID-19 Friday 3 April
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In a Statement the European Central Bank announced that the review of its monetary policy strategy will take place next year. This decision is based on the need for the ECB and national central banks to focus on addressing the challenges raised by the COVID-19 pandemic. Several events, inter alia the annual ECB Forum on Central Banking, have been postponed as well.
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SPECIAL COVERAGE ON COVID-19
This Week’s Analyses and Op-Eds 30 March to 3 April 2020
Export, import and EU circulation of protective and medical equipment in the context of COVID-19 outbreak By Darya Budova
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Analysis on export authorisations for certain personal protective equipment and the countries they don’t apply to, EU law measures to exempt VAT and import duties on the import of protective and medical equipment, and the EU’s actions urging Member States to lift, or make proportionate and non-discriminatory, unilateral restrictions on the export of goods, border controls and even conscation of certain materials at borders within the EU.
The challenges of COVID-19 on the scope of the freedom of circulation of capital (Article 63 TFEU) By Ricardo García Antón
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Op-Ed on the scope of the free movement of capital, and the issues and challenges that lie ahead in the face of COVID-19, including a look at foreign direct investment and the screening mechanism to prevent a foreign investor from acquiring or taking control over a company that could undermine Europe’s security or public order, a derogation from the freedom of circulation of capital in Article 63 TFEU on the grounds of public policy or public security.
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Preparing for Safe and Sensible Economic Recovery! One Daunting Thought and Three ‘Simple’ Strategies to Bridge European and Italian Action? By Marco Lamandini, Guido Ottolenghi and David Ramos Muñoz READ MORE ON EU LAW LIVE
Op-Ed calling for a speedy EU coordinated and nanced effort including concrete suggestions to support the equity of businesses; to provide a last instance market maker for households; to support the process of rapid consolidation of national banking systems to better withstand the shocks that may materialise; rebalancing of the nancial system structure away from debt and towards equity; extrapolating the logic of the collateralliquidity link from the wholesale to the retail level; and putting the ‘macro’ structure of the nancial system at the service of the needs of the individual citizens.
A Moment of Truth for the EU: A Proposal for a State Aid Solidarity Fund By Alfonso Lamadrid de Pablo and José Luis Buendía READ MORE ON EU LAW LIVE
Op-Ed on how State aid policy could better contribute to the issues faced in the context of the COVID-19 outbreak, raising the issue of how the current Temporary Framework on State aid practically benets the more deep-pocketed Member States, and how massive capital injections by only some Member States could lead to distortions of competition. Proposals are made to amend the Temporary Framework to make State aid conditional on the provisions of compensation for competitive distortions that may arise as a result.
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More Highlights in the News this week 30 March to 3 April 2020 Declaration by the High Representative on Russia’s decision to list the European Endowment for Democracy as an ‘undesirable organisation’ Monday 30 March
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The High Representative of the EU for Foreign Affairs and Security Policy issued a Declaration on behalf of the EU rejecting the Russian authorities’ decision to include the European Endowment for Democracy on their list of ‘undesirable organisations’. This values-based organisation is the 20th foreign group that faces limitations in that country.
Fundamental Rights Agency Report on the fundamental rights of migrant children Monday 30 March
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The EU Agency for Fundamental Rights made public its ‘Children in migration in 2019’ which assesses the level of protection of migrant children’s fundamental rights as they enter and stay in the EU or are returned to their home countries, as well as the main challenges to their fundamental rights that must be taken into account by EU Member States legal and practical approaches and responses to migrants and refugees.
ECtHR: Portuguese Constitutional Court breaches right of access to a court Tuesday 31 March
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By its judgment in Dos Santos Calado and Others v. Portugal (application nos. 55997/14, 68143/16, 78841/16 and 3706/17), the European Court of Human Rights ruled that the excessive formalism with which the Constitutional Court of Portugal applied the legislative provisions forming the basis for its jurisdiction to hear appeals breached Article 6(1) of the European Convention of Human Rights.
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CJEU to clarify EU rules on exceptions to transparency obligations for prevention of financial crime Monday 30 March
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Ofcial publication was made of the request for a preliminary ruling (C-37/20) lodged by the District Court of Luxembourg (Tribunal d’arrondissement) in the case WM v Luxembourg Business Registers. This request comprises several questions regarding the interpretation of Article 30(9) of Directive 2015/849 on the prevention of the use of the nancial system for the purposes of money laundering or terrorist nancing.
EU-Vietnam Trade and Investment Agreement: Council’s final approval Monday 30 March
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The Council gave its nal decision approving the EUVietnam Trade Agreement and Investment Agreement, which the Commission has described as the ‘most comprehensive trade agreement between the EU and a developing country’.
Official publication of Council Decision establishing Operation IRINI for Libya Wednesday 1 April
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Council Decision (CFSP) 2020/472 on a European Union military operation in the Mediterranean (EUNAVFOR MED IRINI) was subject to ofcial publication. The operation will last for a year, from 31 March 2020 to 31 March 2021.
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Council of Europe launches updated free e-learning course on ECHR and ECtHR
CJEU rules that Amazon did not breach trademark rights by stocking goods of third parties
Wednesday 1 April
Thursday 2 April
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The Council of Europe launched an updated version of its free e-learning course on the European Convention of Human Rights (ECHR) and the European Court of Human Rights (ECtHR). The course, which is publicly available on the HELP online platform, consists of three substantive modules, including for the rst time an entire module on the execution of the judgments of the ECtHR.
Amazon’s storage of bottles of ‘Davidoff Hot Water’ perfume offered for sale by third-party sellers on Amazon-Marketplace, although those bottles were not put on the EU market with the distributor’s consent, was not deemed by the Court of Justice to be an infringement of trademark rights, as long as they were not offered for sale, in Coty Germany (C-567/18).
CJEU: EEA Nationals can rely on EU Law to avoid extradition to a third country from an EU Member State
AG Bobek: the applicability of the Services Directive to the short-term letting of accommodation through peer-topeer platforms
Thursday 2 April
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In I.N. v. Ruska Federacija (C-897/19 PPU), the Court of Justice has ruled on the special relationship between EU and EEA Law, nding that an EEA national who has excercised EU law rights can rely on the EEA Agreement, as part of EU Law, to avoid extradition by Croatian courts to a third country, and that the principle of non-discrimination on the grounds of nationality applies.
Thursday 2 April
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National law requiring authorisation in order to be able to let out accommodation for residential use on a repeated basis, for short periods, and to a transient clientele that does not take up residence there, was found in Advocate General Bobek’s Opinion in Cali Apartments (C724/18 and C-727/18) to be a situation covered by the Services Directive, and as constituting a scheme under its Articles 9 to 13. Such authorisation could be justied by the public interest objective of tackling a shortage of long-term housing and has to be in line with the principle of proportionality.
CJEU: Failure to apply the temporary mechanism for relocation of applicants for international protection brea- Grand Chamber judgment on the poches EU law wers of courts in host Member States reThursday 2 April READ MORE ON EU LAW LIVE garding fraudulent E 101 certificates for flight and cabin crew The Court of Justice upheld the Commission’s actions for failure to full obligations under EU law against Poland, Hungary and the Czech Republic (C-715/17, C718/17 and C-719/17), due to their refusal to comply with the temporary mechanism for the relocation of applicants for international protection.
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Friday 3 April
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The Court of Justice gave its ruling in the Grand Chamber case Vueling Airlines (C-37/18) on the interpretation of the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and its procedure.
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More Analyses and Op-Eds this week 30 March to 3 April 2020 Saving Appeals in WTO Dispute Settlement: The Multi-Party Interim Appeal Arbitration Arrangement Pursuant to Article 25 of the DSU By Holger Hestermeyer
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Op-Ed on a new multi-party interim appeal arbitration arrangement, as a stop-gap measure to replace the WTO Appellate Body, due to the largest crisis the WTO has had to face since its establishment in 1995 - the inability to hear new cases sens its membership dropped below the numbers necessary to rule on the case (due to the blocking of appointments by the US since 2017).
The establishment of a new EU Common Security and Defence Policy (CSDP) mission: Operation Irini By Graham Butler
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Op-Ed on the establishment of Operation Irini to replace Operation Sophia, a Common Security and Defence Policy mission primarily aiming to enforce a UN Security Council Resolution imposing a Libyan arms embargo. The Operation includes inspecting vessels in the Mediterranean that are suspected, upon reasonable grounds, in engaging in the seizing and disposal (such as through destruction, rendering inoperable, storage or transferring to a State other than the originating or destination States for disposal) of unsecured arms and ammunition.
The staff case that you will never forget! The review judgment of the Court in Simpson and HG By Janek Nowak
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Op-Ed on the creation of a new remedy on the basis of Article 47 of the Charter, rule of law issues regarding the appointment of EU judges, and the power of appeal courts to review ex ofcio decisions given by a formation of a lower court on account of irregularities in the appointment procedure of judges sitting in that formation, all against the backdrop of a still undigested reform to double the number of judges at the General Court.
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Library - Book Review
By Gaspare Fiengo
GIUSEPPE TESAURO (EDS. P. DE PASQUALE, F. FERRARO)
Manuale di diritto dell’Unione Europea
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Gaspare Fiengo looks at the EU Law Handbook of Professor Giuseppe Tesauro, edited by P. De Pasquale and F. Ferraro, nding that it offers a clear picture of the EU’s legal system, which includes the historical evolution of the EU, the institutional framework and division of competences between the EU and the Member States, and notes that it is very up-to-date in the case-law it covers.
Library - Book Review
By Alessandra Donati
MARIA WEIMER
Risk regulation in the internal market: Lessons from agricultural biotechnology
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Alessandra Donati provides this review of a book which she nds is an in-depth inquiry into EU regulation of risks surrounded by technoscientic complexity, uncertainty, and societal contestation, which uses the example of agricultural biotechnology - the use of genetic engineering or genetically modied organisms (GMO) in modern agriculture. She notes that the book touches upon some fundamental questions about the relationship between, on the one hand, science, democratic politics, and law, and on the other hand, EU and national authority.
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