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STREAMING OF HEARINGS: A TOUGH CALL FOR THE COURT OF JUSTICE Michal Kianička
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Streaming of hearings: A tough call for the Court of Justice 1
allowed the broader public to watch its hearings in full through video on the internet, or even to follow them in real-time.
I. Setting the scene The law and the courts cannot (and should not) escape the impact of modern technologies that signicantly inuence our daily lives. The same goes for the Court of Justice of the European Union (CJEU). Taking only its external communication dimension and leaving aside other solutions, such as eCuria or its internal systems and databases, the Court is quite far, using a whole palette of innovative tools. Its website went online no later than 1998. Since then it has been upgraded several times and is now a proper and state-of-the-art virtual seat. In 2013, the Court launched its Twitter account (both in French and English) and its own mobile app called CVRIA, available for Android and iOS. Following that, it set up its own YouTube channel in 2017 and began to post on LinkedIn in the second half of 2019.
Providing neither streaming nor videos-ondemand of its hearings (2), the CJEU has not followed the example of other international fora yet. However, things may already have begun to shift. The Court has been reecting on the matter internally: it also ran a semipublic test and streamed the delivery of its judgments and opinions in December 2019. Recently, the streaming of hearings by the European Union’s top court was once again supported by highly ranked legal professionals. This article wishes to contribute to the respective discussion (3). After giving a few examples on the experience with lming, recording and streaming by and from courts, it discusses some of the arguments in favour and against. Just before the concluding remarks, a short excursus explores whether the COVID-19 outbreak has taught us any relevant lesson in this regard.
Having listed all the innovations which the Court uses to provide information about its activities, one is still missing: it has not yet
1. Michal Kianička was a member of the Slovak EU litigation team from 2010 to 2020. 2. Despite my passion for modern technologies, I admit that I was struggling a bit with the terminology, but not because I could not understand the concepts behind them. The term broadly used for providing live broadcasts on the internet is ‘webcasting’. Such an extensive denition disturbs me, since one could, in my view, legitimately assume that a ‘webcast’ is nothing more than a video-counterpart to a ‘podcast’, an audio-le available on the internet and not broadcasted live. It seems however that it might not be a lost battle yet. The Oxford Advanced Learner's Dictionary itself, after dening the ‘webcast’ as a “a live broadcast that is sent out on the internet” provides the following example sentence: “We were able to watch a live webcast of the eclipse.” In this way, it required supplementing the term ‘webcast’ with ‘live’, thus making it ‘live live broadcast’. After some thought, I decided to refer to ‘streaming’ in this article for the live internet video broadcasting enabling a hearing to be followed in real-time, or at most with a reasonable and short delay. Conversely, recordings made available on the internet in an archive only after the hearing ended, be it on the very same day or a couple of years later, are called ‘videos-on-demand’.
3. I wish to thank those who helped me while gathering relevant information – Alexandra Dubová, Ana Koprivica Harvey, Simon Brandon, Graham Butler, Juraj Palúš and Bernhard Werner. I am particularly thankful for valuable insights and data to Patrick Titiun from the European Court of Human Rights and William Valasidis from the CJEU, as well as to Daniel Sarmiento for the ‘kick-start’ and a lot of food for thought and to Anjum Shabbir for the feedback on the text.
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nal staff of the ECtHR, or rather the Council of Europe. So far, 266 hearings held in Strasbourg from 2007 until today can be watched on the ECtHR’s website. The total number of views across all webcasts for the year of 2019 was 96,779. When J.-P. Costa, the then president of the ECtHR launched the project back in 2007, he described it as “a signicant step forward in making the Court’s activities more visible and accessible”. Today, the ECtHR still sees it as a positive and an extremely important activity.
II.What about the others? Several international and domestic courts and tribunals stream their hearings and/or provide videos-on-demand on their websites or via third party services. A. Sister court: the ECtHR The European Court of Human Rights (ECtHR) has lmed all public hearings it has held since 2007. After conducting a successful pilot in 2002, the ECtHR asked for the budgetary resources early on in 2004. The hearings are not streamed, but they are lmed in full, edited if necessary and then made available as videos-on-demand. Initially, this approach was adopted out of caution, usually and logically related to the introduction of any major innovation into practice. After gaining some experience, the ECtHR is not planning to complement the videos-on-demand by streaming. Although it is very rare, from time to time certain segments of the recordings must still be cut out due to incidents occurring during the hearings. Since the beginning, the project has been fully nanced by the Irish Government. The videos are prepared by the inter-
B. Other international fora A trendsetter among the international courts apparently was the International Criminal Tribunal for the former Yugoslavia (‘the ICTY’). It had used audio-visual equipment in its courtrooms since 1996 and covered its hearings ‘gavel-to-gavel’. The recordings are still available through the tribunal’s legacy website and the respective YouTube channel. In 2000, after 18 months of research Paul Mason compiled the ‘Report on the impact of cameras at the International Criminal Tribunal for the former Yugoslavia‘ (see also the following contribution discussing the principal ndings of the report).
266 hearings held in Strasbourg from 2007 until today can be watched on the ECtHR’s website
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The phenomenon of streaming has also reaIt was reported that there were six remote ched the investment arbitration sector. The controlled cameras in each courtroom that rst hearing in arbitration between a state were not able to zoom in on participants. and a non-state actor was probably streamed The pictures were selected by the ICTY’s in April 2009 by the Permanent Court of own audio-visual staff following strict insArbitration in the Abyei Arbitration . tructions, ensuring a full, balanced, fair and Although the transcripts of the hearing are accurate account of the public hearings. The still part of the ofcial documentation, only live stream had a delay of 30 minutes, exvideo recordings of the nal award delivery cept for the initial appearances and delivery from July 2009 remain listed and available of judgments, where there was no delay. A for download. The International Centre for widely reported incident showed the downSettlement of Investment Disputes (‘the side of this practice. In November 2017, the ICSID’) streamed its rst hearing in May Appeals Chamber of the ICTY conrmed 2010 in the case Pac Rim Cayman LLC v. Rethe conviction of S. Praljak and afrmed his public of El Salvador (ARB/09/12). The sentence of 20 years of imprisonment. ICSID Youtube channel Immediately after, he features videos-oncommitted suicide in demand of that hearing, the courtroom by drinThe rules and practices for filming as well as of hearings in king poison. and recording court hearings vary other cases. significantly not only worldwide The International Court but also across Europe Other international of Justice (‘the ICJ’) decourts and tribunals alcided to use streaming so had and have expefor the rst time in rience on cameras and in streaming, such as 2004, during the advisory opinion proceethe International Criminal Tribunal for dings about the legal consequences of the Rwanda, which had videotaped its trials sinconstruction of a wall in the occupied Palesce 1999 - the material is available through tinian territory (‘the Israeli Wall case’). The the Judicial Records and Archives Database ICJ broadcasted live and in full the hearings run by the United Nations International Resiand the reading of its opinion. It decided to dual Mechanism for Criminal Tribunals; the do so “in response to the exceptional inteInter-American Commission of Human rest shown by the general public, civil soRights, which began to stream its hearings ciety organizations and the media worldwiin 2007; and the International Criminal de, and in view of the Court’s very limited Court (see its media guide). seating space for the public and media representatives at the Peace Palace in The HaC. Domestic courts in and outside Europe gue” (annual report 2003-2004, paragraph 266). Since 2009, the ICJ has streamed its The rules and practices for lming and republic sittings and has provided videos-oncording court hearings vary signicantly demand of them on its website and through not only worldwide but also across Europe. the United Nations Web TV.
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Below are some examples at least in broad terms. Of course, each of the national regimes mentioned below could be analysed more deeply (4). 1) European fora Some European countries, not limited to the European Union, are quite progressive regarding cameras in the courtroom, whereas others stay reluctant. The Netherlands, for instance, is very liberal. Its Press Guidelines 2013 allow journalists to lm and record the court hearings, limited only to certain parts in criminal matters. Even ‘live-tweeting’ is allowed. Direct broadcasting is possible too, though conditional upon prior request and permission. The guidelines set clear limits, such as who may be shown and how, and allow for deviations under exceptional circumstances. All the information is available, even in English, at www.rechtspraak.nl. Since 2014, Ukraine has allowed its court sessions to be lmed and recorded, including for live broadcast. Only the latter requires prior authorisation of the judge. In 2015, the nongovernmental organisation Open Ukraine launched a project called ‘Open Court’ consisting in lming court proceedings. Two years later, the same body began with 360-degree video recording of court hearings. The videos-on-demand are available on YouTube. In the United Kingdom, the Supreme Court has used cameras since its inauguration in 2009 and its proceedings were televised and even streamed. Later, it launched its own streaming service in 2014 and video-on-demand archive in 2015. It even serves as a prominent reference to a major electronics producer. As for the lower courts, photography in courts had been banned in England and Wales since 1925, which was understood
4. See for instance J. Jaconelli, Open Justice: A Critique of the Public Trial, 2002; M. W. Huff, Justiz und Öffentlichkeit, 1996; or A. Koprivica, Revisiting the Principle of Public Hearings in the Light of the Ongoing Reform in Germany: Much Ado about Nothing?, in S. Glavora, T. Garber, (eds), Grundsätze des Zivilverfahrensrechts auf dem Prüfstand: 5. Österreichische Assistententagung zum Zivil- und Zivilverfahrensrecht der Karl-Franzens-Universität Graz, 2017.
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lming in Scottish courts, including live broadcasting of some cases.
as covering videos as well. In 2004, the Court of Appeal ran a seven-week long pilot project, lming selected criminal and civil trials. In 2013, the ban from 1925 was eventually repealed. Very soon after, the Court of Appeal started to TV-broadcast its hearings. In 2016, the Ministry of Justice proposed a pilot scheme for the Crown courts, which comprised lming but not broadcasting of sentencing remarks made by senior judges at eight courts. In November 2018, the Court of Appeal started streaming its hearings in selected cases in civil matters. As announced just about a month ago, family hearings should follow.
The situation in Germany is rather restrained. Since 1964, lming and recording during the ofcial part of a court hearing was inadmissible. In 1995 and 1999, after being banned from lming hearings in two highprole cases, the private television company n-tv brought two constitutional complaints claiming that the rule infringed freedom of the press. In 2001, the Federal Constitutional Court ultimately rejected both complaints, conrming the constitutionality of the regulation, although three judges submitted a dissenting opinion.
The 1925 ban never applied to Scotland, where the Practice Directions issued by Lord President Hope in 1992 cleared the way for lming, recording and even broadcasting court hearings. Though the rules, available as Appendix III in this consultation document from 2013, set some hurdles, such as no broadcasting before the end of the trial or the need to obtain consent from all those who were lmed. The permission was to be given case-by-case upon request. Here the infamous Lockerbie case is worth mentioning. Whereas the BBC was not allowed to stream the initial trial, later, it was able to broadcast the subsequent appeal proceedings. Hope’s Practice Directions were revised by Lord President Hamilton in 2012. In the same year, the Scottish head of judiciary, Lord Gill, appointed a judicially led group to review the policy on recording and broadcasting of court proceedings and use of live, text-based communications from court. Three years later, he was presented with the report and declared he would accept all the recommendations allowing for
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Remarkably, the Federal Constitutional Court went its own way regarding the access of cameras to its hearing premises. In 1993, its second senate permitted televising to some extent, followed by a plenary order from 1995 allowing lming of the delivery of judgments. Some argued it only used the legal authorisation to apply the general regulation where appropriate, others thought it had done so in breach of law. Be as it may, the German legislator ultimately explicitly exempted the Federal Constitutional Court from the 1964 prohibition in 1997. Twenty years later, the general embargo was moderately loosened in three respects, though leaving lming (including streaming) of hearings as such prohibited. This is also the case for the Federal Constitutional Court. In France, the situation is even more paradoxical as it once was in Germany. The French Conseil Constitutionnel has been streaming
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audio from a hearing, the latter requiring the judge’s permission. By contrast, lming (and thus also streaming) is forbidden. There are two more things worth mentioning. First, showing judges’ faces without their permission is categorically banned under Slovak law. Second, the law on certain emergency measures related to COVID-19 among other things includes rules that if a state of emergency has been declared, the courts may exclude the public from a hearing on the grounds of protection of health. If they do so, they must record the audio of the hearing and after the hearing, they must grant access to the recording to anyone who requests it.
its hearings since 2010, when it held its rst public hearing, and has its own DailyMotion channel. Nonetheless, it decided in December 2019 that the banning of still pictures, videos and sound recordings of court hearings imposed in 1954 is constitutional. Anyway, the journalists can report live from the courtroom, using for instance social media, similarly as in the Netherlands. In my home country, Slovakia, the legal framework is fragmented and ambivalent. When adjudicating in civil, administrative and criminal matters, the courts must, for the casele, record the audio of procedural acts, including hearings. The law also explicitly enables the parties to record the audio of a civil or administrative court hearing, obliging them to notify the court. The judge may also permit an audio broadcast, as well as a video recording and streaming in civil and administrative matters. In criminal proceedings, anyone can record and broadcast
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A live audio broadcast in Slovakia, probably the rst, covered the prominent criminal trial concerning the forgery of promissory notes worth EUR 69 million. The court later revoked its approval without reason. It could have something to do with illegal l-
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ce 1 October 2013 on the High Court’s website to improve public access to its hearings. It decided to do so having regard to the nature of its jurisdiction and its decision was not intended to set any precedent for other courts. Initially, it held it likely that the recordings would be available a few business days after hearings because of a vetting process. The Supreme Court of Victoria also streams some of its hearings or judgments.
ming and showing judges’ faces. The same court (though with other judges) allowed audio live broadcast in the criminal proceedings concerning the murder of the Slovak investigative journalist Ján Kuciak and his ancée, archaeologist Martina Kušnírová. 2) Courts outside Europe In the United States, some courts stream their hearings or make videos-on-demand thereof, others do not. Whereas the judiciary of the individual states seems to be quite progressive, the federal courts remain reluctant. Some courts provide the service in cooperation with universities. An example is the ‘Gavel to Gavel’ video portal providing material from the Florida Supreme Court. It is run by a television channel controlled by the Florida State University. In fact, Florida Supreme Court is a pioneer in active internet use. In 1994, it launched the rst internet judicial website in the United States, and in 1997, it became the world’s rst court streaming its hearing.
Other countries have experience in streaming judicial proceedings, among them Canada, India, the Philippines, and even China.
III. Debate Technological progress catalysed the debate about the use of technologies in the eld of law, including dispute settlement. The relevant research has also dealt with cameras in courts and covers streaming of hearings or providing videos-on-demand of them too. (5) As shown above, some domestic and international judicial organs have implemented it, others have not.
Brazil has not only been progressive, but to a certain extent an extreme. Since 2002, the Brazilian Supreme Federal Court has operated its own television channel and radio station. They broadcast, among other related programmes, judicial and administrative hearings, including deliberations! Both can be accessed via the internet and some of the hearings are available as videos-on-demand on YouTube.
D. Making the case to the CJEU The call to the highest judicial organ of the European Union to introduce streaming of its hearings is not new. For example, the idea was brought up when discussing the openness of the CJEU and room for improvement in this area (6). As already mentioned, the appeal was reinforced very recently.
The High Court of Australia has provided videos-on-demand of Full Court hearings sin-
5. See for instance and apart from those already cited above: B. Hess, A. Koprivica Harvey, (eds), Open Justice. The Role of Courts in a Democratic Society, 2018; S. Plagakis, Webcasting: A tool to increase transparency in judicial proceedings, in J. Nakagawa, (ed), Transparency in International Trade and Investment Dispute Settlement, 2013; F. Leishman, P. Mason, Policing and the Media, 2003; all including a plethora of further references.
6. A. Alemanno, O. Stefan, Openness at the Court of Justice of the European Union: Toppling a Taboo, Common Market Law Review 51, 2014.
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The ability to watch the proceedings online would result in increased awareness and accessibility, as well as transparency, accountability and, through all this, greater public confidence
On 12 February 2020, the Court of Justice held a farewell ceremony for Christopher Vajda, the British judge who had held the post in Luxembourg since October 2012 and who was forced to leave the Court of Justice due to Brexit. In his speech that evening, Judge Vajda made one single suggestion concerning the further functioning of the Court of Justice. He said that the time had come for the Court of Justice to embrace streaming. In his own words: “This would enable many more people to see the Court in action and bring the Court closer to the individual citizen. For my part, I look forward to the day when I can watch my former colleagues in action from the comfort of a sofa anywhere in the world.”
which is called ‘a simple reform’. First, it would bring the European Union closer to its citizens and to its judges and lawyers. It would also enhance openness of the Court and turn into reality the default principle under the rule of law, namely that the hearings are public. Second, it might help to prevent logistical problems such as those which the Court had to face in relation to certain hearings in high-prole cases like Microsoft (T201/04) or the People’s Mojahedin Organization of Iran (T-284/08 and C-27/09 P). Third, the letter stresses the minimal costs and the positive environmental effect of the streaming. It would result in reduction of emissions, as the relevant stakeholders will not have to travel to Luxembourg.
One day earlier, Alberto Alemanno and Nicolas Petit published an open letter to Koen Lenaerts, the President of the Court of Justice, asking for the European Union courts to stream their public hearings. They also invited supporters of the idea to sign up to the letter. So far, more than 400 academics and legal practitioners have joined the petition. The letter contains the following arguments in favour of the introduction of streaming,
The overall debate about the streaming and videos-on-demand of court hearings includes some of these, as well as other arguments in favour. The public and the media have the right to know, see and report. The ability to watch the proceedings online would result in increased awareness and accessibility, as well as transparency, accountability and, through all this, greater public condence. Further, the availability of the
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material would enable the media to report more accurately and the stakeholders to self-evaluate themselves and/or gain valuable insights. Next, it could serve educational purposes as authentic teaching material. Not least by putting some ‘positive’ pressure on the stakeholders, it would also contribute to the proper administration of justice. Finally, apart from having a positive environmental impact, the possibility to remove the need for actual travel to the court would lead to time and cost savings. Those courts or judiciaries that have already embraced streaming were led by similar motives. Just for the ease of reference, the videos-on-demand published by the ECtHR were supposed to make it more visible and accessible. In the United Kingdom, the authorities referred to the aim of increasing public condence, whereas in Australia, public access was mentioned. In addition to that, Paul Mason found that the cameras in the ICTY contributed to the proper administration of justice. Lastly, practical space considerations were among the reasons why the ICJ decided to stream the Israeli Wall case back in 2004. The space available here does not allow me to analyse in detail every argument in favour or against. Nevertheless, especially against the backdrop of proclaimed positives of streaming and videos-on-demand of court hearings, I wish to make several comments. E. Nature of the issue What is the actual nature of the issue? The arguments enumerated are more of a philosophical than of a legal nature. Some basic
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legal principles are relevant, such as the right to a public hearing as one of the components of the right to a fair trial and the principle of effective legal protection (Articles 6 and 13 ECHR and Article 47 of the Charter) or the principle of openness (Article 15 TFEU). Despite that, the question is not whether the CJEU must or is legally obliged to enhance the already (and indisputably) existing publicity of its hearings by streaming them. It is rather whether it is desirable, whether it should do so. There is no specic legal provision embodying an obligation of the Court to stream its hearings or to provide videos-on-demand thereof. Neither does there seem to be any accusations that by not streaming its hearings, the Court breached any legal obligation. In fact, the streaming may rather require changes in the Court’s procedural legal framework. Thus, it is a question of (legal) policy (‘Rechtspolitik’). Its solution involves a reconciliation and balancing of (possibly contradictory) interests, especially the possible impact on the delivery of justice. Would the streaming advance the latter and at what (not only nancial) cost? Or would it rather jeopardise it? F. On the advantages Some of the declared advantages of streaming and videos-on-demand of court hearings are worth a closer look. First, in terms of costs, it is important to differentiate between the initial investment and the annual costs. To begin with the former, all courtrooms of the CJEU have fully audio-visually equipped. The equipment is suitable for streaming and recording videos-on-demand of the hearings, proven
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Second, the environmental and logistical arguments assume that as soon as the people will be able to watch the hearing online, they will no longer travel to Luxembourg. This assumption may be proven wrong. They may still prefer personal presence in the courtroom over watching a hearing on the screen. It still makes a difference after all. Similarly, people have not stopped going to concerts only because they are available online - sometimes even live. Apart from that, certain members of the public may want to attend a specic hearing, thinking they may through their presence inuence the decision. At the ECtHR, the availability of videos-on-demand has not diminished the number of people wishing to attend a hearing in Strasbourg.
not only by the recent test, but also by the streaming of hearings to the press-room within the Court, the streaming of events being not purely judicial and the occasional videos-on-demand of the delivery of judgments and opinions, available via Europe by Satellite. Having this equipment would reduce the launching costs for the streaming of hearings. However, other infrastructure would probably still require an upgrade, such as server or storage capacity, and additional services from external contractors also might be necessary. In 2004, the ECtHR estimated the one-off investment that was needed to be EUR 600,000. The annual costs would mainly depend on the costs per hearing and number of streamed hearings. In 2004, the ECtHR expected EUR 120,000 for 30 to 40 hearings per year. By contrast, the estimated costs per year between 2018 and 2021 were about EUR 80,000 (7), so roughly EUR 5,800 per hearing with just two audio channels. Compared to the CJEU, its two courts held 682 hearings in 2018. Simple multiplying with the above-mentioned gure per hearing brings the amount to almost EUR 4 million. Even streaming of only a selection of 100 to 150 hearings per year would cost between EUR 580,000 and EUR 870,000. These estimates do not consider the multilingualism of the Court in Luxembourg. By comparison, the budget of the CJEU was EUR 410 million for 2018 and EUR 429,5 million for 2019 and is 436,6 million for 2020, while the Commission insists on limiting the increase in administrative expenditures by the ination rate only.
Further, the environmental argument relies on the emissions’ drop due to reduced travel. Its basic logic is not awed, because the carbon footprint of traveling is substantial. Looking at my car, it produces about 150g of CO2 per kilometre. According to the Carbon Emissions Calculator by the International Civil Aviation Organization, a return ight between Vienna and Luxembourg causes approximately 185.8 kg of carbon dioxide equivalent (‘CO2e’) per passenger. However, even if someone does not, for instance, take a certain ight, it might still be operated. Recently, because of the coronavirusoutbreak, we have experienced airlines ying empty planes to keep their slots, leading the European Commission to propose amendments to the EU ‘Slots Regulation’ in order to ease the impact of the actual crisis. Besides that, emissions from other sources, like internet trafc, should also be conside-
7. The Council of Europe Programme and Budget for 2018 and 2019 mentions EUR 81,700 in resources have already been secured and quanties the two-year needs at EUR 80,800. The same document covering 2020 and 2021 quanties the biannual needs at EUR 163,000, mentioning that no reces have already been secured.
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red. Watching videos on the internet is not emission-free. For instance, YouTube's annual carbon footprint was estimated at about 10 megatons of CO2e, which is roughly the output of a city the size of Glasgow. Third, indeed, probably not everyone can afford the trip to Luxembourg. Therefore, streaming would enhance accessibility. The ECtHR stated in 2004 that some applicants were not able to attend the hearing even in their own case. It remains unclear whether that was caused by nancial or by other restraints. In any event, the hearings of the CJEU are in principle open to the public. It is prescribed by Article 31 of the Statute of the CJEU and carried out in practice. In 2018, the Court had 20,000 visitors, including professionals, journalists, students, and even citizens. Even some agents of Member States attend hearings on personal visits, if they want to show the Court to their families. Saying that streaming would make the Court public is oversimplied, and thus exaggerated. Fourth, it is true that the ability of the media to watch the hearings online could facilitate media coverage and result in more accurate reporting. They would not have to rely on secondary resources and could check their notes or other material against the stream or video-on-demand. On the other hand, it may not always be the case. Certain media may yield to the temptation to sensationalise or even manipulate, and the recordings could serve them as an additional and indeed powerful tool. There have already been media campaigns against the judiciary. One took place after the Brexit-related judgment of the High Court in November 2016 in the so-called Miller I case and was criticised by legal academics as being not only wrong, but also dangerous. Fifth, no doubt the European Union and its institutions should be brought closer to the citizens, especially when extremism is gaining strength throughout Europe and winning parliament seats, without offering any real solutions. The European Union project is indispensable for peace and prosperity in Europe and its citizens should learn it. In the light of this, they should also learn how vital the activity of the CJEU is for their everyday lives.
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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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should be recalled. Do we have independent courts for justice to be done as the law dictates, or for the public to be made happy? And if the public is unhappy, does that automatically mean a loss of legitimacy of the court? Apart from that, sometimes the (general) public may show an interest in questions which are not of genuine public concern, and vice-versa, it may not be interested in those that are important, just because they are not sensational enough (8). Second, the public interest apparently varies. Christopher Vajda mentioned signicant numbers of views and connection requests concerning the two Miller cases. By contrast, the numAs the President of the Court of Justice cober of views of the videos-on-demand of the rrectly stated in his address on the occasion ECtHR mentioned aboof the solemn undertave is less signicant, esking given by the new pecially compared to European Commission The CJEU could make streaming in January 2020, all Eu- and videos-on-demand accessible the 27 million visits to ropean institutions, whionly to the relevant public, such t h e w e b s i t e o f t h e ECtHR recalled by it in le emphasizing to citias legal professionals, its budget request from zens the added value of journalists, law students and 2004. It is thus advisathe European Union, ble to carry out a proper should use a language other relevant persons cost-benet analysis in that is ‘simple and diadvance, ideally based rect’. By way of comon some data. Are the clicks worth the effort parison, debates in the Court are extremely and money? demanding from a professional and technical point of view. It is a different league, Considering all the above and thinking of a even for lawyers. Most non-lawyers simply possible way out, the CJEU could make would not be able to follow it properly, not streaming and videos-on-demand accessibecause they are not smart enough, but ble only to the relevant public, such as the lesimply because it is not their eld of expertigal professionals, journalists, law students se. and other relevant persons. Some of them could register directly with the CJEU. On Finally, the public interest and the idea of acthe one hand, it would probably cost more. countability warrant two comments. First, On the other, the CJEU would know exactly as for accountability, once again the reacthe maximum number of potential simultation of the media to the Miller I judgment of neous connections, which again could result the High Court in the United Kingdom Nevertheless, streaming the hearings of the Court might not be the appropriate tool. It would be better if those in the know would do their best to spread the word. It is primarily for the Press and Information Unit of the Court, which is doing its part of the job very well. Let the Court tweet, youtube or even instagram if it helps! We should not forget though, that it is not a small amount of responsibility that lies with us, the legal practitioners dealing with the agenda of the Court. We should rapturously discuss and debate over a glass of beer with family and friends.
8. J. Jaconelli, Open Justice: A Critique of the Public Trial, 2002, p. 337.
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of the proceedings and the administration of justice.
in saving some money. For the students, their universities could act as intermediaries for the signal and assist with its spreading, which could also potentially save some costs.
Some of the arguments mentioned have little to no relevance for the proceedings before the CJEU, whereas others remain pertinent. The risk of possible interference with the rights of individuals would in particular have to be analysed in detail: to what extent it exists, whom it concerns and whether it could be offset by appropriate safeguards, keeping in mind that ‘once on the internet, always on the internet’. Here is space at most for a few notes.
G. On the disadvantages Numerous arguments have been brought against the use of cameras in courtrooms. Particularly worth reading is the piece by R. Herz, who has served as a ‘real’ German judge for over 20 years and played a ‘television’ judge for four years. Thanks to this unique experience, she can provide extremely valuable insights about the problems and questions related to cameras in court, such as the issue of public scrutiny (9).
The cameras may interfere with various rights of the participants, such as the right to privacy and amily life, the right to protection of personal data and to be forgotten, and the right to a fair trial
The possible downsides mentioned throughout the debate can be roughly divided into three. First, from the legal point of view, the cameras may interfere with various rights of the participants, such as the right to privacy and family life, the right to protection of personal data and to be forgotten, and the right to a fair trial. In criminal proceedings, the presumption of innocence and considerations regarding the rehabilitation in the event of a conviction may be relevant. Second, from the practical perspective, the cameras (nowadays more the feeling that they are there) can distract the participants – judges, lawyers, parties, witnesses or members of the jury. Some of them may be intimidated, others may feel under pressure or may be encouraged to act up. All this is also linked to the media coverage and the risk of sensationalising. Third, the previous two categories may negatively inuence the serenity
It is true that private parties and individuals concerned, such as individual claimants, accused or victims, can attend the hearing, but their presence, unless they were summoned by the Court, is not a prerequisite for the hearing to be held. Most of the time, legal professionals appear before the Court. There is no jury and witnesses are examined extremely rarely, sometimes even in camera. At the same time, the camera ban in the United States Supreme Court is maintained despite the absence of witnesses. In addition to
9. R. Herz, The Dilemma of Open Justice in the Present Political, Social and Cultural Climate, in: B. Hess, A. Koprivica Harvey, (eds), Open Justice. TheRole of Courts in a Democratic Society, 2018.
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court. The rights of the members of the public attending the hearing in person would also have to be protected. And nally, is there any reason to claim that the individual rights of legal professionals cannot be affected?
that, one of the examples where witnesses were heard in Luxembourg was a prominent case of the former Maltese commissioner, and thus a clear candidate for streaming – Dalli v Commision (T-562/12). The General Court heard the statements of the applicant and ve other witnesses, including the President of the European Commission. Further, since July 2018, preliminary ruling cases have been anonymised by default. Nevertheless, the procedural rules permit individuals to represent themselves before the Court, if they may do so under national law. By way of illustration, an individual claimant in a social security case dealt with by the Slovak Supreme Court could plead in person in a hearing in Luxembourg. It would be ridiculous to anonymise the case, but at the same time to record his face on video or for streaming. An interference is also thinkable even if the respective individual would not be present in the hearing. It is not unusual that in preliminary ruling hearings, certain facts are discussed in detail, such as dates and times of detention of an accused in criminal cases, or dates and places of work in social security cases. The same goes for civil service cases. Particularly sensitive data could also be revealed, in case the parties or the judges deem them relevant for the decision of the
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Admittedly, the hearings as such are already public. However, it is the question of intensity. The ‘ordinary’ publicity of the hearings interferes with any individual right much less than the streaming of hearings and disclosure of them in the form of videos-ondemand on the internet. For instance, some of the facts discussed in the hearing may never nd a reection in the opinion or the judgment, whereas the video once uploaded online would remain available for considerable time, if not forever. Apart from that, what if for example the criminal case of recognisable XY would be meticulously dealt with by the Court in a hearing, streamed and later posted online, but the domestic proceedings would then result in an acquittal? As for the change in behaviour, some argue that the cameras would inuence the participants at the hearing, while others claim the opposite. The problem is, that it is empirically impossible to conclusively prove who is right and who is wrong. Every trial is dif-
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character of their job, but those online may not. Judges could also be inuenced in several ways. Even an entirely positive motivation could have a negative effect. They may for instance concentrate on acting as wise, strong and self-condent adjudicators who are not detached from reality with a view to presenting the institution in a good light, and thus increasing its legitimacy and the condence of the public. Of course, even such commendable efforts could distract them from the actual aim of the hearing. Apart from that, they may attempt to use simpler language with no legal jargon or to avoid complex legal reections and intricate considerations. Of course, people should not, just to look smart, use Latin terms or intentionally express themselves in a way that nobody can understand them. On the other hand, oversimplication of the debate in order to enable the broader public to understand would in my view cripple the discussion. The hearings should not resemble reality-shows to entertain the masses. Finally, and with all due respect, less noble motives of individual members of the Court are also conceivable.
ferent, every case has its own peculiarities. This excludes a proper scientic experiment, as it is impossible to conduct the same trial rst with, and then without cameras, or vice-versa. Yet the change in behaviour having a signicant negative impact is a real risk. Speaking out of her year-long experience as a principal court artist at the BBC, Julia Quenzler stated that the way in which individuals present themselves will change if they believe that their image is being recorded at the relevant time (10). The behavioural change may take different forms and be for various reasons. It is true that the cameras could result in better preparation by all stakeholders, from the lawyers, over the experts and interpreters, to the judges. All of them could act with more responsibility than without the cameras. However, negative consequences are also thinkable. Some participants could try to show off, for instance to impress their actual client or to attract some new ones. For others, the exposure to the cameras may embody an additional element of stress. Whether they were anxious about the watchful eye of their demanding client, strict supervisor or ignorant domestic politician or just worried about being embarrassed, the discomfort could negatively inuence their reasoning and/or their performance. The interpreters may also suffer from extra stress. Knowing that their potential verbal stumbling will be streamed and recorded for later use, they may possibly make mistakes, which they otherwise would not make. Those in the courtroom usually understand the demanding
All this could negatively inuence the hearing, and hence the decision-making process of the Court as such. Moreover, the latter could sometimes be adversely affected in one more way. Knowing that the hearing would be streamed and made available in the form of a video-on-demand later, the parties to the proceedings may refrain from requesting a hearing or the judges may decide not to hold one. In certain cases, this could have no effect at all or be even positive, but it could be detrimental in others.
10. J. Jaconelli, Open Justice: A Critique of the Public Trial, 2002, p. 321.
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In an extreme case, the rule of law could thus be damaged rather than reinforced. That clearly must be avoided. Depending on the outcome of the balancing exercise, it could be either through appropriate safeguards, such as an appropriate delay of the streaming, rules on who can and cannot be lmed, beeping out undesired disclosure, or even through no streaming or videos-ondemand at all.
It is vital, even for such an institution as the CJEU, to receive feedback and food for thought on its activity from the outside times even should) have an opinion, though it might be a lot easier without being in someone’s shoes: it is easy to talk about doing someone’s else’s job, spending someone’s else’s money and raising someone’s else’s kids. Have those ercely ghting for access to documents ever tried to assess any reallife document and decide what interests could be at stake and whether (and if so, to what extent) the access should be granted, being obliged to bear all the responsibility for it? Have those insisting on the necessity of anonymisation ever tried to anonymise a real-life document?
H. Judges’ business? It is not only interesting, but also crucial what the judges think of cameras in their courtrooms. Lord Gill, for instance, declared the support of judges, as he announced that he accepted all the recommendations of the review group in 2015. The ECtHR mentioned in its budget request from 2004 an “almost unanimous acceptance of webcasting within the court”. By contrast, the former US Supreme Court Justice Souter once said, “the day you see a camera come into our courtroom it’s going to roll over my dead body.”
Having said that, the reasons for not doing something instead of doing it can always be found. Certainly, we should be aware of risks and do our best to avoid negative consequences to the most possible extent. Nevertheless, the fear as such should not stop progress. Those who want to, look for ways, and those who do not look for reasons.
The opinion of the CJEU should also play a decisive role. This does not mean ‘leave it to them’, or even ‘let them do what they want’. Sure, the academics and legal practitioners outside the institution have an indisputable right to comment on the topic. There is no substitute for their contribution, and it is vital, even for such an institution as the CJEU, to receive feedback and food for thought on its activity from the outside. Just keep in mind that the judges must make the initial balancing exercise and live with any consequences. Anyone can (and some-
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rings scheduled between 16 March and 30 April (Court of Justice) and 15 May (General Court).
IV. Excursus: lessons learned from the COVID-19 outbreak? The COVID-19 outbreak has dramatically inuenced our lives over the past few weeks, and has heavily affected the courts in Europe and worldwide, including the CJEU. Has all this perhaps taught us a lesson about the streaming of hearings from Luxembourg?
Nowadays, remote hearings in urgent matters make sense despite their disadvantages. Going even further, face-to-face hearings could possibly be permanently abandoned and replaced by remote hearings, but only in lower instances in certain, carefully selected types of disputes. An example is the Civil Resolution Tribunal operating in British Columbia, Canada, since July 2016. Also called ‘a court without a courtroom’, the tribunal is the world’s rst online tribunal fully incorporated into the public justice system.
On 23 March 2020, Jean Richard de la Tour became the latest Advocate General to join the Court of Justice. Considering the travel limitations and health guidelines, he was sworn in remotely by videoconference. Ana Maria Guerra Martins, the ECtHR judge elected in respect of Portugal, took the solemn oath the same way on 1 April 2020. These, however, were ‘rst-aid’ solutions. The circumstances were extraordinary and so were the steps taken to deal with the situation.
Under current circumstances, it is also viable to temporarily exclude the public from proper hearings due to public health reasons. Such a measure could be provisionally outweighed by other means, like the streaming of the hearing. Having said that, it is hard to believe that the publicity may be permanently and fully satised only through streaming. Streaming of non-remote hearings should remain merely an additional tool of openness and publicity. It should not become an alternative to the open door of a courtroom and the possibility to physically attend and follow a hearing.
As freshly reported, some courts in the United Kingdom held remote hearings, including the Supreme Court. Several protocols on remote hearings have been issued (see, for instance, the one for Civil justice for England and Wales, as well as the one by the Vice President of the Court of Protection), and media representatives can attend remote hearings. Even the United States Supreme Court plans to hold remote hearings in the rst half of May. As mentioned above, Slovakia has also adopted certain measures related to hearings (11). By contrast, the European Union courts decided to postpone hea-
There are myriad lessons we should learn from the actual crisis. It even makes sense to temporarily move the hearings from the courtrooms into the virtual space. Even so, recent times have not shown that the CJEU would be late with streaming. On the other hand, the crisis may indeed weaken some
11. Other examples of how the justice is being delivered remotely these days can be found on the website remotecourts.org set up by the Society for Computers and Law. Its President, Richard Susskind, states that we all “must seize the moment”.
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courts’ resilience to modern technologies and give them a kick in the direction of streaming.
V. Concluding remarks The dilemma of the CJEU resembles somehow the one of Shakespeare’s Hamlet – to stream, or not to stream, that is the question. Considering the different approaches adopted by various judiciaries and the valid arguments on both sides, to me it is a tough nut to crack with no straightforward way out. I can see the possible benets, but I understand the concerns too. To conclude, I plead for a precautionary approach and for careful and thorough analysis of all the pros and cons. At the same time, I doubt that the CJEU should embrace streaming only because it can, or because other courts have already done so. It is after all unique, especially considering that it cooperates with domestic courts of all European Union Member States on a daily basis. Likewise, a parallel with e-voting appears appropriate here – there are certainly benets, but do they outweigh the drawbacks? Let us see how the Court will eventually approach the matter.
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News Highlights Weeks 6-17 April 2020
War and COVID-19: EU and UN appeal for all weapons in wars across the world to be laid down in global ceasefire Monday 6 April
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The EU followed the UN Secretary General in calling for an immediate global ceasere, as a humanitarian exception, in light of the COVID-19 pandemic. The EU’s statement, made by High Representative Josep Borrell, urged all those involved in armed conicts anywhere in the world to engage in efforts to nd a political solution. It was stressed that sanctions should not adversely affect delivery of essential medical equipment and supplies.
Swedish Central Bank joins ECB’s instant payments settlement platform Monday 6 April
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The European Central Bank, the Eurosystem and the Swedish Central Bank have concluded a cooperation agreement offering Sweden access to the Eurosystem’s TARGET Instant Payment Settlement to support the Swedish instant payment service (RIX-INST). Electronic payments made in Swedish krona can now be settled on the settlement platform for instant payments operated by the Eurosystem.
Approval of various aid schemes in the context of COVID-19 outbreak under the Extended Temporary Framework
COVID-19: VAT and Customs Duties waived on import of medical equipment from non-EU countries
Monday 6 April
Monday 6 April
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The European Commission approved State aid schemes notied by the UK, Portugal, Greece, Poland, and the Netherlands to support the economy in the context of the COVID-19 outbreak. The Commission found the notied measures to be necessary, appropriate and proportionate to remedy a serious disturbance in the economy of the incumbent Member States, in line with Article 107(3)(b) TFEU and the conditions set out in the Extended Temporary Framework.
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The Commission announced that it has swiftly approved requests made by all Member States and the UK, under Article 74 of Customs Regulation 1186/2009 and Article 51 of VAT Directive 2009/132/EC. This means that customs duties and VAT on the import of medical devices and protective equipment (including testing kits and ventilators) from non-EU countries has been waived for six months until 31 July 2020, in order to facilitate the acquisition of such goods.
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Advocate General Øe proposes flexible interpretation of the scope of application of Brussels I Regulation regarding interim measures Monday 6 April
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In his Opinion in Supreme Site Services and Others (C186/19), Advocate General Saugmandsgaard Øe advised the Court of Justice to rule that Article 1(1) of the Brussels I Regulation may cover applications for interim measures depending on the nature of the right which the interim measure intends to safeguard and on whether that right derives from an act of public authority or from a legal relationship characterised by a manifestation of public authority.
Medical Devices Regulation: Commission proposal for application to be postponed Monday 6 April
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The European Commission adopted a proposal based on Articles 114 and 168(4)© TFEU to delay the application of Medical Devices Regulation 2017/745 on an exceptional basis, by one year until 26 May 2021. This purports to allow Member States, health institutions and economic operators to prioritise the ght against the coronavirus pandemic, and the need for an increased availability of vitally important medical devices across the EU.
Advocate General’s Opinion on centralised purchasing mechanisms under public procurement Directive 2004/18
Commission and European Investment Fund mobilise 8 billion euros to finance guarantees for SMEs in the context of COVID-19 outbreak
Monday 6 April
Monday 6 April
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In his Opinion in Asmel (C-3/19), Advocate General Campos Sánchez-Bordona suggested the Court of Justice answer questions posed by the Italian Council of State (Consiglio di Stato) as follows: Article 11 of Directive 2004/18 does not preclude national rules under which small local authorities are required to purchase works, goods and services through central purchasing bodies whose sphere of operation is restricted to the territory of the municipalities in question as a whole.
General Court to rule on the ban of flags at the European Parliament Tuesday 7 April
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Ofcial publication was made of the action for annulment (T-88/20) brought before the General Court by Jérôme Rivière and 10 other applicants against the oral decision of the President of the European Parliament forbidding the placing of national ags on the desks of Members of Parliament. President Sassoli based this decision on Article 10 of the European Parliament’s Rules of Procedure, according to which MPs shall, inter alia, not disrupt the good order of the Chamber, refrain from improper behaviour, and not display banners.
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The European Commission and the European Investment Bank Group announced that they have unlocked 1 billion euros from the EU Budget for the European Fund for Strategic Investments. This will allow the European Investment Fund to issue special guarantees to incentivise banks and other lenders to provide liquidity to at least 100,000 European small and medium-sized enterprises and small mid-cap companies hit by the economic impact of the coronavirus pandemic, for an estimated available nancing of 8 billion euros.
AG Campos Sánchez-Bordona’s Opinion on export restrictions on electricity under Article 35 TFEU Tuesday 7 April
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In his Opinion in Hidroelectrica (C-648/18), Advocate General Campos Sánchez-Bordona suggested the Court of Justice rule that Article 35 TFEU precludes the obligation under national law to centralise wholesale transactions in electricity on a single platform managed by an operator designated by the national authorities, prohibits producers from exporting electricity directly to other Member States
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AG Saugmandsgaard Øe: YouTube and Portuguese Judge Guerra Martins Google do not have to provide the email sworn in at the European Court of Huaddress and IP information of a user in- man Rights fringing IP rights by uploading films on Tuesday 7 April READ MORE ON EU LAW LIVE that platform under EU Directive After being elected by an absolute majority of votes cast 2004/48 at the Council of Europe’s Parliamentary Assembly in Tuesday 7 April
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According to Advocate General Saugmandsgaard Øe’s Opinion in Constantin Film v YouTube and Google (C-264/19), YouTube and its parent company Google are not obliged under Article 8(2)(a) of Directive 2004/48 (on enforcement of IP rights) to give the email address, the telephone number, and the IP address used to upload those les or the IP address used when the user’s account was last accessed of a user who infringes a lm distributor’s exclusive exploitation rights in respect of cinematographic works.
Regulation on Minimum Requirements for water reuse for agricultural irrigation: Council adopts position at first reading Tuesday 7 April
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The Council adopted its position at rst reading of the Regulation on Minimum Requirements for water reuse, a measure dealing with water scarcity and a deterioration in water quality in the EU, including the availability of freshwater due to climate change and unpredictable weather.
ECB brought before the General Court for its refusal to instruct insolvency administrator of PNB Banka Wednesday 8 April
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October 2019, Ana Maria Guerra Martins was sworn in as the Judge in respect of Portugal at the European Court of Human Rights, which took place by live-video stream due to the COVID-19 outbreak.
ECB announces news temporary collateral easing measure to fight Covid-19 downturn Tuesday 7 April
The Governing Council of the European Central Bank adopted a package of temporary collateral easing measures to facilitate the availability of eligible collateral for Eurosystem counterparties to participate in liquidity providing operations, such as the targeted longer-term renancing operations (TLTRO-III).
Court of Justice orders temporary suspension of Polish Disciplinary Chamber functioning Wednesday 8 April
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The President of the Court of Justice handed down an Order in Commission v Poland (C-791/19 R) ordering Poland to immediately suspend the application of the national provisions on the powers of the Disciplinary Chamber of the Supreme Court with regard to disciplinary cases concerning judges. By this Order, the Court grants the Commission’s application for interim measures led on 23 January 2020.
Ofcial publication was made of an action for annulment (T-50/20) led before the General Court by PNB Banka AS (Riga, Latvia) against the European Central Bank’s decision of 19 November 2019 by which the ECB refused to comply with the request to instruct the insolvency administrator of PNB Banka to grant access to the bank, its information, staff and resources.
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EU Advisory Mission on Security Sector Reform in Iraq extended until April 2022 Wednesday 8 April
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Excess deficit in Romania due to noncompliance with deficit criterion Wednesday 8 April
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The mandate of the Mission was extended until 30 April 2022 further to a review, and the recommendation of the Political and Security Committee, which is put into effect by Council Decision (CFSP) 2020/513, published in the Ofcial Journal.
Council Decision 2020/509, addressed to Romania, was published in the Ofcial Journal, announcing that an excessive decit exists due to non-compliance with the decit criterion. The Council also fullled its obligation to advise how to resolve the issue within a given time period in the form of a Council Recommendation, also published in the Ofcial Journal.
ESMA issues positive Opinions on proposed Hungarian product intervention measures
Governments’ COVID-19 Measures: how are they impacting human rights?
Wednesday 8 April
Wednesday 8 April
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The European Securities and Markets Authority issued two opinions on two product intervention measures notied by the Hungarian Magyar Nemzeti Bank, to be adopted in accordance with Article 42 of Regulation 600/2014. The measures consist of (i) a permanent restriction on the marketing, distribution or sale of contracts for differences to retail clients in or from Hungary, and (ii) a permanent prohibition on the marketing, distribution or sale of binary options to retail clients in or from Hungary. The proposed national measures, which are expected to take effect on 10 April 2020, are the same as ESMA’s measures in this area.
Assisting countries beyond the Member States to fight the COVID-19 pandemic Wednesday 8 April
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The European Commission and the High Representative for Foreign Affairs and Security Policy set out plans to support the EU’s partner countries to ght the pandemic, in a Joint Communication. This involves nancial support to partner countries amounting to more than 15.6 billion euros from existing external action resources.
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The Fundamental Rights Agency published its rst monthly report on the impact of the COVID-19 pandemic on human rights, which looks at the impact of government measures that have been imposed in response to the outbreak on the fundamental rights of individuals. The report notes that such measures particularly affect the rights of vulnerable and at-risk categories of people.
EU-proposed toolbox for the use of mobile apps and data for COVID-19 measures Wednesday 8 April
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Publication was made of a Commission Recommendation proposing a common EU approach on how digital technologies and data are used. The proposal will be developed by the Member States and the European Commission, with the participation of the European Data Protection Board, and it is expected to be presented by 15 April 2020.
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New Single Market Enforcement Task Force: ensuring the free flow of goods across borders
Antitrust Guidance from the Commission in the context of COVID-19 and avoiding shortages of medicines
Wednesday 8 April
Wednesday 8 April
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Following its creation through the Action Plan presented by the Commission on 10 March 2020, the SMET had its rst meeting, held in light of the urgency caused by the COVID-19 pandemic which affects the Single Market, especially for the intra-EU export of vital protective, medical and medicinal supplies, border controls and the need to increase production of essential equipment.
Antitrust Guidance was issued by the European Commission, in a Temporary Framework Communication, to companies cooperating in response to urgent situations related to the coronavirus outbreak, in particular shortages in medicines due to the increase in demand and simultaneous disruption of supply chains, explaining how and when they can obtain (1) (oral) guidance or (2) a ‘comfort letter’ issued by the Commission.
Renewed Sustainable Finance Strategy: Consultation
The Eurogroup on further economic measures to be taken to tackle the consequences of the COVID-19 crisis
Thursday 9 April
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The European Commission opened up a consultation to collect views until 15 July 2020, which it will take into account when drawing up its Renewed Sustainable Finance Strategy in the second half of 2020, in line with its long-term goals under the umbrella of the European Green Deal.
European Court of Human Rights exceptionally extends deadlines for another two months Monday 13 April
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On 16 March 2020, the European Court of Human Rights decided to extend certain deadlines relating to the lodging of a case under Article 35 of the European Convention of Human Rights for one month. That deadline was extended for a further two-month period from 16 April 2020 to 15 June 2020 inclusive. Other measures were also adopted in response to the disruption caused by the COVID-19 crisis.
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Monday 13 April
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The Eurogroup, in inclusive form, published a report summarising the measures taken so far at both national and European levels to face the ongoing COVID-19 pandemic, and those still envisaged. The Eurogroup expressed its support for a number of measures which have been proposed by it and other Institutions but are not yet in place, requiring legislative proposals to be made and processed in several specic areas.
Commission approves several Belgian State aid schemes in the context of the COVID-19 outbreak under the Extended Temporary Framework Monday 13 April
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The European Commission approved several State aid schemes notied by Belgium under the State aid Temporary Framework to support the economy in the context of the COVID-19 outbreak. The approved measures include a Flemish guarantee scheme for working capital and investment loans, a nationwide loan guarantee scheme accessible to all companies, including SMEs and self-employed traders, and a scheme deferring the payment of the concession fees owed by the Walloon airports (Charleroi and Liege) to the Walloon authorities.
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Council adopts position on amending EU Enforcement Regulation in view of WTO Appellate Body’s paralysis Monday 13 April
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European ambassadors meeting in the Committee of Permanent Representatives (Coreper) approved the Council’s position on the proposal for a Regulation amending Regulation 654/2014 concerning the exercise of the EU’s rights for the application and enforcement of international trade rules. The amendments will allow the Commission to take action in a situation in which WTO dispute settlement procedures are blocked.
ESMA measures to mitigate effects of COVID-19: coordinated action regarding benchmarks external audit requirements Monday 13 April
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The European Securities and Markets Agency issued a Public Statement to promote coordinated action by National Competent Authorities regarding the timeliness of fullling external audit requirements for interest rate benchmark administrators and contributors to interest rate benchmarks, noting that such timeliness can be affected by the consequences of COVID-19.
Recommendation for EU toolbox for the use of mobile apps and anonymised data to fight COVID-19 published Tuesday 14 April
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Ofcial publication was made of Commission Recommendation 2020/518 advocating a common EU approach in the use of mobile apps and data to ght COVID-19. The Recommendation describes such technology and data as an important tool for informing the public and helping relevant public authorities in their efforts to contain the spread of the virus or allowing healthcare organisations to exchange health data.
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Commission approves COVID-19 State aid schemes under the Extended Temporary Framework in respect of Austria, Croatia, Lithuania, Poland, Germany, Romania, Sweden, and France Monday 13 April
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The European Commission approved several State aid schemes notied by eight different Member States under the Extended State aid Temporary Framework to support the economy in the context of the COVID-19 outbreak.
Council adopts amended EU budget for 2020 to fight COVID-19 and assist Greece and Albania Tuesday 14 April
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The Council of the EU adopted two proposals (‘Draft amending budgets’) by written procedure to make available almost all the remaining funds from this year’s budget to ght the COVID-19 pandemic, and to provide Greece and Albania with nancial assistance.
Commission approves two new Italian State aid schemes to support the economy in the context of the COVID-19 outbreak Tuesday 14 April
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The European Commission approved two new State aid schemes notied by Italy under the Extended State aid Temporary Framework to support the economy in the context of the COVID-19 outbreak. This includes a scheme to support self-employed workers and companies, and a scheme for new working capital and investment loans granted by banks.
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Seafarers: Protecting the movement of persons and carriage of goods by sea Tuesday 14 April
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SSM and SRB accountability at European level: What room for improvements? Tuesday 14 April
Ofcial publication was made of a Commission Communication aimed at facilitating persons who work on board ships to carry out essential travel in the context of the COVID-19 outbreak, and for stranded EU citizens and third-country nationals to return home ‘if their health status permits’.
Commission approves new German guarantee scheme to support the economy in the context of the COVID-19 outbreak Tuesday 14 April
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The European Commission approved a new German State aid scheme to support the economy in the face of the coronavirus outbreak. The measure consists of a guarantee scheme supporting the insurance of trade between companies affected by the pandemic.
Legislative proposals to deal with COVID-19’s impact on the fishery and aquaculture sectors Wednesday 15 April
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The EU’s ambassadors agreed the Council’s position on a proposal to amend the European Maritime and Fisheries Fund Regulation 508/2014 (which regulates support for sustainable and competitive sheries and aquaculture), and the Common Market Organisation Regulation 1379/2013, with the aim to help EU shermen and aquaculture producers facing the serious economic challenges posed by the COVID-19 crisis.
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The European Parliament has published a Study on the legal framework governing the accountability of the Single Supervisory Mechanism and the Single Resolution Mechanism. The Study, by Professors Marco Lamandini and David Ramos Muñoz, includes a set of detailed policy recommendations to better bridging political, administrative and legal accountability of SSM and SRM.
European Investment Bank: Digitalisation Report Tuesday 14 April
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The European Investment Bank (EIB), considering that ‘the Coronavirus pandemic could become a tipping point for digitalisation’, announced the forthcoming release of a report: “Who is prepared for the new digital age? Evidence from the EIB Investment Survey”, on 20 April 2020.
Commission approves COVID-19 State aid schemes under the Extended Temporary Framework in respect of France, Bulgaria, and the Czech Republic Wednesday 15 April
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The European Commission approved further State aid schemes notied by France, Bulgaria, and the Czech Republic under the State aid Temporary Framework to support the economy in the context of the COVID-19 outbreak.
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European Roadmap to lifting coronavirus containment measures
Commission Guidelines on coronavirus testing methodologies
Wednesday 15 April
Wednesday 15 April
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The European Commission, in cooperation with the President of the European Council, presented a European Roadmap to phase-out the containment measures adopted in response to the coronavirus outbreak, in view of the slowing down of the virus’ spread and of the need for a carefully coordinated return to normality after the coronavirus lockdowns.
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The European Commission its Communication ‘Guidelines on COVID-19 in vitro diagnostic tests and their performance’ with the aim to support Member States in effectively using testing tools during the different stages of the pandemic, including when phasing out connement measures.
World leaders call for an urgent debt Council approves Multi-party Interim moratorium and unprecedented Appeal Arbitration Arrangement to tem- health and economic aid packages porarily replace WTO Appellate Body in Wednesday 15 April READ MORE ON EU LAW LIVE hearing trade disputes
Wednesday 15 April
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The Council of the EU gave its approval to the new multi-party interim appeal arbitration arrangement (MPIA) based on Article 25 of the WTO Dispute Settlement Understanding. This is a stop-gap measure to replace the WTO Appellate Body which is currently inoperative, announced by the EU and WTO on 27 March 2020.
Migration: First unaccompanied children relocated from Greece to Luxembourg Wednesday 15 April
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The Commission reported on the rst relocations based on the Action Plan for immediate measures to provide critical support to Greece in managing the extraordinary situation at the external borders. It announced that 12 unaccompanied children were relocated to Luxembourg and that another 50 people would be relocated to Germany in the following days.
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Leaders from the EU institutions, Member States, and African countries made a call for worldwide cooperation and assistance to ght the COVID-19 pandemic, expressing the concern that if the pandemic hits Africa hard, that this will prolong the crisis globally.
European Court of Auditors Opinion on Commission’s proposal to relax rules on use of European Structural and Investment Funds Thursday 16 April
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The ECA supports the move to temporarily relax spending rules of European structural and investment funds as set out in the proposal, but expresses the need for accountability, a balanced approach between exibility to release emergency funding and the need for compliance with existing rules, and highlights the risks that may arise as a result of the proposal.
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ESMA’s positive Opinions on renewal of COVID-19 related ban on short selling in Austrian, French, Belgian, Greek and Spanish markets Thursday 16 April
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Council’s position on Regulation for EU-taxonomy: encouraging sustainable finance Thursday 16 April
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In its Opinions, the European Securities and Markets Authority supported the renewal until 18 May 2020 of these short selling restrictions, which purport to ensure market stability and condence in response to the COVID-19 outbreak.
The Council adopted its position on a ‘Regulation on the establishment of a framework to facilitate sustainable investment’ at its rst reading. The objective of this measure is to encourage private investment in sustainable growth and contribute to a climate neutral economy, and avoid greenwashing and fragmentation.
Joint Statement further to meeting between EU and UK Brexit negotiators
Functioning of ECtHR during the COVID-19 confinement period
Thursday 16 April
Thursday 16 April
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A Joint Statement was released after the latest meeting concerning Brexit negotiations, cursorily stating that it was ‘constructive’, that the ‘technical work’ that has taken place since the rst negotiating round in early March was considered, and that it was agreed to organise further negotiating rounds with a view to making progress by June. It was also reafrmed that proper and timely implementation of the Withdrawal Agreement is a key priority for both parties.
Common European Approach for efficient and privacy-aware contact tracing mobile apps to fight COVID-19 Thursday 16 April
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Announcement was made of the adoption by the Member States, with the support of the European Commission, of a common European approach on how to use mobile applications for efcient contact tracing and warning in response to the coronavirus pandemic. Guidance on data protection for such mobile apps was also published.
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Following its recent announcements concerning the extension of time limits in view of the COVID-19 crisis, the European Court of Human Rights based in Strasbourg issued a press release with information about its functioning during the period that quarantine has been imposed by French authorities.
Official Gazette and Special Issue published by the Community Plant Variety Office Thursday 16 April
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The ofcial Gazette includes basic information about the different varieties and complies with the UPOV recommendations as to publication of plant breeders rights. The special issue provides applicants with a consolidated version of the closing dates for applications and the submission requirements for plant material in view of their technical examination.
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Helping farmers during COVID-19: reducing checks and improving cash flow Thursday 16 April
Action Plan for greater cooperation in the Danube Region Thursday 16 April
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The European Commission proposed two measures to assist farmers and the agri-food sector to address the need for food security and an effective food supply chain across Europe as a priority: (i) increasing the cash ow of farmers through higher advances of payments, increases in direct payments and rural development payments, and (ii) reducing administrative burdens, as it is crucial to minimise physical contact between farmers and inspectors.
The European Commission announced that it welcomes the revised Action Plan of the EU Strategy for the Danube Region, which provides a cooperation framework for several countries (Austria, Bulgaria, Croatia, Czechia, Germany, Hungary, Slovakia, Slovenia and Romania, as well as non-EU countries Bosnia and Herzegovina, Moldova, Montenegro, Serbia and Ukraine) and adds new strategic actions for EU policy implementation, based on the initial 2010 plan.
Commission’s advice on implementing EU rules on asylum, return and resettlement procedures and resettlement while COVID-19 is ongoing
Council of the EU asks banks to continue financing households, struggling SMEs, and refrain from making distributions while the COVID-19 crisis is ongoing
Friday 17 April
Friday 17 April
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The Commission produced Guidance on how to implement EU rules on asylum and return procedures, and on resettlement, as COVID-19 rages on, in response to a request from Member States for advice, and with the cooperation of the European Asylum Support Ofce and Frontex, as well as national authorities.
The Council described the continued nancing of households, temporarily struggling SMEs, and pausing the issuing of distributions as ‘crucial’, in line with the view of supervisory authorities. The Council advised a exible use of the existing rules in the prudential and accounting framework.
ECtHR refers Russian case on extradition of ethnic minorities to Grand Chamber
European Central Bank Regulation allowing statistical reporting deadlines to be extended due to COVID-19 challenges
Friday 17 April
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The Grand Chamber panel of the European Court of Human Rights decided to accept a referral made to it of T.K. and S.R. v. Russia, a case concerning the decision of Russian authorities to extradite two Kyrgyz nationals living in Russia to Kyrgyzstan, where they are to be prosecuted, and the applicants’ allegation that such extradition would put them at risk of ill-treatment because they belong to the Uzbek ethnic minority.
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Friday 17 April
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Considering the challenges for existing statistical reporting obligations, a new ECB Regulation (2020/533) was adopted and published in the Ofcial Journal, to allow for an extension of the deadlines for certain reporting of statistical information for a xed period of time (but which cannot be extended beyond 30 June 2021).
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Commission approves Hungarian State aid to support the economy in the context of the coronavirus outbreak Friday 17 April
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The European Commission decided to approve a State aid scheme notied by Hungary in the context of the COVID-19 crisis. The support measure, with an overall budget of 350 billion HUF (approximately one billion euros), will be nanced by the EU structural funds. This is the rst aid scheme notied by Hungary in the context of the pandemic.
Commission approves COVID-19 Croatian State aid for fishery and aquaculture companies Friday 17 April
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The European Commission approved a State aid scheme notied by Croatia to support the sheries and aquaculture sectors in Croatia in the context of the COVID19 crisis. This is the second coronavirus-related aid scheme authorised by the Commission in respect of Croatia, following last week’s approval of two Croatian loan schemes for companies affected by the pandemic.
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EUIPO Update Friday 17 April
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The European Union Intellectual Property Ofce issued updates informing that it is still open for business, noting a ‘worrying decline in lings’, but conrming that work is ongoing in every other area. It also informed WIPO correspondents of the fact that WIPO cannot send or receive communications by postal mail until further notice, due to the COVID-19 related suspension of postal services in Switzerland.
Commission approves further Austrian State aid schemes in the COVID-19 outbreak Friday 17 April
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The European Commission approved State aid schemes notied by Austria to support small and medium-sized enterprises (SMEs) in the context of the COVID-19 crisis. These schemes, in the form of State guarantees for working capital loans, complement the Austrian liquidity scheme approved by the Commission on 8 April 2020.
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Analyses & Op-Eds CJEU rules that an online marketplace storing and dispatching infringing products, without itself selling these items on the platform, does not infringe trademark By Sabine Jacques
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Analysis of the judgment in Coty v Amazon (C-567/18), in which the Court of Justice concluded that the German Amazon Marketplace which stored and dispatched goods on behalf of a third party, which was infringing Coty’s licence in a trade mark, is not liable for infringement unless the Amazon marketplace also sells these infringing products itself. Sabine Jacques explains the meaning of this ruling and puts it in the context of recent developments on platform liability in copyright.
Solidarity in Times of Crisis By Silvia Bartolini
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Analysis of the recent Court of Justice’s judgment in Commission v Poland, Hungary and Czech Republic (Joined cases C-715/17, C-718/17, C-719/17) where it found that these Member States, by refusing to take in their fair share of applicants for international protection for the benet of Greece and Italy pursuant to Council Decision (EU) 2015/1523 and Council Decision (EU) 2015/1601, failed to full their obligations under EU law.
EEA nationals enjoy the same protection as EU citizens when they exercise the freedom of movement By Magnus Schmauch
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Editorial Opinion on the Court of Justice’ ruling in Ruska Federacija (C-897/19 PPU), which concerns the question how the principle of non-discrimination and the Court’s Petruhhin (C-182/15) case law should be applied when a citizen of an EFTA State, which is a member of the European Economic Area, makes use of the right to move freely within the EEA and travels to an EU Member State. Magnus Schmauch explains why this judgment entails another building block in the principles of homogeneity and, implicitly, of reciprocity.
Primacy of EU law and res iudicata in national criminal proceedings, revisited and reversed. A comment on Vueling (C-370/17 and C-37/18) By Daniel Sarmiento
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Editorial Opinion on the meaning and signicance of the Vueling judgment, in which the Court of Justice set a derogation to its well-established case law according to which the principle of legal certainty prevails over the primacy of EU law, thus precluding the reopening of national denitive judgments that breach EU law.
Library - Book Review TAWHIDA AHMED AND ELAINE FAHEY (EDS)
By Menelaos Markakis
Elgar Publishing, 2019, 320 pp.
On Brexit: Law, Justices and Injustices
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Review of a collective book bringing together some of the most interesting voices in legal scholarship and – in stark contrast to many Brexit works or projects – including EU27 voices. Its theme and methodological approach are noted as setting this book apart from earlier Brexit work.
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