JUNE 13
2020
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Janek Nowak
ON THE INCOMPLETENESS OF THE SYSTEM OF REMEDIES ESTABLISHED BY THE EU TREATIES AND HOW TO PROCEED Dolores Utrilla
GOVERNING A PANDEMIC THROUGH SOFT LAW: CHALLENGES FOR JUDICIAL REVIEW
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On the incompleteness of the system of remedies established by the EU Treaties and how to proceed Janek Nowak 1
shows that these actions reveal a deeper issue. It appears that the Member States in question have detected a gap in the system of remedies provided by the EU Treaties and are trying to overcome that gap by making use of the existing avenues in a creative way. It is EU procedural law at its cutting-edge, not incompetence.
Introduction In the past years, various Member States have brought actions for annulment against opinions of the European Commission (2). It is, however, the established case law of the EU Courts that Commission opinions are not actionable measures and can thus not be challenged before the EU Courts. Similarly, being the other side of the same coin, it is equally established case law that a decision of the European Commission to initiate infringement proceedings constitutes an exercise of discretionary power, meaning that no action for failure to act lies against the failure of the Commission to initiate an infringement procedure. Yet, only recently a Member State brought an action for failure to act against the European Commission for having failed to initiate infringement proceedings (3).
The problem that underlies these actions has been set out comprehensively by Professor Dolores Utrilla in a previous edition of EU Law Live. I will use it as a starting point for a broader discussion on the current system of remedies provided for by the EU Treaties. While the Court of Justice of the European Union repeats on a regular basis that the EU Treaties provide a complete system of legal remedies and procedures to ensure judicial review of the legality of EU acts (4) and it is received wisdom that the European Union is a Union based on the rule of law where neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the Treaties (5), recent years have shown that the system of remedies is far from com-
Why are Member States bringing these actions? At rst sight, one could point at the incompetence of the Member States’ agents for having failed to grasp the basics of EU procedural law. However, a second look
1. Janek Tomasz Nowak is a Research Fellow at the MPI Luxembourg and a doctoral researcher at KU Leuven, Belgium. He is currently nalising a PhD on the ex ofcio application of EU law by national judges. Janek also teaches an introduction to EU law at MCI Innsbruck, Austria, and is the editor of EU Procedural Law by Koen Lenaerts, Ignace Maselis, and Kathleen Gutman. 2. Czech Republic v Commission, T-147/15; Romania v Commission, T-784/14; Slovakia v Commission, T-678/14; 3. Czech Republic v Commission, T-13/19, pending. 4. European Union Copper Task Force, C-384/16, para. 112. 5. Les Verts, 294/83, para. 23.
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The multiple cases of the Czech Republic against the European Commission regarding the extent of its nancial responsibilities in the area of traditional own resources (TORs) are an apt illustration. They are an attempt by the Czech Republic to challenge the amount Identication of the issues of payments due under Regulation 1150/2000 , which is currently Regulation It is perhaps too ambitious to map all exis609/2014. This Regulation lays down the ruting problems in detail within the connes of les on making available to the Commission this contribution. The following overview is the own resources of the Union: traditional therefore not exhaustive but rather illustratiown resources (mainly customs duties), VAT ve of the fact that many isbased own resources sues are still open. I will and GNI-based own use recent cases and isresources. Member sues as examples and States are under a lestructure them into four Only rarely does the subject gal obligation to magroups, using the relaof the legal protection of ke the required tionship between diffeMember States against the amounts available to rent actors (EU, Member the EU budget by an States, private parties) as EU receive attention entry into the aca criterion for categorisacounts set up for this tion. purpose. If the Commission is of the opi(i) Protection of Memnion that a Member State has not made avaiber States against the European Union lable the amounts legally due, it will inform the Member State concerned of its assessThe doctrine on legal protection in EU law is ment and ask it to make the necessary paymainly focused on the protection of indiviments. duals against acts of the European Union. Only rarely does the subject of the legal proThe Member State is, however, not able to tection of Member States against the EU rechallenge the Commission’s assessment. ceive attention. After all, it is the Member The transmission of its opinion is solely a States that have designed the system of rememeans to bring the incorrect application of dies provided for by the EU Treaties. The prothe Regulation to the attention of the Memblem is, however, that issues arise as one ber State and does not create a legal obligagoes along. A Treaty amendment is genetion to pay, which follows directly from the rally reactive in nature and does not solve the Regulation. It is comparable to a reasoned issue of a Member State being faced with a opinion in the context of infringement prolack of legal protection. plete. Many loose ends, old and new, exist and it can be questioned whether the current strategies to overcome them are sufciently effective.
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de with, and a payment made without a reservation, meaning that it does not even see a legal ground for infringement proceedings (7). Member States are thus effectively barred from challenging the Commission’s assessment before the EU Courts.
ceedings proper and not considered to be an actionable measure. The only way for the Member State to challenge the Commission’s assessment is to remain in default and wait until the Commission brings infringement proceedings before the Court of Justice. If the Court would then decide that the Commission’s assessment was correct, the Member State will be liable to pay the amount due plus default interest, which starts running from the day the Member State has received the Commission’s opinion. (Interestingly, the Court held that this effect could not lead to the conclusion that the opinion is a binding act (6).) In order to avoid paying the default interest, which is quite high, Member States usually make the payment and add their reservations to it. Once that payment has been made, however, there is no longer any incentive for the European Commission to bring infringement proceedings. Moreover, the Commission considers that there is no difference between a payment ma-
This explains why Member States have tried to bring annulment proceedings against opinions of the European Commission. It also explains why the Czech Republic has started an action for failure to act against the Commission, namely to force the Commission to commence infringement proceedings against the Czech Republic. This shows the Kafkaesque nature of the situation. Various solutions have been proposed by Advocates General: an obligation for the Commission to start infringement proceedings, an action for damages, an action for unjust enrichment, and a request by the Member State concerned to reverse the entry in
6. Slovakia v Commission, C-593/15 P and C-594/15 P, para. 61. 7. This view is contested, however. See the Opinion of AG Sharpston in Czech Republic v Commission, C-575/18 P, point 98. That being said, as long as the Commission sees this differently, it will not bring infringement proceedings and reservations will not be of much use.
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execution of a second infringement judgment, bringing annulment proceedings against the payment notice was for Portugal the only means to challenge the Commission’s assessment of its compliance. The action led to difcult questions regarding the division of jurisdiction between the Court and the General Court, in particular the extent to which the General Court could assess compliance of a Member State’s legal framework with EU law. In light of the exclusive jurisdiction of the Court of Justice on this point, it was decided that the General Court could only assess whether a legal framework had been altered as stated in the operative part of the Court of Justice’s second infringement judgment and not go beyond that. This eventually led to a watering down of the effectiveness of the infringement procedure, as a slight modication of the problematic legal framework would be enough for Member State to successfully challenge a payment notice, whereas the Commission had to start fresh infringement proceedings to have the new/continued infringement established. The Treaties have subsequently been amended to solve this issue.
the accounts, the refusal by the Commission being a challengeable act (8). All these solutions are imperfect, however. They distort the current understanding of established procedures and protract the problem rather than providing for an effective remedy. Moreover, an action for damages, an action for unjust enrichment or an action for annulment are far from evident in light of the division of jurisdiction between the Court of Justice and the General Court, in particular the exclusive jurisdiction of the Court of Justice to establish whether a Member State has failed to full its obligations in the context of infringement proceedings (9). We witnessed a similar issue a couple of years earlier (10). It concerned the appropriate procedure by which a Member State could dispute the assessment of the European Commission of that Member State’s compliance with a second infringement judgment of the Court of Justice with a view to ending the payment of periodic penalty payments. The Commission had issued Portugal with a payment notice to make available to it the amounts corresponding to the penalty payments imposed by the Court for continued failure to comply with EU law. Portugal refused to pay the amount and brought annulment proceedings against the Commission’s payment notice.
(ii) Protection of the European Union against the Member States The complete system of remedies also entails that Member States can be forced into compliance with EU law. Appropriate remedies, however, do not always exist and we can witness a similar pattern of creative use of exis-
The problem was of course not the legality of the payment notice as such. In the absence of a proper procedure for disputes relating to the
8. Opinion of AG Kokott in Slovakia v Commission, C-593/15 P and C-594/15 P, points 101-109; Opinion of AG Sharpston in Czech Republic v Commission, C-575/18 P, points 94-129. 9. Cf. Commission v Portugal, C-292/11 P, para. 54. See, however, the Opinion of AG Kokott in Slovakia v Commission, C-593/15 P and C-594/15 P, in which it is being implied that no problem regarding the division of jurisdiction between the Court of Justice and the General Court existed in the Portuguese case. 10. Commission v Portugal, C-292/11 P.
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A prime example is the case brought by the Commission against France because the French Council of State had failed to make a reference for a preliminary ruling to the Court of Justice in a specic case (12). The Court of Justice did not have many problems in nding a violation of EU law and it declared that France had failed to full its obligations under the Treaties. The main question: how could France execute the judgment? The government could not force the Council of State to go back to the decision in which it The current understanding and practice of failed to make the refethe infringement procerence, nor could the dure is that it is a proceCouncil of State do dure to stop ongoing inInfringement proceedings are this on its own initiatifringements of EU law ve. The nding of the and to force the Member the only judicial avenue infringement did thus State concerned into comthrough which EU institutions not make the decision pliance. This implies two can directly address violations disappear from the things. First, a violation of EU law by the Member States French legal order; it of EU law must still exist. still exists today. Yet, The infringement proceit is unlikely that the dure is about ‘prospectiCommission will start vely remedying ongoing a second round of infringement proceedings. infringements […] and not […] to obtain a reIt is also difcult to construct the Court of trospective declaration of breach’. (11) SeJustice’s judgment as indirectly penalising a cond, the breach of EU law must be of such a continuous violation of the duty to refer. The nature that it is possible for the Member StaFrench Conseil d’État is one of the early te to remedy the infringement and to stop the adopters of the mechanism, having made its state of non-compliance. If this is not possirst reference already back in 1970 (13), and ble, however, infringement proceedings are has been regularly referring since then. The not the right procedural avenue to address Court of Justice’s judgment also does not violations of EU law. Yet, we see that more guarantee that the French Council of State and more often the infringement procedure will not violate the obligation in the future is being used as a means to obtain a judgagain, as mistakes can always be made. ment of the Court of Justice that is purely declaratory in nature. ting procedures, more precisely infringement proceedings. Infringement proceedings are the only judicial avenue through which EU institutions can directly address violations of EU law by the Member States. If the EU wants to expand its means of direct judicial enforcement of EU law against the Member States, it thus has to stretch the aims and functioning of the infringement procedure.
11. Opinion of AG Bobek, Commission v United Kingdom, C-391/17, point 45. 12. Commission v France, C-416/17. 13. Syndicat national du commerce extérieur des céréales, 34/70.
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in overcoming national last instance court decisions that deliberately disregard EU law obligations or the binding nature of the Court’s judgments. In any case, it will be a purely symbolic gesture as the ultimate aim of the infringement procedure cannot be achieved.
What then was the purpose of this infringement procedure? The EU Treaties currently do not provide for a mechanism to directly review decisions taken by national courts (of last instance) that misapply EU law, whether or not as a result of the violation of the duty to refer. This may be problematic as it protracts the misapplication of EU law in the Member State concerned, until another national court gives the Court an opportunity to rectify the wrongful interpretation through a preliminary reference. The use of the infringement procedure as a purely declaratory procedure allows the European Commission to overcome the issue. It gives the Court of Justice the opportunity to indirectly review decisions of national last instance courts by stating the correct application of the rule of EU law concerned, without having to wait for a preliminary reference.
Another example of creative use of infringement proceedings can be found in Commission v UK and Commission v the Netherlands, where the Commission basically transformed the infringement procedure into a damages action against the Member States. These cases were discussed by Daniel Sarmiento in an earlier version of EU Law Live so I will keep the description of the case to a minimum. Both cases concerned the wrongful issue of customs certicates by the authorities of both Member States’ overseas territories. These customs certicates allowed goods to be imported into the EU’s customs territory free of import duties, thereby causing a loss of own resources to the European Union. The Commission then sought to recover these losses. It
Infringement proceedings could be used in the same way to address violations of EU law by national courts that are not the result of an unfortunate misapplication of EU law. It remains, however, to be seen to what extent such declaratory judgments may be effective
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ver, the Commission clearly did not nd an action for non-contractual liability in the national courts an attractive prospect. Instead it started infringement proceedings and asked the Court of Justice to declare that the Netherlands and the United Kingdom had failed to full their obligations under Article 4(3) TEU by failing to compensate the loss of own resources resulting from the wrongful issue of customs certicates – which the Court did. By this, the Commission killed two birds with one stone. On the one hand, it carved out a new remedy from Article 4(3) TEU. On the other hand, it provided itself with a legal avenue to claim compensation from the Member States in the context of the EU’s own resources. Additionally, since nothing prevents this particular use of the infringement procedure from being replicated outside of this particular context, it potentially created for itself a general damages action against the Member States before the EU courts.
did not turn against the Member States that had accepted the certicates, however, as they had faithfully applied the applicable legal framework by not levying import duties (14). Therefore, the Commission decided to recover the amounts from the issuing Member States. This was not an easy task, however. As no existing EU rule imposed an obligation upon issuing Member States to make good the losses of own resources caused by wrongfully issued certicates, it would be difcult to claim a failure to full obligations. Moreover, the declaration of a failure to full such an obligation would require more than a typical nding of a violation of EU law. It would require an assessment of the existence of loss and the causal link between the losses incurred and the breach of EU law. What the Commission thus essentially asked the Court for was a judgment declaring that the United Kingdom and the Netherlands were at fault for issuing the certicates and that this violation of EU law gave rise to a legal obligation on part of those Member States to compensate the EU for the loss of own resources incurred as a consequence of that violation. This essentially amounts to a claim for damages.
The creative use of the infringement procedure to seek compensation of Member States on account of a violation of Article 4(3) TEU is problematic for a number of reasons. First of all, it impacts on the division of jurisdiction between the EU Courts and the national courts. It is certainly not a given that the EU Courts should have jurisdiction to hear damages actions by the EU against its Member States (15). Second, it also impacts on the division of jurisdiction between the Court of Justice and the General Court, the latter being the EU Court with jurisdiction for damages
The Treaties do not provide for a damages action to be brought by the European Union against one of its Member States. Consequently, the division of jurisdiction between the EU Courts and the national courts points at the residual jurisdiction of the latter. Howe-
14. Reclaiming the money from them would have been tantamount to imposing upon accepting Member States an obligation to verify whether issuing Member States had correctly applied EU law. This would impair the effective functioning of the EU’s customs system and deny the existence of mutual trust. 15. According to AG Bobek, however, jurisdiction for disputes of a constitutional and institutional nature between the EU and its Member States are the inherent domain of the EU courts. See the Opinion of AG Bobek, Commission v United Kingdom, C-391/17, point 58.
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give preference to a coherent application of the infringement procedure over substantive coherence in EU damages law. By doing so, it has given the European Commission a preferential road to seek compensation from the Member States and has created a new problem of legal protection, this time for the Member States.
actions. Thirdly, the use of the infringement procedure as a damages action in disguise gives a clear advantage to the European Commission, as the required standard of proof is much lower compared to damages actions under EU law. For example, whereas EU damages law requires a sufciently serious breach of EU law in order to establish fault, establishing a mere lack of compliance with EU law is sufcient in the context of an infringement procedure. Also, whereas an applicant in EU damages law must prove conclusively that a sufciently serious breach has been committed, the requirement in infringement procedures is that the Commission adduces sufcient evidence to establish that EU law has not been complied with, upon which the Member State must challenge in substance and in detail the information produced by the Commission and the inferences drawn from it. This amounts to a partial reversal of the burden of proof in comparison to a proper damages action. Moreover, the Court seems to apply that standard also to the analysis of the causal link. This is all the more striking since the requirement of a causal link is in EU damages law very often an insurmountable hurdle for the applicants (16). Less so for the European Commission.
What will happen next is also unclear at the moment. The Court of Justice only established an obligation for the Member States to compensate the losses incurred, as the Commission did not incorporate actual gures in its application. Will the Member States now take the initiative, as they are under an obligation to execute the judgment, or will the European Commission issue them with a payment notice? And what will happen if there is a dispute on the exact amount? A second infringement procedure, because the Member States did not sufciently execute the Court’s judgment, or an annulment action, because the Member States dispute the amount asked for by the Commission in the payment notice? Perhaps it was not at all a good idea. (iii) Protection of private parties against the Member States
The overcompensation of the EU’s perceived lack of legal protection cannot be considered an unexpected outcome. An infringement procedure and a damages action are two very different beasts. When trying to combine both, it is almost unavoidable that the balance of interests struck in both types of procedures cannot be maintained. Which one to choose then? Contrary to the Advocate General, the Court of Justice has chosen to
In Commission v UK and Commission v the Netherlands, the Court of Justice essentially created a new remedy on the basis of Article 4(3) TEU. While this is rather exceptional at EU level, it is less exceptional in relation to the protection of private parties against the Member States. We are all too familiar with the remedies created through Francovich,
16. See, for example, Gascogne, C-138/17 P.16.
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In Commission v UK and Commission v the Netherlands, the Court of Justice essentially created a new remedy on the basis of Article 4(3) TEU
Factortame and Courage. A bit more discrete but not less signicant are the many interventions by the Court in the scheme of national remedies through the requirements of equivalence, effectiveness and loyalty or by the interpretation of provisions of various directives, such as the Unfair Contract Terms Directive or the Equal Pay Directive.
led to a realisation amongst national judges that the creation of new legal remedies is part of the powers conferred upon them by EU law. Doubts exist about how to use the case law, which is not helped by the very different justications the Court has used in the past for the creation of new remedies: effectiveness, primacy, effective judicial protection, the spirit of the Treaties, Article 101 TFEU, and so on.
Further to this, the Court has repeatedly held that a perceived gap in the legal protection of individuals at EU level should be compensated for by the Member States at national level, so that they bear the responsibility to establish a system of legal remedies and procedures which ensures the right to effective judicial protection (17). This line of case law was later codied in the second paragraph of Article 19(1), providing a very general legal basis in the Treaties for the creation of new remedies.
The Court appears to have changed course recently, however, and is building a line of case law that puts Article 47 of the Charter at the core of the system of legal protection in the European Union by providing national judges with a clear mandate to create new legal remedies to ll any gaps in legal protection that private parties may encounter.
The Court appears to have changed course recently, however, and is building a line of case law that puts Article 47 Charter at the core of the system of legal protection in the European Union
Despite all that, the creation of new remedies directly on the basis of EU law has largely remained an exceptional feature in practice, a power to be exercised in particular circumstances only and preferably on the direct instigation of the Court of Justice. Not even the Court’s clear rulings in Unibet or on the second paragraph of Article 19(1) TEU have
17. Unibet, C- 432/05, para. 42.
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‘143 À cet égard, il convient de rappeler que, si le droit de l’Union ne contraint pas, en principe, les États membres à instituer devant leurs juridictions nationales, en vue d’assurer la sauvegarde des droits que les justiciables tirent du droit de l’Union, des voies de droit autres que celles établies par le droit national (references omitted), il en va toutefois autrement s’il ressort de l’économie de l’ordre juridique national en cause qu’il n’existe aucune voie de recours juridictionnelle permettant, ne fût-ce que de manière incidente, d’assurer le respect des droits que les justiciables tirent du droit de l’Union, ou encore si la seule voie d’accès à un juge est pour les justiciables de se voir contraints d’enfreindre le droit’ (references omitted).
Typically, the Court started off with an obiter dictum that did not matter very much for the outcome of the case in question. Thus, in Egenberger, the Court held that ‘Article 47 of the Charter on the right to effective judicial protection is sufcient in itself and does not need to be made more specic by provisions of EU or national law to confer on individuals a right which they may rely on as such’ (18). It is a puzzling statement as it spells out in the clearest of terms that Article 47 Charter functions as a direct source of legal remedies, without there being a need for a provision in national law or EU law laying down a procedure or a remedy. All courts in the European Union can ll any gaps in legal protection themselves and EU law provides them with the power to do so.
‘144 Il appartient dès lors aux juridictions nationales de se déclarer compétentes pour connaître du recours introduit par la personne intéressée en vue de défendre les droits qui lui sont garantis par le droit de l’Union, si les règles de procédure internes ne prévoient pas un tel recours en pareil cas’ (references omitted).
That the Court means business can be illustrated by the recent judgment in FMS, regarding the availability of remedies in asylum procedures in Hungary. National procedural law did not grant asylum seekers a fresh appeal before a court against the decision of an administrative authority by which the country of destination of their return decision was changed because the initial country of destination refused to admit the asylum seeker. There is quite a difference however between being sent back to Afghanistan or Iran instead of Serbia. The referring Hungarian court was unsure whether the absence of judicial review was compatible with the right to effective judicial protection and how to proceed.
I trust that an online translation device will do the job for those who cannot read French or Hungarian. The bottom line is that national courts should declare themselves competent to hear actions brought by parties to defend the rights conferred upon them by EU law if national procedural law does not provide for a remedy or procedure that would allow them to do so. This is what the Court meant in saying that Article 47 of the Charter is self-standing. It provides a remedy directly on the basis of EU law every time a remedy is lacking at the national level. It is not
The Court gave the following clear answer, unfortunately only available in French and Hungarian at present: 18. Inuït, C-583/11 P, para. 97.
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The recent review case of Simpson and HG, which I covered earlier, seems to point in that direction. In its judgment, the Court had to decide, inter alia, whether incidental review of the legality of an appointment decision of a judge was possible. Such a decision is an act of individual application, meaning that incidental review of its legality would not be possible before the EU Courts as the EU Treaties only provide for incidental review of acts of general application, in accordance with Article 277 TFEU. However, on the basis of Article 47 of the Charter, the Court decided that incidental review of the appointment decision should be possible. This is undoubtedly Egenberger at work, the Court demonstrating what it means that Article 47 of the Charter is a direct source of remedies.
about systemic deciencies or exceptional circumstances. Every right conferred upon by EU law, no matter how trivial, implies a right to legal protection. Ubi ius ibi remedium. National courts must, however, feel comfortable to take the requisite step. Fashioning out completely new remedies on an ad hoc basis is not part of the toolkit of most Continental judges. Legal protection depends in practice very much on the willingness of the judge in question to go along with it. (iv) Protection of private parties against the European Union
Does Article 47 of the Charter work in the same way at the EU level? In the past, the Court of Justice has repeatedly refused to open It seems that the gap-filling The question is now up the system of remewhether the Court dies provided by the Treafunction of Article 47 will push this further ties and to allow for a larof the Charter is truly a and use Article 47 of ger direct protection of gap-filling function the Charter to either reprivate parties against lax standing criteria acts of the European under Article 263 Union. Arguments based TFEU or even to allow for a separate direct on Article 47 of the Charter were always reroute to challenge acts of the EU Institutions jected, as the provision is ‘not intended to on the basis of Article 47 of the Charter. change the system of judicial review laid down by the Treaties, and particularly the ruI am afraid this is likely to be an idle hope. It les relating to the admissibility of direct acseems that the gap-lling function of Article tions brought before the Courts of the Euro47 of the Charter is truly a gap-lling funcpean Union’ (19). However, now the Court tion. If a possibility exists to nd legal prohas expressly held in Egenberger that Article tection, even through the creative use of pro47 of the Charter is a direct source of remecedures, then Article 47 of the Charter candies and does not need to be made more spenot be a direct source of a new remedy. The cic by legal provisions, including at the EU argument that private applicants can level, one may wonder whether the Court’s challenge the legality of EU acts both diapproach will change. 19. Inuït, C-583/11 P, para. 97.
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The limited effectiveness of the indirect route can also be illustrated by the low number of preliminary references on the validity of acts of the EU Institutions, of which only around 20 were lodged in 2019 (22). This is remarkably low in light of the number of acts amenable to review through the indirect route and the number of potential litigants, as well as compared to the numbers of judicial review in national courts (23). Moreover, only a handful of those references were cases in which the national court was truly used as a substitute for direct review of the legality of EU acts. In practice, the indirect route for judicial review appears to be rather irrelevant.
rectly and indirectly before the EU Courts will thus not have lost any relevance. Moreover, in case of a problem, both the second paragraph of Article 19(1) and Article 47 of the Charter will point at the Member State level to solve the issue (20), especially now the Court has made it crystal clear that Article 47 of the Charter provides national judges with a legal basis to fashion out new remedies. The Court is thus likely to maintain that Article 47 of the Charter cannot be used to set aside the admissibility conditions laid down by the Treaties (21). Many arguments have been advanced against the Court’s proposition and will not be fully repeated here. The main issue is that the Court takes an overtly legalistic view of what constitutes a complete system of legal protection. Looking at it from an economic perspective, for example, the system makes less sense. A business that is impacted by an act it cannot challenge directly before the EU Courts will not challenge the act at all. It will not wait until it has received a decision of the Court of Justice via the indirect route but will either adapt its business model or leave the market altogether. Most businesses simply do not have the means to wait for years and hope for a favourable outcome. The indirect route may thus rather discourage the option of raising challenges for them, and thus limit legal protection.
Thus, even where Article 47 of the Charter allows the gaps to be lled at the national level in order to make indirect access to the EU Courts possible, it does not make up for the fact that the indirect route is not a viable alternative for direct access to the EU courts. This is problematic as it means that many acts of the EU Institutions go unchecked, especially legislative acts. Overcoming gaps of legal protection? Many loose ends still exist in the complete system of legal remedies provided for by the EU Treaties. Procedures are either not available or lack effectiveness in practice. In order to overcome gaps in the system of legal protection, the Court of Justice has mainly
20. European Union Copper Task Force, C-384/16, paras 116-117. 21. Ibid., para. 111. 22. Outcome of a search performed on the Curia website, using the following parameters (Documents = Notices published in OJ : Cases brought; Period or date = "Date of the lodging of the application initiating proceedings"; period= "from 01/01/2019 to 31/12/2019"; Procedure and result = "Reference for a preliminary ruling"). The search generated 604 documents, which were subsequently manually scanned for validity questions. 23. To give an idea, in 2019 the Belgian Constitutional Court, which deals solely with judicial review of acts of the various Belgian legislators, issued 78 judgments in direct actions brought almost exclusively by private applicants. An appetite to challenge legislation thus exists, but apparently not for challenging EU (legislative) acts. See www.cons-court.be
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effective or to produce purely symbolic results. Thus, while the creative use of procedures might be a necessity in some instances, it should be done with moderation and for a period as short as possible. This means that a more general adaptation should follow quickly. The same goes by the way for the Article 47 Charter approach: once a gap has been overcome in a particular case, the problem has been identied and initiatives should be taken to rectify the situation. Parties cannot be expected to invent the same remedy over and over again.
adopted two strategies. On the one hand, it maximises the potential of the existing procedural framework through creative use of existing procedures. On the other hand, it made it absolutely clear that Article 47 of the Charter can function as a direct source for a remedy if no remedy is available under national or EU law. While these strategies allow for quick xes to imminent problems, it is not a way of providing effective legal protection in the long run. First, there are multiple problems with the use of these strategies. Parties do not have access to an actual remedy but have to create one for themselves. Then they have to hope that the court to which they have applied for the remedy goes along with it. While this is surely an interesting model from an academic perspective, it is problematic to rely on it as the ultimate guarantee for the completeness of a system of legal protection. Moreover, while the Court of Justice is quite comfortable with fashioning out new remedies, many national courts are not. It remains to be seen how easily national courts can be convinced to accept a case for which they have no jurisdiction on the basis of their national procedural framework. Finding legal protection might then be a question of luck, and thus arbitrariness. This is not effective judicial protection.
Second, creative use of procedures and Article 47 of the Charter cannot solve all problems. A good example is the problem of violations of EU law by last instance courts. At this moment in time, the EU Treaties do not provide for a review mechanism that allows the European Union to rectify these violations of EU law. A solution has been found for now in the form of the infringement procedure. It is, however, not a very effective solution and risks being rather a symbolic gesture. It would, for example, not be able to remedy the damaging effects of the Weiss judgment of the Bundesverfassungsgericht. Article 47 of the Charter is also not very helpful in this regard, as it is difcult to see how the Court could build a review mechanism directly on the basis of this provision, both intellectually and politically.
The creative use of procedures brings about a new problem for every problem solved. While issues of jurisdiction could still be put aside as purely institutional discussions, the creation of new problems of legal protection is an important concern. Moreover, turning procedures away from what they were originally intended for may cause them to be less
Creative use of existing procedures and Article 47 of the Charter thus have their limits, as appears as well in relation to securing a higher level of legal protection of private parties against EU actions. The Court has repeatedly stated that it considers itself bound by the conditions laid down in Article 263 TFEU by the drafters of the Treaties. While
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ture should evolve. This might even consist in rearranging the relationship between the CJEU and the national courts altogether. National courts are after all an important part of the EU’s system of legal protection, yet they are only loosely connected to the EU level and its judiciary via a procedural mechanism. A complete and coherent system of legal protection might perhaps require a bit more, namely common structures in which a meaningful judicial dialogue can take place (24). Exciting times are ahead of us!
one can disagree with that assessment, banging on that door will not make it change its mind. The way forward The making up of solutions as we go alongapproach can only do so much. A more durable x of the system of legal protection appears to be necessary. One will then look immediately into the direction of a Treaty amendment. A word of caution must be given, however. In the past few years, we have witnessed bigger and smaller amendments of the system of legal protection, including
A more durable fix of the system of legal protection appears to be necessary Treaty amendments. In nature, however, these amendments did not differ so much from the methods described above. They were quick xes of particular problems, without a holistic approach to the functioning of legal protection in the European Union. The results have also not been entirely satisfactory and new plans are already in the making for more quick xes. In light of the many outstanding issues, of which only a handful were described above, the European Union, as a Union based on the rule of law, needs to do better than this. It requires a proper reform of the system of legal protection, based on a broad discussion on the direction in which its remedial architec24. Cf. J.H.H Weiler and D. Sarmiento, ‘The EU Judiciary After Weiss - Proposing a New Mixed Chamber of the Court of Justice’, EU Law Live, 1 June 2020.
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Governing a pandemic through soft law: challenges for judicial review Dolores Utrilla
1
The use of soft law instruments has proven to be crucial for reacting in an expeditious and exible fashion to the fast-moving challenges posed by the crisis. It has been extremely useful to introduce exibility in the interpretation and application of pre-existing legal rules, as well as to steer and coordinate the conduct of public and private actors. It goes without saying that these functions are key in view of the mismatch between the ordinarily applicable (binding) rules and an emergency situation in which all actors in society are involved in managing, across borders and areas of activity.
1. Soft law and the COVID-19 crisis To a very large extent, both the EU and the Member States are dealing with the coronavirus crisis through soft law instruments, that is, rules of conduct which, in principle, have no legally binding force but which nevertheless may have ‘practical’ effects (2). Only a few examples at the EU level need be mentioned, regarding, inter alia, coordination of economic responses to the crisis, management of clinical trials, restrictions on non-essential travel, temporary exibilisation of State aid rules, relaxation of banking supervision standards, dividend distribution policies for credit institutions, moratoria in loan repayments, progressive lifting of containment measures, safeguarding health in air travel, economic recovery in the tourism and transport sectors, and the use of mobile apps to ght the spread of the pandemic. At the national level, public authorities have used guidelines and recommendations extensively to provide advice and guidance to citizens, undertakings, and public authorities, mainly regarding health protection measures.
Yet, this unprecedented large-scale and detailed use of soft law, a legal tool suffering from important legitimacy and accountability drawbacks, warrants a renewed debate on its legal framework within the European legal space, as already suggested by some prominent scholars (3). One of the main issues in this regard is the reduced degree of justiciability of soft law measures, as manifested primarily (though not only) in the difculties to bring them be-
1. Dolores Utrilla is Assistant Editor at EU Law Live and Associate Professor at the University of Castilla-La Mancha. She is a co-author of the books ‘Social rights in Europe in an Age of Austerity’ (Civitarese & Halliday eds., Routledge 2017) and ‘Good Administration and the Council of Europe: Law, Principles and Effectiveness’ (Stelkens ed., OUP, on press). 2. F. Snyder, ‘The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques’, The Modern Law Review, 1993, Vol. 53, issue 1, pp. 19-54. 3. O. Stefan, ‘COVID-19 Soft Law: Voluminous, Effective, Legitimate? A Research Agenda’, European Papers, 2020, pp. 1-8.
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fore courts. These obstacles are apparent when considering the rules and the case law governing the admissibility of actions against soft law instruments before both national courts (section 2 below) and EU Courts (section 3 below).
2. Actions against national soft law measures Overall, access to judicial review before national courts is possible in respect of soft law instruments adopted by national administrations, yet with rather more difcult conditions to meet than when it comes to ordinary – hard law – instruments, and with important divergences between Member States.
As will be argued later (section 4 below), this state of affairs is thoroughly dysfunctional if it is to be applied to a scenario such as the one arising from the COVID-19 outbreak, where soft law, even though it lacks legally binding force, is clearly leading to other kinds of legal (and not only practical) ef-
Earlier this week, the Court of Justice of the EU made a research note drafted by its Directorate-General for Library, Research and
Soft law instruments are giving rise to legitimate expectations and conditioning the way in which public and private actors behave in a landscape governed by scientific and economic uncertainty
The unprecedented massive and detailed use of soft law warrants a renewed debate on its legal framework within the European legal space
Documentation publicly available (4). It contains the results of a comparative study on the admissibility of court actions brought against soft law instruments in 13 Member States, identifying three patterns in this regard.
fects. To quote just some of them, soft law instruments are apparently giving rise to legitimate expectations and conditioning the way in which public and private actors behave in a landscape governed by scientic and economic uncertainty. The positive note is that, for that very reason, the current developments in soft law governance may represent an unparalleled opportunity to rethink the balance between non-binding instruments and effective judicial protection.
In most EU countries, national courts tend to consider actions against soft law instruments as inadmissible. However, in most jurisdictions, reviews of the legality of soft law instruments is allowed in exceptional cases, es-
4. Court of Justice of the EU, Research note on admissibility of court actions against soft law measures, June 2017.
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ver, it must be noted that this is subject to some exceptions in Spain, where both the Supreme Court and the Constitutional Court have allowed direct actions against soft law measures in some exceptional cases, based on the actual substance and legal effects of such measures (5).
pecially when courts regard those instruments as ‘disguised’ legislative or administrative decisions applicable to individual cases. National courts of these countries (Belgium, France, Germany, Italy, Latvia, Romania, the Slovak Republic, and Sweden) take into account not the name or form of the instrument, but its content and scope. Accordingly, those courts declare admissible direct actions brought against ‘soft’ law instruments having binding legal effects vis-à-vis individuals or third parties. Overall, this relaxation of the admissibility criteria for the admissibility of actions against soft law measures is based on the need to ensure effective judicial protection of their addressees.
3. Actions against EU soft law measures Insofar as they are adopted by EU institutions, bodies, and agencies, EU soft law instruments can be reviewed only by the Court of Justice of the EU, and not by national courts (Foto-Frost, C-314-85). However, direct actions for annulment are, in principle, excluded, save in exceptional cases (a). A somewhat more conducive scenario arises as regards indirect review via the preliminary ruling procedure (b).
By contrast, in common law countries (Ireland and the United Kingdom) there is no a priori general prohibition of direct actions against soft law instruments. Courts tend to render them as admissible, but their approach is essentially the same as the one referred to in respect of the rst group of countries: the courts’ assessment focuses on the substantive effects of the relevant soft law instrument on the legal situation of the person concerned, so as to guarantee his or her effective judicial protection.
Article 263 TFEU excludes recommendations, opinions, and any other acts not intended to produce legal effects vis-à-vis third parties from the enumeration of acts that can be subject to an action for annulment before EU Courts.
Lastly, according to the 2017 research note, administrative courts of other countries, such as the Netherlands and Spain, do not admit direct actions against soft law instruments, but it is nevertheless possible for them to indirectly review the legality of such instruments in the context of actions against challengeable (hard law) acts implementing them (or even departing from them). Howe-
In spite of the wording of this provision, in some exceptional cases (mostly related to EU external action and trade), the CJEU has admitted direct actions against non-binding measures. It has done so on the basis of the so-called ERTA test (C-22/70), under which ‘an action for annulment must be available in the case of all measures adopted by the institutions, whatever their nature or form,
(a) Actions for annulment
5. L. Arroyo & J.M. Rodríguez de Santiago, ‘European and domestic soft law within Spanish administrative law’, 2/20 Preprints series of the Center for European Studies Luis Ortega Álvarez and the Jean Monnet Chair of European Administrative Law in Global Perspective, 2020.
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which are intended to have legal effects’. The presence of ‘legal effects’ is a matter that must be determined taking into consideration the wording and context of the act, its substance, and the intention of the author.
non-binding instruments have legal effects whenever they are produced in breach of EU rules on distribution of powers. However, more recently the Court of Justice has made clear that the ERTA test must not be seen as a tool for the exibilisation of the admissibility requirements under Article 263 TFEU, but rather as a mechanism to apply this provision in its strict terms. It follows from Belgium v Commission (C-16/16 P) that the fact that a Commission recommendation gives rise to ‘indirect legal effects’ according to the Grimaldi judgment (C-322/88) is not enough to warrant direct judicial review against such non-binding instrument. The Court of Justice therefore upheld the General Court’s view (T-721/14) that indirect effects as described in Grimaldi are typical effects of recommendations and cannot justify a different reading of the clear text of Article 263 TFEU. This was without prejudice to the conrmation that ‘in exceptional cases, the impossibility of bringing an action for annulment against a recommendation does not apply if the contested act, by reason of its content, does not constitute a ge-
The application of these criteria led to the admissibility of the action in Germany v Council (C-399/12), a case concerning several non-binding recommendations made by the International Organisation of Vine and Wine. The Court of Justice found that an action for annulment was possible in this case because the recommendations at hand led to legal effects in the EU, in particular by reason of their incorporation into EU law by virtue of two Regulations. In a quite different context, the Court of Justice in Council v Commission (C-660/13) annulled a Commission Decision adhering to a non-binding international agreement, on account of the breach of the principle of distribution of powers in Article 13(2) TEU and the principle of institutional balance. Although the judgment does not explain why the action was considered admissible, it seems to rely on the Opinion of Advocate General Sharpston that
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ging such recommendations via the preliminary ruling procedure under Article 267 TFEU. The doctrine of the Court of Justice on the ‘complementarity’ of actions for annulment and preliminary rulings as tools for reviewing the legality of EU acts clearly resonates here. This case law, dating back to Les Verts v Parliament (C-294/83), sets out that preliminary references on validity of EU acts are an appropriate legal remedy for natural and legal persons who cannot challenge those acts through direct actions because they do not meet certain admissibility conditions.
nuine recommendation’. In other words, the ERTA test is relevant because it helps to differentiate ‘true’ soft law instruments (excluded from direct actions for annulment) from ‘disguised’ hard law measures (in respect of which such actions are admissible). (b) Preliminary rulings Can shortcomings in access to direct judicial review be compensated by means of indirect review under the preliminary ruling procedure? This possibility is open in view of the wording of Article 267 TFEU, which confers on the Court of Justice jurisdiction to give a preliminary ruling on the validity and interpretation of all acts of the institutions of the Community without exception.
4. An opportunity to reshape the system? In view of the quantitative and qualitative importance of the use of soft law instruments in the context of the COVID-19 crisis, the described obstacles to judicial review may hamper the right to effective judicial protection to an extent unknown to date. The forecast worsens whenever the use of soft law instruments (and the resulting restrictions on judicial review) follows a phased pattern, with non-binding measures by national authorities relying directly on recommendations or guidelines issued by the EU institutions during the crisis.
In Grimaldi (C-322/88), the Court of Justice conrmed that the different wording of Articles 263 and 267 TFEU must be read as meaning that the limits to the acts subject to review according to the former do not apply under the latter. However, in so far as that case concerned a preliminary reference on interpretation, the Court of Justice claried solely the cases in which that kind of referral can be necessary when it regards nonbinding EU acts. The extent to which preliminary references on validity concerning EU soft law measures could or should be requested by national courts thus remained unexplained.
Taking this into account, and in the absence of a reform of Article 263 TFEU, it does not seem unreasonable to expect, rstly, that this phenomenon will have some kind of impact on the CJEU’s case law regarding the admissibility of actions for annulment against administrative action adopted in the form of non-binding instruments. At the very least, the likelihood of a rise in the number of attempts by affected parties to bring direct ac-
Many years afterwards, in Belgium v Commission (C-16/16 P), the Court of Justice, after rejecting the possibility of direct actions for annulment against ‘genuine’ EU recommendations, recalled that this does not preclude the possibility of indirectly challen-
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It does not seem unreasonable to expect that COVID-19 soft law has some kind of impact on the CJEU’s case law
to expect that challenges before national courts may give rise to a relevant number of requests for preliminary rulings on the validity of the underlying EU recommendations or guidelines. It remains to be seen whether and how the Court of Justice will actually make use of this mechanism to scrutinise EU soft law instruments. In spite of its potential lack of coherence from a systematic perspective (according to some authors (6)), this course of action would be worth exploring as it may be useful to compensate for the Court’s strict admissibility test when it comes to actions for annulment.
tions against soft law instruments will place the CJEU in an optimal scenario to revisit the Grimaldi and the ERTA doctrine. This would be in line with the solution suggested by Advocate General Bobek in his Opinion in Belgium v Commission: in view of a changing legislative landscape, marked by a proliferation of soft law instruments, access to the EU Courts should be adapted in order to respond to those developments, recognising the fact that there are norms generating signicant legal effects that nd themselves beyond the binary logic of binding/non-binding legal rules. In fact, this would not be contrary to Article 263 TFEU: it must be recalled that this provision excludes judicial review of acts without legal effects, which is quite different to excluding acts which, even lacking binding force, do have legal effects vis-à-vis third parties.
Thirdly, part of the soft law measures adopted by Member States in response to the COVID-19 crisis are in turn based on soft
Article 263 TFEU excludes judicial review of acts without legal effects, but not of acts which, even lacking binding force, do have legal effects vis-à-vis third parties
Secondly, in view of the steering function of many EU soft law instruments adopted in response to the COVID-19 crisis, and their subsequent reception by Member States through hard law measures, it is reasonable
6. Roberto Mastroianni, ‘What’s in a recommendation?’, Max Planck Institute Luxembourg for Procedural Law Research Paper Series, 2020, No. 2, pp. 129-142.
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law instruments adopted by the EU institutions, agencies, and bodies. This raises the question of whether such national nonbinding rules and/or decisions amount to measures adopted ‘in implementation of EU law’ and, therefore, whether they trigger the application of the Charter. That being so, this would offer the Court of Justice the opportunity to rule on whether the shortcomings under national law for bringing direct actions against domestic soft law measures are in accordance with the right to effective judicial protection under Article 47 of the Charter.
Do national soft law measures adopted ‘in implementation of’ EU soft law instruments trigger the application of the Charter?
As explained above, direct actions against EU soft law instruments before the CJEU are also quite restricted, which makes it unlikely for the EU judiciary to pull out from the Charter more stringent requirements for national courts than those applicable at the EU level. However, the potential effects of Article 47 of the Charter on the admissibility of national soft law measures before domestic courts cannot be ruled out at the outset. This will be particularly important if the Court of Justice decides to keep up its strict admissibility test regarding direct actions for annulment at the EU level. As in that situation the main way of access to judicial review that remains would be the preliminary ruling procedure, not exploring the possibility of forcing Member States to soften their own requirements for admissibility of direct actions against national soft law measures based on EU non-binding instruments would lead to a double obstacle to judicial review and, thereby, to a black hole in the justiciability of a large part of the measures adopted during the ongoing crisis.
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News Highlights Week 8-12 June 2020 The Commission’s long-term budget proposal and the EU recovery plan: dissecting the jigsaw puzzle Monday 8 June by Dolores Utrilla READ MORE ON EU LAW LIVE
The European Commission’s post-pandemic economic recovery plan includes a revision of the current and future EU budgets (MFF), a proposed European Recovery Instrument, an amended Own Resources Decision proposal, a future proposal for new own resources and proposed amendments to sectoral legislation. Political agreement is aimed within the European Council by July.
New prolongation of Polish credit union liquidation scheme approved Monday 8 June
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The European Commission has approved, for the tenth time, the renewal of a Polish scheme aimed at restructuring credit unions until 15 July 2021, nding no incompatibility with State aid rules.
Commission issues supplementary Statement of Objections on suspected ‘pay-for-delay’ pharmaceutical agreement Monday 8 June
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In the context of an ongoing investigation under EU competition law rules, the European Commission has sent a supplementary Statement of Objections to Teva and its subsidiary Cephalon concerning their patent settlement agreement, complementing and clarifying its assessment of the parties’ conduct as a restriction of competition ‘by object’.
Ombudsman finds no maladministration in how EMA handled medicine authorisation Monday 8 June
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The European Ombudsman has found that there were no undue delays in how the European Medicine Agency (EMA) handled a request to authorise a medicine used to treat cystic brosis.
New pending preliminary reference on effective judicial protection and the Disciplinary Chamber of the Polish Supre- EU-Belarus Visa Facilitation Agreement approved by Council Decision me Court and published in the Official Journal
Tuesday 9 June
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Tuesday 9 June
A request for a preliminary ruling made by the Disciplinary Court of the Bar Association was published concerning a case on procedural guarantees in national proceedings on the subject of the disciplinary liability of Polish and foreign lawyers registered with a Bar Association, seeking an interpretation of the scope of the Services Directive and whether it applies; whether the Disciplinary Chamber of the Polish Supreme Court is ‘an independent and impartial tribunal’, and how to deal with the case where no right of appeal is possible.
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The EU-Belarus Visa Facilitation Agreement, and a Council Decision approving it, were published in the Ofcial Journal. The Agreement makes it easier in terms of documentation and cost for Belarusian citizens to acquire visas of 90 days to stay in the European Union. It is expected to enter into force in July 2020.
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France begins proceedings against European Chemicals Agency for breach of REACH Regulation
European Parliament calls for a new ambitious Disability Strategy
Tuesday 9 June
Tuesday 9 June
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France brought proceedings against the ECHA before the General Court seeking the annulment of the latter’s decisions on the substance evaluation of various types of aluminium. The General Court will rule on whether the ECHA violated the REACH Regulation and incorrectly interpreted the ECHA’s case law relating to additional information.
The European Parliament has passed a resolution calling on the Commission to develop a more ambitious Disability Strategy, that develops a common EU denition of disability, as the current one comes to an end. MEPs will vote on the priorities in the June plenary session.
ECtHR: Romania fulfilled its positive obligations under Article 9 ECHR regarding the provision of Kosher meals to Jewish prisoners
Scope of the right to complain to national electricity regulatory authorities: AG Pitruzzella’s Opinion
Tuesday 9 June
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The European Court of Human Rights has ruled that Romania did not breach the freedom of thought, conscience and religion (Article 9 ECHR) in how it provided kosher meals to Jewish prisoners, referring to the State’s margin of appreciation and holding that the solution provided by authorities was proportionate.
Tuesday 9 June
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AG Pitruzzella’s Opinion in Crown Van Gelder suggests that the Court of Justice rule that Article 37(11) of Directive 2009/72 should be interpreted as meaning that an end customer has a right to complain to the national regulatory authority against the national transmission system operator if not directly connected to that transmission system but is connected exclusively to a distribution system supplied by that transmission system and there is an interruption in the transmission of electricity in the transmission system supplying the distribution system to which the end customer is connected.
AG Hogan: free movement rights where national law criminalises cross-border but not ‘internal’ child abduction
First EU COVID-19 treatment application for conditional authorisation: European Medicines Agency
Tuesday 9 June
Tuesday 9 June
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AG Hogan’s Opinion in Staatsanwaltschaft Heilbronn considers that the Citizens Directive and nondiscrimination rules can apply to preclude national criminal law provisions criminalising cross-border child abduction (if those provisions do not apply similar penalties in an internal situation), proposing that the incompatibility can be avoided if courts carry out a caseby-case assessment of the circumstances of the case.
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The European Medicines Agency received the very rst conditional marketing authorisation application for a COVID-19 treatment.
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Gaz-System files proceedings against ACER for errors of law in Decision to dismiss appeal relating to web-based booking platform
Council conclusions on EU’s Digital Strategy
Wednesday 10 June
Wednesday 10 June
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Gaz-System has brought an action for annulment against a Decision of ACER’s Board of Appeals by which it rejected an appeal for annulment of a Decision relating to the selection of a web-based booking platform. It claims errors in law were committed with regard to Article 28(4) of Regulation 2019/942, Article 15 TFEU, and Article 41 of the Charter, among others.
The Council of the EU has adopted conclusions on the EU’s Digital Strategy on a broad range of issues including connectivity, the digital market, 5G, articial intelligence, cybersecurity, the impact of COVID-19, disinformation, taxation and green digital developments.
AG Kokott’s Opinion on the requirements for adoption of unilateral protective measures under the Plant Protection regulation
European Central Bank: 2020 Convergence Report on progress towards euro adoption for EU countries
Wednesday 10 June
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AG Kokott has proposed in her Opinion in Union des industries de la protection des plantes that the Court of Justice rule that the communication of a measure pursuant to Article 5 of Directive 2015/1535 constitutes ‘ofcially informing’ in light of the Plant Protection Regulation, if the referring court examines all communications and if the Member State can assume that the Commission has understood it in that sense, thus allowing MS to pursue unilateral protective measures in so far as they comply with that requisite.
Court of Justice quashes General Court’s judgment and grants compensation for non-material damages arising from a recruitment procedure Wednesday 10 June
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In its judgment in Schokker v EASA, the Court of Justice has reversed a General Court judgment that dismissed a request for non-material damages suffered by the applicant in an EASA recruitment procedure, ruling that the interpretation of the General Court is contrary to the right to an effective remedy of Article 47 of the Charter.
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Wednesday 10 June
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The ECB has published its biennial Convergence Report, assessing the economic convergence of the seven non-euro area EU Member States, concluding that mixed progress has been made since 2018 towards euro adoption, with important steps taken to address scal imbalances.
Encryption: a double-edged sword – EU law protections simultaneously impeding cross-border serious crime investigations? Thursday 11 June by Anjum Shabbir READ MORE ON EU LAW LIVE
Encrypted data in the context of serious cross border crime impedes criminal investigations carried out to achieve the EU objective of an area of freedom, security and justice, as noted by the second joint report of Europol and Eurojust, precisely due the paradoxical role encryption plays in protecting against infringement of the rights not to incriminate oneself, to private life, and data protection, and there may be a need for EU-level balancing of these interests.
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Court of Justice: the prohibition of discrimination on the grounds of nationality (Article 18 TFEU) does not apply to an insurance contract limiting the territorial scope of its coverage
Court of Justice: State aid rules do not apply to health insurance bodies operating under State supervision in the context of solidarity-based social security schemes
Thursday 11 June
Thursday 11 June
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The Court of Justice ruled in Grand chamber case RB v TÜV Rheinland LGA Products GmgH and Allianz that insurance covering the civil liability of manufacturers of medical devices is not governed by EU law, and that the facts of the main proceedings show no cross-border link which may trigger free movement provisions. Article 18 TFEU was held not to apply to the case.
In Grand Chamber joined cases Commission and Slovak Republic v Dôvera zdravotná, the Court of Justice quashed a General Court judgment conrming its previous case law regarding the inapplicability of State aid rules to health insurance bodies operating under State supervision in the context of a social security scheme that is pursuing a solidarity-based social objective.
ECtHR: criminal conviction of activists for boycotting Israeli products breaches freedom of expression
Collaboration between Fundamental Rights Agency and EU Border Agency Frontex: developing fundamental rights monitors
Thursday 11 June
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Thursday 11 June
In Baldassi v France, the ECtHR ruled that the criminal conviction of activists involved in a campaign boycotting Israeli products was in accordance with the principle of criminal legality in Article 7 ECHR, but breached the applicant’s freedom of expression in Article 10 ECHR.
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Frontex and FRA have entered into an agreement for human rights monitoring and training to be carried out in the light of Frontex’s border operations, and ahead of the deployment of its Border and Coast Guard standing corps next year.
Protection under the Habitats Directive can extend to specimens leaving their natural habitat that stray into human settlements, Court of Justice rules
Scope of the Commission’s duty to state reasons in competitive recruitment procedures and limits of ex post motivation: Court of Justice’s ruling
Thursday 11 June
Thursday 11 June
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The Court of Justice has conrmed in its ruling in Alianța pentru combaterea abuzurilor v TM and Others that the rules in the Habitats Directive apply to specimens that leave their natural habitat and stray into human specimens, interpreting the term ‘range’ as including all areas that the species crosses.
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The Court of Justice in Commission v Di Bernardo (C114/19 P), an appeal against the General Court’s judgment in Di Bernardo v Commission (T-811/16), the Court of Justice has ruled that the General Court was right in nding that the selection board was not justied in merely providing only a summary statement of reasons even for the initial rejection of Mr Di Bernardo’s application.
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Brompton Bicycle copyright case: Directive 2001/29 applies to shape based on technical result if it is also an original work resulting from an original creation
Commission: Recommendation for partial and gradual lifting of travel restrictions and Guidance for resuming visa operations
Thursday 11 June
Friday 12 June
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The interpretation of Directive 2001/29 which harmonises certain aspects of copyright rights was given by the Court of Justice in Brompton Bicycle (C-833/18). In particular, it ruled that Articles 2 to 5 can confer copyright protection on a product that has a shape which is partly necessary to obtain a technical result if it is also an original work resulting from an intellectual creation, and the author used his creative ability in an original manner in choose that shape to reect his personality: it being for the national court to assess whether such originality existed.
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The Commission issued a Recommendation to Schengen Member States and Schengen Associated States to lift internal border controls by 15 June 2020 and to prolong the temporary restriction on non-essential travel into the EU until 30 June 2020. It also presented Guidance for a phased and coordinated return of visa operations back to normal, with the goal of ensuring that the resumption of visa operations abroad is well coordinated with the gradual lifting of the travel restrictions.
EU-Vietnam Free Trade Agreement published
Financial assistance to Greece: Eurogroup’s Statement and ESMA’s Independent Evaluation Report
Friday 12 June
Friday 12 June
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The EU-Vietnam Free Trade Agreement (signed on 30 June 2019), and a Council Decision (2019/753) to approve it on behalf of the EU, were published in the Ofcial Journal. The Agreement is a comprehensive trade agreement, described by the EU as the most ambitious such agreement with an emerging economy (and the second ASEAN country after Singapore). It establishes a free trade area, aiming to liberalise and facilitate trade and investment.
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Two important developments concerning nancial assistance provided by the EU to Greece took place: (i) the publication of an Independent Evaluation Report commissioned by the European Stability Mechanism’s (ESM) Board of Directors, and (ii) the Statement by the Eurogroup following its meeting to discuss Greece’s progress with reform implementation and its macroeconomic outlook (on the basis of the sixth enhanced surveillance report published on 20 May). Read more on EU Law Live
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Nº21 · JUNE 13, 2020
weekend
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Analyses & Op-Eds ECOFIN Report to the European Council on Direct tax Issues – still waiting for the OECD to move on…
Much ado about nothing: paid leave not in the scope of Directive 2003/88/EC is an issue for national regulation
By Ricardo García Antón
By José María Miranda Boto
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Analysis on the progress in tax regulation in light of the ECOFIN Report to the European Council, which highlights achievements of the Croatian Presidency and upcoming roadmap. The analysis notes that what is missing in the Report is the emergence of a European voice in taxation and more specic compromise between Member States to achieve solidarity through tax measures.
Op-Ed on the Court of Justice’s recent ruling in Fetico that certain types of special leave under collective agreements (for marriage, birth of a child, hospitalisation, surgery, the death of a close relative, and the performance of representative trade-union functions) are not covered by the scope of Directive 2003/88/EC: the main lesson of the case is that EU Law, considering its scope, is not the answer to every national problem of labour law. This situation should be taken in consideration especially by the national legislature.
On exhumation: Strasbourg’s standards
Grand Chamber Judgment in Commission v Dôvera and Slovak Republic v Dôvera: The presence of for-profit companies in a compulsory health insurance scheme does not necessarily make the system at stake an ‘economic activity’ under EU Competition law
By Dolores Utrilla
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Analysis on the case law of the European Court of Human Rights regarding exhumation rights held by surviving relatives vis-à-vis the State and third parties, on the occasion of this week’s judgment in Drašković v. Montenegro. A case in which the ECtHR has explicitly found, for the rst time ever, that a request by a close family relative (such as a spouse) to exhume the remains of a deceased family member for transfer to a new resting place falls in principle to be examined under the right to private and family life, and that this triggers certain procedural positive obligations of the State in relationships between individuals.
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By Juan Jorge Piernas López
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Op-Ed on the Court’s Grand Chamber judgment, which provides some welcome clarications regarding the notion of ‘undertaking’ under EU competition law in the context of solidarity-based health insurance schemes, and conrms the discretion that Member States enjoy to organise their social security systems in so far as they observe the principle of solidarity as interpreted by the Court’s case law.
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Nº21 · JUNE 13, 2020
weekend
edition stay alert keep smart
Can Article 18 TFEU fill in gaps in the Treaties in the name of equality among Europeans? After RB (C-581/18), the answer is no By Daniel Sarmiento
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This Op-Ed analyses the recent ruling in RB (C-581/18), a case on the scope of application of Article 18 TFEU, which precludes discrimination on the grounds of nationality. The case stems from a damages claim of a victim with defective breast implants, who claimed damages from the manufacturer’s insurer. However, the insurance only covered harm that had occurred in France, and the victim was a German resident who underwent surgery in Germany.
Library - Book Review JORGE MARCOS RAMOS
By Miguel Sousa Ferro
Wolters Kluwer, 2020
READ ON EU LAW LIVE Firm Dominance in EU Competition Law: The Competitive Process and the Origins of Market Power
A review that considers this book to be visibly inuenced by an American-style approach to Antitrust scholarship, focusing predominantly on policy, and with a central thesis that ‘“analysing why the dominant rm comes into existence [i.e., achieves its dominance] is critical to assess the effects of unilateral rm behaviour under Article 102 TFEU”’. Not because the case law says it is – quite the contrary –, but because to do otherwise would lead to results the author deems undesirable’. Described as an important contribution and a must for anyone interested in lively debate about EU competition policy on unilateral anticompetitive practices, but without having persuaded the reviewer.
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