EU Law Live's ISSUE Nº1
The Week Y EAR 2 0 2 3
30 September - 3 November 2023
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IN-DEPTH: “Is this the End? – From the Polish Parliamentary Election to the Croatian HANN-INVEST case” Daniel Sarmiento and Sara Iglesias “QS (Case C-219/22): Enforcement of suspended sentences issued in another Member State. The Court clarifies the meaning of ‘non-interference’ under the Framework Decision on taking into account taking into account previous convictions” Leandro Mancano “Time to wake up for the sleeping drug industry: the General Court confirms that Teva and Cephalon’s modafinil pay-for-delay settlement agreement is contrary to Article 101 TFEU” Alma Dangy “Calculation of survivors’ pension in the context of the rules against overlapping of benefits of a different kind” (C-45/22, HK v. Service Fédéral des Pensions) Nicolas Langlois SYMPOSIUM ON THE AGENCIES OF THE EU: “EU Decentralised Agencies Engagement with European Non-Member States” Marko Milenković THE LONG READ: The Commission’s Proposal for a Directive establishing a European Disability Card: Is the Glass Half Empty or Half Full? Delia Ferri HIGHLIGHTS OF THE WEEK
The Week
ISSN: 2695-9593 2 0 2 3 © A L L R I G H T S R E S E RV E D
IN-DEPTH
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“Is this the End? – From the Polish Parliamentary Election to the Croatian HANN-INVEST case” Daniel Sarmiento and Sara Iglesias October 2023 will most likely be remembered by the outbreak of war in the Middle East and its catastrophic consequences. This last month however saw another historic development, this time bringing some good news
to the front cover of European newspapers. The long-lasting Rule of Law crisis in the European Union seems to have arrived at a turning point with the Polish parliamentary election of 15 October, ‘the most consequential election in Poland since 1989’, where the Law and Justice party (PiS) lost its majority to form a government.
The eight years of the PiS in power have been marked by a continuous succession of notorious developments which cannot possibly be reflected in these short lines, and which have been epitomised in the legislation that has
radically undermined the judicial independence of Polish courts. This has led to years of intense judicial battles
before national courts, the Court of Justice of the EU and the European Court of Human Rights. Similarly, the worrisome attempts to curtail democratic competition materialised in the adoption of legislation endangering
the principle of democracy –the so-called ‘Lex Tusk’– which led to a new infringement action by the European
Commission. The way that seemed to be paved towards POLEXIT has nevertheless now encountered a longawaited detour that may allow Poland to stay on track. The perspective of change opens a new chapter on the constitutional history not only of Poland, but of the European Union as a whole.
As it is well known, the Rule of Law crisis in Poland led to a groundbreaking case law by the Court of Justice
that inaugurated a new constitutional methodology of Treaty interpretation. The foundations of this new
methodological approach to the Treaties were laid down in the ruling in Associação Sindical dos Juízes Portugueses
– a case seemingly unrelated with the Rule of Law crisis – but with immense and long-lasting consequences. The interpretation of Article 19(1) TEU in that ruling opened up an avenue to apply the principle of judicial independence enshrined in the right to effective judicial protection in a transversal way to situations unrelated
to the scope of application of EU law, in the sense of Article 51(1) of the Charter of Fundamental Rights. This methodology, that remarkably resembles the incorporation doctrine through the due process clause of the fourteenth Amendment of the U.S. Constitution, is suitable to be expanded to other elements of the EU constitutional core contained in Article 2 TEU (see, e.g., here and here), this topic being in fact one of the crucial
constitutional questions pending before the EU Court. But whatever the fate of that open question, the Rule of
Law crisis has already produced an impressive number of landmark rulings and has accelerated the rhythm and
elevated the tone of the constitutional case law of the Court, fostering the identification of the EU constitutional core and its interrelation with the constitutional identity of the Member States, resoundingly consolidating the
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principle of primacy (see, just as examples, the Conditionality Regulation judgments; as well as the judgements in
Repubblika, RS; or in Commission v Poland – the “Muzzle Law” case). Procedurally, this new field of litigation has also entailed non-negligible transformations, buttressing infringement procedures and interim measures as well as giving rise to unprecedented challenges for the application of the criteria of admissibility of preliminary rulings and the definition of what is an (independent) court or tribunal for the purposes of Article 267 TFEU.
Do the results of the Polish election mark the beginning of the end of the Rule of Law crisis? It is probably early
to say. The resilience of the Hungarian illiberal government as well as the result of elections in other Member States, not to speak of the fact that the PiS is still the largest party in the Sejm, would make it certainly premature
to speak of an end of the crisis era. However, the turning of the page in Poland opens a new chapter in the constitutional history not only of that Member State, but of the entire European Union. As Bobek, Bodnar, von
Bogdandy and Sonnevend had forecasted in a visionary book entitled Transition 2.0 –Re-establishing Constitutional
Democracy in EU Member States, the way forward in view of a government change in Poland creates a wide array of challenges which may partly also stem from EU law itself. A transition or re-liberalisation is no longer an
exercise of scholarly imagination, and is not, at any rate, a purely internal situation. Very real practical implications will show (if they do), as soon as a new coalition solidifies in government. The questions to be tackled are topical
questions at the heart of transitional law, and are also now, after the transformation that the Rule of Law crisis has entailed in the EU legal order, under the scope of EU law and under the jurisdiction of the EU Court: the
effects of judgments issued by judges appointed through the problematic legislation, their fate in the judiciary and,
likely, the ways to do away such legislation and with the structural changes operated during two legislative periods. Against this background, the challenges also spread out to the future of the judicial application of Article 19 TEU (and of Article 2 TEU) at EU level. It is still uncertain how the Court of Justice will continue the jurisprudential development of these provisions outside the quite particular situations directly connected to wider Rule of Law backsliding, with a currently growing number of cases pending concerning many different Member States.
A paradigmatic example of this uncertainty has recently come to the fore with the recent Opinion of Advocate
General Pikamäe of 26 October 2023 in HANN-INVEST (joined Cases C-554/21, C-622/21 and C-727/21), a
first case concerning the application of Article 19(1) TEU coming from Croatian courts, which will be decided by
the Grand Chamber. This time, the case concerns a system of registration of second instance judgments whereby a ‘registration judge’ who does not form part of the judicial panel has the power to refuse registration of rulings for reasons connected to the coherence with previous case law. Only when that registration takes place can a case be considered closed.
Paradoxically, this preliminary reference, focusing on the compliance with EU law of an internal mechanism
designed to guarantee jurisprudential coherence, is putting the Court of Justice on the spot regarding the
preservation of the consistency of its own case law regarding the admissibility of preliminary questions on judicial independence. Based on the consolidated approach of the Court to the interpretation of Article 19(1) TEU, the
Advocate General acknowledges the jurisdiction of the Court, but embarks on yet another attempt at restricting
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the involvement of the Court with questions connected to judicial independence through the tightening of the
criteria on admissibility. After Miasto Łowicz and Maler und Anstreicher admissibility had lost most of its filtering
capacity as shown by subsequent litigation, where many questions had been crafted as in limine litis. Indeed, the admissibility of questions in limine litis, as subsequently interpreted by the Court, means that the relevance of
the preliminary ruling of the Court to the main proceedings is measured not only against the merits of the case. It is also possible to find admissible questions on preliminary procedural questions for which the interpretation
of EU law may prove necessary. This is of course of particular relevance when it comes to the implication for
national proceedings of the interpretation of the requirements of the principle of effective judicial protection, including judicial independence. At this point, the Advocate General proposes to narrow down the approach to ‘in limine litis admisibility’ by noting that ‘…if the Court accepts that a question may be referred to it concerning a
provision of EU law in order to resolve a question of national procedural law, so that the main proceedings may be conducted in compliance with EU law, it is only with a view to a decision by the referring court as to the substance of a dispute in the main proceedings relating to EU law’ (point 42).
The Croatian case, read in the light of the result of the Polish election, leads to an important reflection: the
transformations brought about by the case-law which originated in the Polish rule of law crisis go well beyond
that crisis, and imply a very intense involvement of the EU Courts with national rules of procedure and judicial organisation, traditionally reserved for the Member States.
From this point of view, the proposal of the Advocate General invites the Court to reflect on the casuistic and quite complex approach to admissibility in this field in a historical moment when the Rule of law crisis could have
reached an inflection point. But the proposal must be very carefully assessed. It will not only entail a departure
from the position adopted by several recent Grand Chamber rulings (as the Advocate General acknowledges, in points 42 and 43 of the Opinion). It would also do away with the essential and consolidated understanding
that procedural decisions are, in themselves, judicial decisions (and quite crucial ones) for which an answer of the
Court may be necessary. This would not only limit the possibilities of the Court to give a ruling related to the interpretation of horizontal procedural EU law and principles; but it would also inevitably open the Pandora’s
box as to which types of decisions appertain to the merits and to procedure in the different national legal systems (e.g., is a decision on recusal of a judge a decision on the merits, or in limine litis?). It would also entail a double
cumulative admissibility standard adding to the ‘relevance’ criterion a separate requirement consisting in a secondary and indeterminate connection to the merits of a case, which will find application, in particular, in the judicial independence related litigation (but not only).
In Associação Sindical dos Juízes Portugueses the Court decided to assume a crucial task, embracing a role as
ultimate guardian of one of the essential principles of the Rule of Law that underlie the integration process. To consistently undertake that task, the case law of the Court has demonstrated that its jurisdiction related to
national judicial independence cannot be tied to preconceptions of whether a situation is part of a systematic Rule
of law degradation chain. For the Court involvement in policing that essential tenet of the EU constitution may
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a problematic element may have escaped internal and international scrutiny for its historical embeddedness in an otherwise functional system. From this point of view, recalibrating admissibility of procedural questions to the need to prove a material connection with EU law on the merits would suppose a restrictive step which would no
doubt mark a retreat of the Court, since the contentieux of judicial independence is paradigmatically marked by the prevalence of its internal procedural component.
Daniel Sarmiento is Professor of EU Law at the Universidad Complutense of Madrid and Editor-in-Chief of EU Law Live. Sara Iglesias is Professor of EU Law at the Universidad Complutense of Madrid and In-Depth/Weekend Edition editor at EU Law Live.
SUGGESTED CITATION: Sarmiento, S. and Iglesias, S,; “Is this the End? – From the Polish Parliamentary Election to the Croatian HANN-INVEST case”, EU Law Live, 31/10/2023, https://eulawlive.com/insight-is-this-the-end-from-the-polish-parliamentary-election-to-the-croatian-hann-investcase-by-daniel-sarmiento-and-sara-iglesias/
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“QS (Case C-219/22): Enforcement of suspended sentences issued in another Member State. The Court clarifies the meaning of ‘non-interference’ under the Framework Decision on taking into account taking into account previous convictions” Leandro Mancano Introduction On the 5th of October, the Court of Justice delivered an important judgment in QS (Case C-219/22). The ruling
followed a reference made by the District Court of Nesebar, in Bulgaria. The case raised important questions
concerning the application of the principle of mutual recognition and territoriality in criminal law. This Op-Ed argues that the ruling correctly addresses the main issue under consideration, and highlights potentially significant differences with the Opinion of the Advocate General (AG). Background The case mostly revolved around Article 3 of Framework Decision (FD) 2008/675/JHA. Article 3(1) FD establishes that, in the course of criminal proceedings against a person in a Member State, previous convictions
issued against the same person for different facts in other Member States must be taken into account in a manner
equivalent to that provided for previous national convictions. That obligation shall apply at the pre-trial stage, at
the trial stage itself and at the time of execution of the conviction of the second proceedings. However, Article 3(4)
FD states Article 3(1) ‘shall not apply to the extent that, had the previous conviction been a national conviction
of the Member State conducting the new proceedings, the taking into account of the previous conviction would, according to the national law of that Member State, have had the effect of interfering with, revoking or reviewing the previous conviction or any decision relating to its execution’.
QS is a Romanian citizen residing in his country of nationality. He was sentenced to 18 months of imprisonment by the Appeal Court of Cluj in Romania, with the execution being suspended for two years (i.e. until 24 June
2021). In 2022, he was convicted to three months of imprisonment by the referring court for another offence, committed while the probation period was still ongoing. While Article 8 of the Bulgarian Criminal Code mirrors Article 3(1) FD, its Article 68(1) stipulates that ‘If, before the end of the probation period determined by the
court, the sentenced person commits another intentional offence […] for which a custodial sentence is imposed
[…] even after the probation period, he or she must also serve the suspended sentence’. The referring court took the view that, on a combined reading of Articles 8 and 68(1), it must enforce the suspended sentence issued by the Romanian court.
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Against that background, the District Court of Nesebar raised the following question: must FD 2008/675/JHA
be interpreted as precluding national legislation, which provides that the national court seised of an application
for execution of the sentence imposed by a previous conviction handed down by a court of another Member State may, for that purpose, alter the arrangements for executing that sentence by ordering its actual execution?’ The Advocate General’s Opinion AG Pikamäe started his analysis with a systemic consideration related to the FD. Taking into account previous convictions, issued in another Member State against the same offender, is key to the objectives of the Area of
Freedom, Security and Justice (AG’s Opinion, point 29). While the rule, in the framework established by the FD, is that such previous convictions must be taken into account, there are also exceptions aimed to safeguard
the sovereignty of Member States and ensure consistency and coordination across the different criminal justice
systems (AG’s Opinion, point 30). In general, the principle is that convictions previously handed down ‘must be taken into account in the terms in which they were handed down’ (C-171/16, Beshkov, para. 37). The principle of equivalence requires that Member States attach to the previous conviction the same legal effects that they would
to national convictions. However, Article 3(4) FD established the principle of non-interference. The AG also
pointed to recital 6 FD, which clarifies that the FD ‘does not aim at the execution in one Member State of judicial decisions taken in other Member States’. Furthermore, pursuant to recital 14, a cumulative sentence for several
criminal offences constitutes an ‘interference’, where the first sentence has not yet been executed or has not been transferred to another Member State for the purpose of its execution.
According to the AG, the principle of non-interference ‘guarantees respect for the right of the Member State
of conviction to execute convictions handed down by its courts, on its territory and in accordance with the arrangements provided for in its national law’ (AG’s Opinion, point 50). The possibility to transfer the sentence to another Member State, which in this case would be possible via FD 2008/947/JHA on mutual recognition
of judgments imposing non-custodial penalties (or probation measures FD), ‘rests on a voluntary and sovereign
decision of the Member State which handed down the conviction at issue’ (AG’s Opinion, point 52). The Court already found that FD 2008/675/JHA precludes the Member State of the second proceedings from ‘alter[ing]
… the arrangements for execution’ of the sentenced handed down in another Member State’ (C-171/16, Beshkov, para. 47). The AG observed that a revocation of the suspension as prospected by the referring court would fall
under that category. Nothing in the file of the case suggested that the Romanian sentence had been executed in full.
The AG therefore turned his attention to the other scenario in which the execution of the suspended sentence
would be allowed: namely, in case the judgment had been transferred by Romanian authorities to Bulgaria
pursuant to FD 2008/947/JHA. The instrument aims to increase the chances of reintegration of the convicted
person, by enabling the execution of the sentence in their state of lawful and ordinary residence. Considering that, in this case, the person would have been transferred from –rather than to– their state of residence, the use of that
FD would be problematic. Importantly, the AG also referred to FD 2008/909/JHA. The measure too pursues
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reintegration, by establishing a system of transfer of judgments imposing a custodial penalty from the Member State of conviction to the Member State of nationality or residence of the person, so that the latter can serve the sentence there.
The Court’s judgment The Court broadly followed the AG’s Opinion. It drew an important distinction between executing judicial
decisions taken in other Member States, and attaching to other Member States’ convictions legal effects equivalent to those attached to national convictions (Court’s judgment, para. 33). Like the AG, the Court found that the situation of QS fell under the scope of application of the FD, and that in such circumstances the execution of the suspended sentence would amount to interference as defined in the FD. Where the first sentence has not executed in full, and the judgment has not been recognised or transferred, that sentence cannot be executed by the Member State of the second conviction. The judgment and the Opinion differ most visibly in the conclusions. While the
AG proposed that the question be answered in the sense that the FD precluded national legislation such as that under consideration, the Court found that the two were compatible provided that the first conviction has been
forwarded to and recognised in the Member State conducting the new criminal proceedings, in accordance with FD 2008/947/JHA. Furthermore, the Court made no reference to the FD on transfer of prisoners, a point that had been explicitly raised by the AG in his Opinion.
From taking into account to mutual recognition. Different shades of legal integration The Opinion and the preliminary ruling develop a logical interpretation of the FD. In this sense, the case emphasises the importance of distinguishing between two conceptual categories: mutual recognition and taking into account. Even though, back in 2000, the Council referred to the adoption of measures such as (future)
FD 2008/675/JHA as part of a plan of implementation of mutual recognition in criminal matters (OJ C 12, 15.1.2001, p. 10), the taking into account seems to express a different level of legal integration. The FD itself, at
recital 6, states that ‘In contrast to other instruments, this Framework Decision does not aim at the execution in
one Member State of judicial decisions taken in other Member States’ (emphasis added). This, coupled with the existence of other measures that do establish such a mechanism of execution in another Member State –such as
the FDs on the transfer of prisoners and on probation measures- makes the difference more apparent still. The interpretation espoused by the AG and the Court agrees with the spirit and the wording of the FD.
Admittedly, the AG’s and the Court’s framed their conclusions differently. However, that divergence is unlikely to have practical implications. The Court made the compatibility of the national law with FD 2008/675/JHA
conditional upon a specific circumstance: that is, the forwarding of the judgment via the FD on probation
measures. It is interesting to see that a finding of compatibility of a legal text with another one is tied to a ‘factual’ event –bearing legal implications, certainly, but not directly linked to the text itself.
The most interesting point of disagreement, paradoxically, concerns the two FDs that were not even part of the main question raised by the referring court. Unlike the Opinion, the ruling gave no consideration at all to the www.eulawlive.com
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objectives of the FD on probation measures. The Court also glossed over the fact that, although the question in
the reference framed the execution as an option left to the Bulgarian judge by its criminal code, the referring court itself explicitly took the view that its national law obliged it to execute that first sentence. Furthermore, the judgment
ignored altogether the Opinion insofar as the latter stated that ‘In the interest of the proper administration of
justice, it seems appropriate […] for the Court to draw the attention of the referring court to [the possibility of recognition and transfer] offered by Framework Decision 2008/909’ (AG’s Opinion, point 64). The reasoning and the conclusion of the Court are sound, but following the approach of the Opinion to certain details would have made for a better judgment.
Leandro Mancano is Senior Lecturer in EU Law, Edinburgh Law School, and the UK’s Deputy Contact Point for the European Criminal Law Academic Network (ECLAN).
SUGGESTED CITATION: Mancano, L.; “QS (Case C-219/22): Enforcement of suspended sentences issued in another Member State. The Court clarifies the meaning of ‘non-interference’ under the Framework Decision on taking into account taking into account previous convictions”, EU Law Live, 02/11/2023, https://eulawlive.com/op-ed-qs-case-c-219-22-enforcement-of-suspended-sentences-issued-in-another-member-state-the-court-clarifiesthe-meaning-of-non-interference-under-the-framework-decisio/
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“Time to wake up for the sleeping drug industry: the General Court confirms that Teva and Cephalon’s modafinil pay-for-delay settlement agreement is contrary to Article 101 TFEU” Alma Dangy On 18 October 2023, the General Court rendered its judgement in Case T-74/21 Teva Pharmaceutical Industries
and Cephalon v Commission and upheld the Commission’s infringement decision against generic manufacturer
Teva and originator manufacturer Cephalon, finding that the patent settlement agreement between the companies constituted restrictions ‘by object’ and ‘by effect’, thus infringing Article 101 TFEU. Background In 2005, Teva and Cephalon reached a settlement agreement. Under this agreement, Teva agreed not to
independently enter the modafinil sleep disorder drug market and refrain from competing with Cephalon in that same market. Teva also agreed not to challenge Cephalon’s patent rights on modafinil, most of which expired in 2005.
In its infringement decision, the Commission found that the parties’ patent settlement agreement infringed Article 101 TFEU because it delayed Teva’s entry into several modafinil markets and enabled Cephalon to continue
charging high prices even though the main patent on modafinil had long expired. In exchange for this delay, Cephalon made significant transfers of value to Teva through a comprehensive set of commercial transactions: Cephalon agreed to purchase a licence for Teva’s intellectual property rights in modafinil; A modafinil supply agreement was established, with Teva supplying Cephalon; Teva was granted a licence for clinical and safety data co-developed by Cephalon in Parkinson’s disease studies; An exclusive distribution agreement appointed Teva as the sole distributor for Cephalon’s modafinil products in the United Kingdom for five years; and
Payments were made to Teva to cover litigation costs. Teva was fined €30 million and Cephalon €30.5 million, and the duration of the infringement extended from the date of the agreement in 2005 until Teva’s acquisition of Cephalon in 2011. Contesting the Commission’s
decision, Teva and Cephalon brought an action before the General Court, putting forward four grounds of appeal.
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The General Court’s Judgement 1. Restriction of Competition ‘by Object’ The parties contended that each component of the settlement package had a plausible justification that didn’t
involve market-sharing, and argued that Teva’s early market entry was beneficial for competition. They asserted that the Commission incorrectly applied the two-part test fleshed out in Generics (UK) and Others (Generics (UK))
(C-307/18) –here, the Court ruled that value transfer settlements are ‘by object’ restrictions when (i) they lack reasonable explanation and (ii) show no pro-competitive evidence.
The General Court stated that a patent settlement is a restriction ‘by object’ when it is evident that the value transfers it provides serve no purpose other than the mutual interest of the patent holder and the generic company in avoiding competition on the merits. It then pointed out that concerns arise when a commercial transaction
offers the generic company advantages that would not be available under normal market conditions, either because the transaction would not occur or because it is unusually favourable. On this point, it was highlighted that, under normal market conditions, it is rare for a transaction to include non-competition and non-challenge clauses.
The General Court stated that where several commercial transactions are included in a settlement agreement
and are linked by a contractual relationship, these transactions are likely to form part of a ‘single package’. What
matters, eventually, is the net gain resulting from the transfers of value as part of the transaction as a whole. Confirming the Commission’s assessment, the General Court concluded that the main purpose of each commercial
transaction was to increase the value transferred to Teva and to persuade it to accept the non-competition and non-challenge clauses.
It went on to dismiss the claim that the agreement would have accelerated Teva’s independent entry into the market. The General Court observed that Teva had a concrete possibility of entering the modafinil market independently
in 2005, but that the settlement agreement delayed that entry by seven years, which enabled Cephalon not to
face competition from Teva during that period. In addition, Teva’s entry into the modafinil market from 2012
must not be regarded as an entry of an independent player in direct competition with Cephalon. This is because Teva’s planned entry was based on a licence granted by Cephalon. It also involved substantial royalties, amounting
to 10-20% of Teva’s net profits from the sale of all generic modafinil products, which made significant price competition between Teva and Cephalon unlikely. 2. Restriction of Competition ‘by Effect’ Although the settlement agreement was held to be a restriction ‘by object’, the General Court considered it
necessary to examine the ‘by effect’ plea appropriately. The General Court emphasised that restrictive effects, whether actual or potential, must be ‘sufficiently appreciable’. It highlighted the possibility of considering potential competition from a potential entrant, eliminated by the agreement, as well as the market’s structure.
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The General Court uphold the Commission’s assessment, confirming that Teva was a potential competitor of Cephalon on the modafinil markets when the settlement agreement was concluded. Consequently, the implementation of the settlement agreement had the effect of eliminating the potential competition that existed between Teva and Cephalon.
3. Justifications under Article 101(3) TFEU The General Court rejected the parties’ allegations of pro-competitive effects under Article 101(3) TFEU, confirming that the first condition was not met because the settlement agreement did not improve the production
or distribution of modafinil or promote technical or economic progress. As the four conditions of Article 101(3)
are cumulative, the General Court dismissed the appellants’ arguments relating to the other three conditions as irrelevant.
4. Fines Calculation Finally, the General Court upheld the Commission’s decision to depart from its previous fining methodology and
use the transfer value as the relevant basis for calculating the fine. In this case, it was impossible to attribute a concrete value to each element of the settlement agreement. The Commission was therefore entitled to set Teva’s
fine by reference to the fine imposed on Cephalon, particularly as the gravity and duration of the infringement were the same for both parties. What’s next? This case could serve as a wake-up call for the sleeping pill industry. However, it has been clear since the
Commission’s decision in Lundbeck (C‑591/16 P) that any transfer of value from the patent holder to a potential
generic competitor to resolve a patent dispute will undergo rigorous scrutiny and regulatory scepticism if it exceeds reasonable compensation for incurred expenses.
It is not yet known whether the parties will lodge an appeal with the CJEU. In the meantime, the Commission is conducting an investigation into Teva (AT.40588), including allegations of misuse of patent procedures and abuse of a dominant position under Article 102 TFEU.
Alma Dangy is an associate working for a law firm in Brussels and has an LLM from the College of Europe. SUGGESTED CITATION: Dangy, A..; “Time to wake up for the sleeping drug industry: the General Court confirms that Teva and Cephalon’s modafinil pay-for-delay settlement agreement is contrary to Article 101 TFEU”, EU Law Live, 03/11/2023, https://eulawlive.com/analysis-time-to-wake-up-forthe-sleeping-drug-industry-the-general-court-confirms-that-teva-and-cephalons-modafinil-pay-for-delay-settlement-agreement-is-contrary-to-article101-t/.
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“Calculation of survivors’ pension in the context of the rules against overlapping of benefits of a different kind” (C-45/22, HK v. Service Fédéral des Pensions) Nicolas Langlois On 12 October 2023, the Seventh Chamber of the Court of Justice delivered its ruling in the case of HK v. Service Fédéral des Pensions (C-45/22). The dispute pertains to the modalities of calculation of the amount of a Belgian
survivor’s pension in the context of the rules against overlapping with other pensions. It is particularly relevant since it presents the first opportunity for the Court to interpret Article 55(1)(a) of Regulation No 883/2004 on the coordination of social security systems.
In this case, the claimant received a retirement pension for his employment activities both in Belgium and Spain. Following the death of his spouse, who had worked and contributed in Belgium, Spain, and Finland, the claimant also applied for Spanish, Finnish, and Belgian survivor’s pensions. The central issue in this case revolves around the
calculation of the Belgian survivor pension. The national court questions whether Article 55(1)(a) of Regulation
883/2004 precludes national rules according to which the amount of a survivor’s pension is calculated by dividing the amount of income exceeding an overlapping ceiling of the various pensions by the number of survivor’s pensions that are subject to those rules.
Specifically, this judgment focuses on interpreting the phrase ‘the amounts of the benefit or benefits or other income, as they have been taken into account’ within Article 55(1)(a) of Regulation 883/2004. Article 55(1)(a) states, ‘[i]f the receipt of benefits of a different kind or other income requires the application of the rules to prevent overlapping
provided for by the legislation of the Member States concerned regarding two or more independent benefits, the
competent institutions shall divide the amounts of the benefit or benefits or other income, as they have been taken into account, by the number of benefits subject to the said rules.’
Firstly, the Court follows the opinion of Advocate General Rantos in considering that Article 55(1)(a), by the
phrase ‘as they have been taken into account’ leaves a margin of discretion to the Member States to determine how
to ‘take into account’ the amounts of the benefit or benefits or other income to be divided. The Court, therefore, rejects the applicant’s interpretation that the words ‘the amounts as they have been taken into account’ necessarily imply reference to the total amount of the benefits concerned, considering that this would render those words meaningless and would remove the margin of discretion which the Union legislature intended to confer on the
Member States. Notably, such an interpretation would have been more favourable to the applicant and, in general, to all workers who have exercised their right to free movement.
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Secondly, the Court emphasises that the purpose of Regulation 883/2004 is not to eliminate national rules against overlapping but to limit their effects when unfavourable to workers exercising their right to free movement. The
Court does not consider it particularly unfavourable if a Member State accounts only for the amount exceeding an overlapping ceiling for different pensions. Importantly, Article 55(1)(a) does not compel Member States to grant
the highest amounts. In the present case, the claimant receives a Belgian survivor’s pension due to the application of this provision. In contrast, a worker not exercising his or her right to free movement is not entitled to any benefits in such a situation.
In that regards, AG Rantos’ Opinion emphasised that the TFEU does not guarantee a worker that the extension
of his activities in more than one Member State or transfer to another Member State is neutral in social security terms. Thus, a national rule complies with Articles 45 and 48 TFEU if it is less favourable, as long as it does not
put the worker concerned at a disadvantage compared to those who carry out all their activities in the Member
State where it applies, or compared to those who were already subject to it, and if it does not simply lead him to pay non-refundable social security contributions.
Furthermore, the Court emphasises that Article 55(1)(a) does not harmonise a particular method of calculation of
survivors’ pensions or their amount. Therefore, competent national authorities are responsible for determining these
modalities in the application of this provision. They are not obliged to adopt the most favourable interpretation for the person concerned regarding the amount to be divided. Regulation 883/2004 permits various national
schemes to exist but does not establish a common social security framework. In that respect, the Court recalls the
long established case-law according to which Regulation 883/2004 does not establish a common scheme of social security but only allows different national schemes to exist.
In conclusion, this ruling emphasises the margin of discretion granted to Member States for calculating survivor’s pensions within the context of rules against overlapping with other pensions, as long as workers exercising their right to free movement are not subjected to unfavourable treatment due to their mobility rights.
Nicolas Langlois is a policy assistant at the European Labour Authority and previously worked as a legal assistant to Judge Ricziova at the General Court of the European Union.
SUGGESTED CITATION: Langlois. N; “Calculation of survivors’ pension in the context of the rules against overlapping of benefits of a different kind (C-45/22, HK v. Service Fédéral des Pensions)”, EU Law Live, 30/10/2001, https://eulawlive.com/analysis-calculation-of-survivors-pension-in-thecontext-of-the-rules-against-overlapping-of-benefits-of-a-different-kind-c-45-22-hk-v-service-federal-des-pensions-by-n/.
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SYMPOSIUM
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“EU Decentralised Agencies Engagement with European NonMember States” Marko Milenković This Op-Ed is part of a Symposium on EU Agencies. See also the Op-Ed by Merijn Chamon, by Marta Simoncini, by Graham Butler, by Miroslava Scholten, by Jonathan Bauerschmidt and Diane Fromage, by Ruben Della Pia and Mariolina Eliantonio, by Annalisa Volpato. , and by Tomáš Buchta. More Op-Eds will follow shortly on EU Law Live.
EU decentralised agencies have become an essential feature of the EU governance, working on implementation
of the Union law and providing a necessary expertise in regulatory process across the Union competences. They remain largely in constitutional terra incognita opening a numerous legal challenges as contributions to this Symposium attest. No other institutions or bodies of the Union have become so important for the regulatory
governance in the EU, while providing opportunity for (almost full) participation of non-Member States. As agencies roles increased over time, so did external engagements and as it was argued ‘in order to do so, the agencies enter into more or less binding arrangements of a sometimes not entirely well- established legal nature’. There is
an increasing interest in the scholarship on the participation of third countries in EU agencies and sectoral bodies. This Op-Ed concentrates on the engagement with, and participation in, European non- EU Member States with
the EU decentralised agencies and the potential they have as channels for Europeanisation and acquis transfer, especially for the EU candidate countries.
Categories of third European countries engaging with the EU decentralised agencies and legal basis for their engagement
We can distinguish between different categories of European countries that already have or are stepping up their engagement with the EU agencies. Firstly, members of European Free Trade Agreement (EFTA), three of which
are parties to the European Economic Area –Norway, Iceland and Lichtenstein, together with the fourth EFTA
member Switzerland. These represent a group of highly developed European nations intentionally choosing not to become EU Member States, but still profoundly integrated with the EU and aligned with its acquis. EEA
countries have most comprehensive relations with the EU agencies. After leaving the EU, the post-Brexit United Kingdom is now no longer a part of EU agencies it used to be. In words of Kaeding, the country has ‘moved from
a decisive and respected EU decision maker during 47 years of full EU membership in all EU agencies to one of
many rule takers with the status of “just another third country”’. Following is the group of European countries that were offered prospects of the EU membership – candidates and potential candidates. These include decade long prospective candidate Turkey as well as Western Balkan States. Engagement of the EU agencies with the Eastern Neighbourhood countries got a completely different tone as of 2022 after Ukraine and Moldova became
candidate countries as well as Georgia a potential candidate, moving them from regular association partnership closer to status of candidate countries.
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The legal basis for third country membership in agencies as well as participation in agencies’ activities and
programmes is multifold. Participation is regularly governed by the establishing acts of the respective agencies. A number of founding regulations of the EU agencies contains the standardised provision: ‘agency shall be open
to the participation of third countries which have concluded agreements with the EU which provide for the adoption and application by these countries of Community law in the area covered by the basic act. Under these
agreements, arrangements shall be made specifying, in particular, the nature and the manner in which these
countries will participate in the agency’s work, including provisions on participation in certain internal bodies, financial contributions and employment of staff.’ For countries with highest degree of involvement it is based on the EEA Agreement and decisions of the EEA Joint Committee. Furthermore, participation of individual EFTA
States in several other EU agencies is provided by the bilateral agreements with the EU. Such is also the case with Turkish membership in the European Environmental Agency (EEA) and European Monitoring Centre for Drugs and Drug Addiction (EMCDDA). The engagement of candidate countries with the EU decentralised
agencies is based on the 1997 Luxembourg Council presidency conclusions stipulating that agencies in which
applicant countries will be able to participate will be determined on a case-by-case basis. This has led to the engagement of all potential candidates with various EU agencies, which helped them over the past 25 years to better acquaint with the acquis as they are preparing for prospective membership. Types of engagement between EU agencies and third countries There are various examples of third country participation and/or engagement with EU agencies. Motivations
of the EU and third countries for these involvements are also multifold. As Chamon, Hofmann and Vos have argued, the activities of agencies on the international stage ‘involves a variety of actions that are closely linked with
their mandate and powers in their respective founding regulations’, that range from training, sharing know-how and capacity-building activities, to the development of common procedures, to exchange of information and joint operations in setting standards.
Lavenex has outlined two main rationales for engagement of agencies with third countries: a foreign policy
rationale and a sector specific interdependence logic. The first one assumes agencies acting more politically and supporting EU foreign policy agenda and promoting EU values. The second is more in service of sectoral cooperation in various regulatory areas. As Shyrokykh and Rimkutė note, ‘third countries’ involvement in the
operations of EU agencies is often perceived as a technocratic form of integration into the EU, a sort of de facto technocratic membership’. Based on Rimkutė and Shyrokykh it is possible to distinguish between special
bilateral agreements and ad hoc arrangements between agencies and candidates. Many times there are both, as our examination of engagement with Turkey and Western Balkans attest.
Countries of EFTA EEA are as outlined by Bekkedal ‘the only non-EU States that have been allowed, on a
regular basis, to participate in the work of EU agencies governing the internal market.’ They are now engaged with 19 decentralised agencies as members or observers. Membership of these countries does enable them to participate in management boards and other bodies of the agencies, brings the obligation to contribute to the
budget of the agencies, but doesn’t entail voting rights reserved for representatives of EU member states, making this type of membership almost full. Similarly, Turkish membership in the environmental agency and EMCDDA
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also does not entail voting rights. However, this type of engagement does bring European non-members closer to participating in EU governance. As outlined by the European Commission 20 years ago when the first
prospects of the membership were offered to the Balkans: ‘The EEA countries have demonstrated, participation
in Community programmes can also be of benefit to countries that are likely to remain associated countries for a long time or indefinitely…it encourages the exchange of useful experience, especially helpful in cases where a pan-
European approach is called for… A similar approach should be taken to the countries of the Western Balkans.’ In our previous work, out of 34 decentralised agencies analysed for the 1999-2021 period, we have found some type of engagement with five candidate countries, often on ad hoc basis but sometimes more stable and structured, for 23 agencies.
Ways forward – EU agencies as channels of Europeanisation and acquis transfer in absence of the EU membership?
European Union is currently in an important moment as it simultaneously reconsiders its governance and
enlargement. This process might shape its governing structures for decades to come. It is most likely that important part of that future will be EU agencies. Even though they have been around for more than 30 years, agencies
still remain both theoretical and practical challenge in the EU constitutional landscape. Their engagement with and participation of third countries in their work presents both a challenge and opportunity. Decentralised
agencies are ‘more autonomous than core EU bodies’ offering potentially ‘more leeway to craft flexible integration arrangements.’ The process of EU enlargement has been relatively slow and hampered by numerous factors both
on the EU side and among the prospective members. With new candidates (Ukraine and Moldova) the process
of enlargement might get new impetus, however it is also gaining greater complexity. As agencies are pivotal for the governance of the EU and its regulatory outreach to partner countries, the question arises whether structured and formalised participation of candidate candidates in EU agencies present a meaningful and sustainable
alternative to EU membership in the decade(s) ahead? The answer to this question should definitely be positive, with candidate countries getting more structured opportunities for comprehensive participation and membership in the agencies.
Marko Milenković is a Jean Monnet Fellow at the European University Institute – Robert Schuman Center. He is a Senior research fellow at the Institute of Social Sciences in Belgrade and Affiliated research fellow at the Center for Constitutional Studies and Democratic Development at Johns Hopkins School of Advanced International Studies in Bologna.
SUGGESTED CITATION: Milenković. M; “EU Decentralised Agencies Engagement with European Non-Member States”, EU Law Live, 03/11/2023, https://eulawlive.com/op-ed-eu-decentralised-agencies-engagement-with-european-non-member-states-by-marko-milenkovic/
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THE LONG READ
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The Commission’s Proposal for a Directive establishing a European Disability Card: Is the Glass Half Empty or Half Full? Delia Ferri1
Introduction On 6 September 2023, the European Commission released its Proposal for a new Directive establishing the
European Disability Card and the European Parking Card for persons with disabilities (hereafter the ‘Proposal’).2
This initiative aims to establish common rules for a European Disability Card, as proof of a recognised disability
status, and the European Parking Card for persons with disabilities, as proof of their right to parking conditions reserved for persons with disabilities, with a view to facilitating cross-border access to a range of services and facilities and, ultimately, enhancing free movement in the European Union (‘EU’).
The current Proposal has deep roots. It is the point of arrival of a long journey commenced in the late 1990s with
the Council Recommendation 98/376/EC on a parking card for people with disabilities.3 That Recommendation, which was amended in 2008 following the EU enlargement,4 prompted Member States to introduce national
parking cards for persons with disabilities and recognise cards issued by other Member States.5 In fact, a European Parking Card is currently in use in all Member States, and is generally characterised by a standard format ‘which
makes it easily recognisable’.6 It is issued by national authorities on the basis of national requirements and
disability assessment, and allows the beneficiary to avail themselves of specific parking concessions for persons with disabilities, including reserved parking spaces, free or reduced fee parking stalls.7 Since its inception, the
European Parking Card has been considered by disability advocates8 a stepping stone for a more generic EU
disability card. In 2010, the European Disability Strategy 2010-2020 (EDS),9 laying down the EU disability
policy framework for the implementation of the UN Convention on the Rights of Persons with Disabilities 1. Delia Ferri is a Professor of Law at Maynooth University School of Law and Criminology.
2. European Commission, Proposal for a Directive of the European Parliament and of the Council establishing the European Disability Card and the European Parking Card for persons with disabilities COM(2023) 512 final. 3. Council Recommendation 98/376/EC on a parking card for people with disabilities [1998] OJ L167/25. 4. Council Recommendation 2008/205/EC adapting Recommendation 98/376/EC on a parking card for people with disabilities [2008] OJ L63/43. 5. Council Recommendation 98/376/EC on a parking card for people with disabilities [1998] OJ L167/25, paras 1-2. 6. Mark Priestley, ‘Disability assessment, mutual recognition and the EU Disability Card, Progress and opportunities’ PE 739.397 (European Parliament, Committee on Petitions, 28 November 2022), p.65. 7. Mark Priestley, ‘Disability assessment, mutual recognition and the EU Disability Card, Progress and opportunities’ PE 739.397 (European Parliament, Committee on Petitions, 28 November 2022), p.65. 8. European Disability Forum (EDF), ‘Recommendations for strengthening the EU Parking Card European Disability Forum Position Paper’ (February 2021). 9. European Commission, ‘European Disability Strategy 2010-2020: A Renewed Commitment to a Barrier-Free Europe’ COM (2010) 636 final.
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(CRPD), recognised the ‘obstacles preventing people with disabilities from fully exercising their fundamental rights - including their Union citizenship rights - and limiting their participation in society’. However, the EDS did not put forward any specific action in that regard.10 The document accompanying the EDS merely referred to the European Economic and Social Committee (EESC) as one of the EU bodies endorsing the ‘development of a
‘European disability card’ that would facilitate mutual recognition of rights and cross-border travel for people with
disabilities’.11 Only in 2016, a pilot project for a European Disability Card, involving eight Member States was
launched. It entailed the issuing of a card to persons who were recognised as persons with disabilities according
to national legislation and were residing in the issuing Member State, with a view to facilitating their access to transport, leisure, sport and cultural activities in all Member States participating in the pilot. Notwithstanding its limitations, the study that assessed the impact of such a pilot identified the distinct benefits of the card in
advancing the rights of persons with disabilities and suggested its extension to all EU Member States.12 Following
this pilot, the ‘Union of Equality Strategy for the Rights of Persons with Disabilities 2021–2030’ (Strategy 2021– 2030)13 identified the European Disability Card as one of its flagship initiative to implement the CRPD. An
extensive consultation process was then undertaken between November 2022 and May 2023,14 to support the release of the current Proposal.
The Proposal put forward by the Commission is now in the hands of the EU co-legislators - the European Parliament (‘EP’) and the Council - which immediately hit the ground running and are working towards a
speedy approval before the European elections in May 2024. The Spanish Presidency of the Council of the EU,15
in office until the end of this year, has expressed its commitment to support and facilitate reaching an agreement on the current text at various junctures.16 Notably, Spain aims ‘to formulate a consensus proposal that will serve to implement the European disability card’ during the forthcoming High Level Meeting on the Rights of Persons
with Disabilities which will be held in Palma on 16 November.17 In the meantime, at the beginning of October, the EP Employment and Social Affairs Committee, which is responsible for examining the Proposal, announced
that Lucia Ďuriš Nicholsonová (a member of the centrist group Renew Europe) will be the main rapporteur. Nicholsonová, in a meeting with the European Disability Forum-EDF (the main disability umbrella organisation
at the EU level) has already proclaimed her intention ‘to urgently negotiate quality legislation that will provide
a genuine response to the difficulties people with disabilities face in the mutual recognition of [their] disability status between Member States’.18
10. European Commission, ‘European Disability Strategy 2010-2020: A Renewed Commitment to a Barrier-Free Europe’ COM (2010) 636 final, p.5. 11. European Commission, ‘Commission Staff Working Document Accompanying the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions European Disability Strategy 2010-2020: A Renewed Commitment to a Barrier-Free Europe’ COM(2010) 636 final, p.34. 12. European Commission, ‘Study assessing the implementation of the pilot action on the EU Disability Card and associated benefits’ (2021). 13. European Commission, ‘Union of Equality Strategy for the Rights of Persons with Disabilities 2021 – 2030’ COM(2021) 101 final. 14. See European Commission ‘European Disability Card Call for Evidence’; See European Commission ‘European Disability Card Public Consultation’. 15. See Spanish Presidency of Council of the European Union. 16. See ‘Foreign Ministry and ONCE present the social coupon dedicated to the Spanish Presidency’ (29 June 2023). 17. Spanish Presidency of the Council of the European Union, ‘High Level Meeting on the Rights of Persons with Disabilities’. 18. Emphasis added. EDF, ‘European Disability Card: European Parliament’s lead negotiator supports ambitious legislation’ (11 October 2023).
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A Single Directive for Two Cards As noted above, the current Proposal aims to establish both a European Disability Card and a European Parking
Card for persons with disabilities.19 It does not merge the two cards and refrains from creating a unique multipurpose disability card, an option which had been firmly pushed back by disability advocates and the EESC.20
Indeed, combining the two cards would not have been recommended given their rather diverging scope and
purpose, with the European Parking Card being relevant to people travelling by car only. Furthermore, while not all Member States have a disability card,21 as mentioned, parking cards do exist in all Member States, albeit
with some differences. Thus, the Commission’s choice to keep the two cards distinct is to be welcomed. Similarly welcome is the decision to actually revamp the European Parking Card, update it, taking advantage of digitalisation advancements, and make it binding.
Regulating these different cards with the same legislative instrument might, however, begs some questions. First, a directive - which requires transposition at the national level and leaves room for manoeuvre to Member States
- might arguably be considered an adequate instrument (although not ideal from a disability rights perspective as it gives rise to discrepancies across the EU) to regulate a novel European Disability Card. However, it does not
seem the best option for the European Parking Card. Given the longstanding existence of the parking cards in the EU, a regulation based only Article 91 TFEU and providing for full harmonisation would have best harnessed
the consensus and practice built in the past twenty years. Further, regulations are already largely deployed in the field of transport and such an instrument would have fairly complemented the already successful mainstreaming of disability in that sector.22 In fact, the EESC, which strongly advocated ‘the physical separation of the EU Disability Card and EU Parking Card’, had already called for the adoption of a regulation.23
Secondly, while a single instrument might appear, at first sight, a pragmatic solution, especially at a critical political juncture with the looming European elections, it may actually create some backlash. The provisions on
the European Parking Card are not likely to attract too much opposition as they build on a consolidated status
quo. By contrast the European Disability Card might be subject to more discussion and possibly disagreement. It is this new card on which the legislative debate will arguably focus on. A political clash on some parts of
the current text (or on revisions of the Proposal that may be advanced) might lengthen the legislative process or even cause the stall of the directive. Albeit unlikely, in light of the support to the Proposal expressed by all
EU institutions so far, this scenario is not completely unrealistic. Unanimity is not required in this case, but the
19. European Commission, ‘Proposal for a Directive of the European Parliament and of the Council establishing the European Disability Card and the European Parking Card for persons with disabilities’ COM(2023) 512 final. 20. European Economic and Social Committee (EESC), ‘The European Disability Card’ (27 April 2023). 21. Charlotte van Dijck, ‘Case Study—The European Disability Card’ in Taco Brandsen, Trui Steen and Bram Verschuere (eds), Co-Production and Co-Creation Engaging Citizens in Public Services, Routledge, 2018, p.146. 22. Eliza Varney and Abigail Pearson, ‘Disability in EU transport legislation’ in Delia Ferri and Andrea Broderick (eds), Research Handbook on Disability Law, Edward Elgar, 2020, pp.182-200. 23. EESC, ‘The European Disability Card’.
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unsuccessful trajectory of the 2008 proposal for a horizontal non-discrimination directive,24 aimed to complement
the Employment Equality Directive,25 is there to remind us that political consensus remains key in order to swiftly advance legislation.
The European Disability Card its Material Scope Since the outset, the Commission’s position to exclude social security from the material scope of application of
the Card was probably the main firm point. As noted earlier in the blog, while Article 21(3) TFEU would have arguably supported the adoption of provisions regulating social security for economically inactive EU citizens, the need to tame Members States’ fears of ‘benefit tourism’ and avoid long impasse in the Council have led to a more constrained scope,26 yet wider than anticipated and broader than the pilot project.
The current text covers services within the meaning of Article 57 TFEU, passenger transport services, ‘as well as
other activities and facilities, including where not provided for remuneration’.27 Notably, the explicit reference to
Article 57 TFEU opens up the use of the Card within a wide range of services. The Treaty defines the concept
of services as encompassing activities of an industrial or commercial character, including activities carried out by craftsmen or professionals in exchange for remuneration, and the Court of Justice of the EU has interpreted this
notion quite extensively to include, among others, sport,28 gaming,29 health services30 and educational ones.31 The
key factor that makes an activity a ‘service’ for the purpose of Article 57 TFEU is its economic character. Notably such a character is not dependent on the activity being profit-making, nor does it require remuneration from
the actual recipient.32 Furthermore, the residual reference to ‘other activities and facilities, including where not
provided for remuneration’ de iure allows for the recognition of disability status via the Card in all virtually public and private services facilities, except regarding social security and social assistance.
A tricky point of this Proposal is its reference to ‘short stays’ with no further specification or definition. As it
stands, Recital 12 of the preamble to the Proposal makes reference to ‘persons with recognised disability status
travelling to or visiting for a short period of time a Member States other than the Member State in which
they reside’. In a similar fashion, Article 1 makes explicit that the European Disability Card is a tool aimed at
‘facilitating short stays of persons with disabilities’. Furthermore, Recital 11 of the preamble explicitly states that 24. European Commission, ‘Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation’ COM (2008) 426 final. 25. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L 303/16. 26. Delia Ferri, ‘Op-Ed: The Road towards a ‘European Disability Card’’ EU Law Live, 28 July 2023. 27. Article 2 Proposal for a Directive of the European Parliament and of the Council establishing the European Disability Card and the European Parking Card for persons with disabilities. 28. Judgment of the Court (Third Chamber) 18 July 2006, Meca-Medina and Majcen (C-519/04 P EU:C:2006:492, paras 22 and 23). 29. Judgment of the Court (Third Chamber) of 11 September 2003, Anomar (C-6/01 EU:C:2003:446, paras 46 and 56). 30. Judgment of the Court of 12 July 2001, Smits and Peerbooms (C-157/99EU:C:2001:404, paras 47–69). 31. Judgment of the Court (Grand Chamber) 11 September 2007, Schwarz (C-76/05EU:C:2007:492, paras 35–47). 32. Judgment of the Court of 26 April 1988, Bond van Adverteerders (C 352/85 EU:C:1988:196, para 16).
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persons with disabilities ‘moving for longer periods to other Member States for employment, study or other purposes, except where otherwise provided by law or agreed among Member States, may have their disability
status assessed and formally recognised by the competent authorities in the other Member State’. As it stands, the European Disability Card will not allow, as strongly advocated by EDF, persons travelling under the remit of EU Mobility programmes, such as students travelling under ERASMUS+, or persons that decide to reside in another
Member States to have their disability status provisionally recognised for the purpose of accessing social security and social assistance benefits while they wait for a new disability assessment to be carried out in that Member
State.33 Thus, on whole, the proposed directive is likely to facilitate the consumption or use of certain services,
but will do nothing for those who actually move into another Member State for longer periods and for purposes other than leisure.
The Limits of Mutual Recognition The proposed directive is not meant to affect ‘Member States’ competence to determine the conditions for assessing and recognising disability status, or for granting the right to parking conditions and facilities reserved
for persons with disabilities’.34 As anticipated, both cards will be based on the principle of mutual recognition of
the disability status in the Member States, but only for the purpose of accessing services covered by the cards. This
principle, whose affirmation dates back to the milestone case of Cassis de Dijon,35 was further elaborated by the
Court of Justice to support free movement of persons. Cases like Garcia Avello36 and Sayn-Wittgenstein,37 seem to point to the fact that national public authorities will have to tolerate and recognise disability assessment regimes
that differ from their own, somewhat legitimising national disability assessments that are based on extremely medicalised models38 and are at odds with the CRPD.39 Standardised Formats The Proposal includes provisions requiring common standardised formats of the European Disability Card and
of the European Parking Card. It also requires both a physical format as well as a digital format,40 and aims to
ensure that full publicity and accessibility of ‘the conditions and rules, practices, and procedures to issue, renew or
33. EDF, EU Disability Card - Analysis. 34. Article 1 Proposal for a Directive of the European Parliament and of the Council establishing the European Disability Card and the European Parking Card for persons with disabilities. 35. Judgment of the Court of 20 February 1979, Rewe-Zentral AG (Cassis de Dijon) (C 120/78, EU:C:1979:42, para 14). 36. Judgment of the Court of 2 October 2003, Carlos Garcia Avello v État belge (C-148/02, EU:C:2003:539). 37. Judgment of the Court (Second Chamber) of 22 December 2010, Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien (C-208/09, EU:C:2010:806); Judgment of the Court (Second Chamber) of 12 May 2011, Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v Vilniaus miesto savivaldybės administracija and Others (C-391/09, EU:C:2011:291). 38. See for example Hungary; Mark Priestley, ‘Disability assessment, mutual recognition and the EU Disability Card, Progress and opportunities’ (European Parliament, Committee on Petitions, 28 November 2022), p.29. 39. Delia Ferri, ‘Op-Ed: The Road towards a ‘European Disability Card’’ EU Law Live, 28 July 2023. 40. Article 6 Proposal for a Directive of the European Parliament and of the Council establishing the European Disability Card and the European Parking Card for persons with disabilities.
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withdraw’ these cards.41 It further obliges Member States to ‘take appropriate measures to raise awareness among
the public and inform persons with disabilities, including in accessible ways, about the existence and conditions to obtain, use, or renew’ these cards, as well as to ‘take all necessary steps to avoid the risk of forgery or fraud’.42 The latter provisions seem to give a wide room for manoeuvre to Member States and may potentially give rise to differentiated approaches in the way information is provided to the public, but also in the level of accessibility. A Glass Half Full or Half Empty? This Proposal was much anticipated and has been so far ‘warmly’ welcomed by disability organisations, which have in fact considered the glass ‘half-full’.43 The European Disability Forum (EDF), the main umbrella organisation
representing persons with disabilities in Europe, which has long pushed for the creation of European Disability
Card, has recently released a rather positive appraisal of the Commission’s text.44 In a similar fashion, other
organisations, such as EURORDIS – Rare Diseases Europe,45 have highlighted that this Proposal is an ‘important
step in the right direction’. Notably, according to the European Association of Service Providers for Persons with Disabilities (EASPD), the Commission’s initiative epitomises ‘an increased commitment to European integration in the area of disability policy’.46 These optimistic reactions tally with the support expressed, at earlier stages and
before the release of this Proposal, by governmental organisations at local, regional, national and EU level,47 as
well as by other EU bodies. For example, in November 2022, the European Ombudsman Emily O’Reilly declared that initiatives such as the EU Disability Card place Europe at the forefront when it comes to the protection of
the rights of persons with disabilities and that the card will help remove ‘hurdles for Europeans with disabilities so that they can benefit from free movement as much as their fellow citizens’.48
However, in spite of its symbolic value and undoubtable strengths, the weaknesses of the Proposal from a disability
perspective have been highlighted, in particular, by EDF.49 It remains to be seen whether these pitfalls will be
addressed during the legislative process or the sense of urgency that has stirred up around the Proposal will lead
to the approval of the current (perhaps even watered down) text before a new European Parliament and a new Commission take office.
41. Article 9(1) Proposal for a Directive of the European Parliament and of the Council establishing the European Disability Card and the European Parking Card for persons with disabilities. 42. Articles 9(2) and (3) Proposal for a Directive of the European Parliament and of the Council establishing the European Disability Card and the European Parking Card for persons with disabilities. 43. EDF, ‘European Disability Card will boost free movement for persons with disabilities’ (6 September 2023). 44. EDF, ‘EDF Analysis of the Commission proposal for a European Disability Card’ (3 October 2023). 45. EURODIS Rare Disease Europe, ‘EURODIS: Commission’s Disability Card plans are promising, but implementation will be key’ (September 2023). 46. European Association of Service Providers for Persons with Disabilities, ‘European Commission delivers legislative proposal for EU Disability Card’. 47. European Parliament, ‘Pre-legislative synthesis European Disability Card’ European Parliamentary Research Service, 2023. 48. Emily O’Reilly, ‘Disability Assessment, Mutual Recognition and the EU Disability Card’ (30 November 2022). 49. EDF, ‘EDF Analysis of the Commission proposal for a European Disability Card’ (3 October 2023).
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HIGHLIGHTS OF THE WEEK
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General Court to hear action for annulment concerning EU-US Privacy Shield framework Monday 30 October
Official publication was made of the case Latombe v Commission (T‑553/23), concerning an action for annulment of Articles 1 and 2 of Commission Implementing Decision (EU) 2023/1795, which confirms, under Regulation (EU) 2016/679 of the
European Parliament and the Council, the adequate level of personal data protection provided by the EU-US Privacy Shield framework.
Read on EU Law Live
Directive (EU) 2023/2225 on credit agreements for consumers and repealing Directive 2008/48/EC, published in OJ Monday 30 October
Official publication was made of Directive (EU) 2023/2225 on credit agreements for consumers, which revokes Directive
2008/48/EC and is designed to address the challenges brought about by digitalization and technological advancements that have significantly altered the landscape of consumer credit. Read on EU Law Live
Preliminary reference on criteria relating to screening procedures to prevent money laundering and terrorist financing Monday 30 October
Official publication was made of a preliminary ruling request from the Administratīvā rajona tiesa (Latvia), a case concerning
the interpretation of certain provisions of Directive 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing: Laimz (C-509/23). Read on EU Law Live
European Union Agency for Fundamental Rights: growing racism and discrimination against black people in the EU, new report reveals Monday 30 October
A recent report titled ‘Being Black in the EU,’ released by the EU Agency for Fundamental Rights (FRA), found escalating challenges faced by people of African descent in the EU. Read on EU Law Live
State Aid approval decisions in the Official Journal Tuesday 31 October
Information was published regarding the European Commission’s decisions pursuant to Articles 107 and 108 TFEU not to raise objections against certain State aid measures. Read on EU Law Live
www.eulawlive.com
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Regulation (EU) 2023/2405 on ensuring a level playing field for sustainable air transport, published in OJ Tuesday 31 October
Official publication was made of Regulation 2023/2405 on ensuring a level playing field for sustainable air transport, which
acknowledges the significant role air transport has played in the Union’s economy, contributing to economic growth, jobs, trade, and tourism, as well as connecting various regions. Read on EU Law Live
Commission conditionally approves the acquisition of Thales’ ground transportation business by Hitachi Rail Tuesday 31 October
The European Commission conditionally approved the proposed acquisition of Thales’ ground transportation business (‘GTS’) by Hitachi Rail concerning two leading suppliers of rail mainline signaling services in the EEA. Read on EU Law Live
Official publication of Directive 2023/2413: advancing renewable energy transition and climate ambitions Tuesday 31 October
Official publication was made of Directive (EU) 2023/2413 as regards the promotion of energy from renewable sources, which
aligns with the overarching European Green Deal and is explicitly tailored to support the EU in achieving its ambitious climate objectives.
Read on EU Law Live
Commission opens in-depth investigation into cooperation agreement between Slovak Post and mobile operator SWAN Tuesday 31 October
The European Commission announced the opening of an in-depth investigation to assess whether the initial cooperation
and framework agreement between public postal services provider Slovak Post and mobile network operator SWAN was in line with EU State aid rules. Read on EU Law Live
EDPB issues urgent binding decision against Meta for behavioral advertising data processing Thursday 2 November
The European Data Protection Board took an unprecedented step by issuing an urgent binding decision that instructed the
Irish Data Protection Authority to adopt an immediate ban on the processing of personal data for behavioral advertising against Meta Ireland Limited. Read on EU Law Live
www.eulawlive.com
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EU and Korea to launch negotiations for a digital free trade agreement Thursday 2 November
The European Commission Executive Vice-President and Korean Minister for Trade issued a joint statement on the launch
of negotiations on an EU-Korea digital trade agreement, aiming to provide legal certainty for businesses and consumers
engaged in digital trade, enhance their protection in digital transactions, and foster an open, free and fair online environment. Read on EU Law Live
ESA assesses Norway’s and Iceland’s progress in further reducing greenhouse gas emissions Thursday 2 November
The EFTA Surveillance Authority published its third annual report on progress made by Iceland and Norway towards reaching their goal to significantly reduce their greenhouse gas emissions by 2030. Read on EU Law Live
Ombudsman resolves access to documents disputes concerning the Recovery and Resilience Facility Thursday 2 November
In the case of “Decision on the European Commission’s refusal to give public access to documents concerning the French national plan under the Recovery and Resilience Facility (case 1129/2022/SF),” the European Ombudsman addressed a complaint regarding public access to documents related to the evaluation process of the French national plan under the Recovery and Resilience Facility. Read on EU Law Live
ECtHR rules on police video publication rights Thursday 2 November
In the case of Bild GmbH & Co. KG v. Germany, the European Court of Human Rights addressed a legal dispute, the central issue of which was whether the company had the right to publish unedited video footage of the arrest without blurring the face of one of the police officers involved. Read on EU Law Live
State Aid approval decisions in the Official Journal Friday 3 November
Information was published regarding the European Commission’s decisions, pursuant to Articles 107 and 108 TFEU, not to raise objections against certain State aid measures. Read on EU Law Live
www.eulawlive.com
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