The Week Nº3 by eulawlive

ISSUE Nº3

Y EAR 2 0 2 3

13-17 November 2023

IN-DEPTH: “WTO norms’ applicability in Changmao Biochemical Engineering v Commission (case C-123/21 P): There is nothing new under the sun…yet” Nicola Bergamaschi “EU staff members’ eligibility to the expatriation allowance: get down to the facts (QB v Commission, C-88/22 P)” Anaïs Guillerme and Louise Bouchet “The application of the ‘inclusion’ clause to Palestinian refugees on medical grounds – A cautious opening in SW (C-294/22)” Janine Silga “Breathe new life into Köbler” Hans van Meerten “Infringement and Criminal Penalties: Striking the right balance in Intellectual Property cases” Manon Verbeeren COMPETITION CORNER Symposium - Digital Markets Act Symposium - Recent Developments in Merger Control Enforcement THE LONG READ: “Special Issue on Russia’s exclusion from the Council of Europe” Edited by Edoardo Stoppioni HIGHLIGHTS OF 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: “WTO norms’ applicability in Changmao Biochemical Engineering v Commission (case C-123/21 P): There is nothing new under the sun…yet” ........................................................................................................................................................................................ 4

Nicola Bergamaschi “EU staff members’ eligibility to the expatriation allowance: get down to the facts (QB v Commission, C-88/22 P)” ........ 10

Anaïs Guillerme and Louise Bouchet “The application of the ‘inclusion’ clause to Palestinian refugees on medical grounds – A cautious opening in SW (C-294/22)” ........................................................................................................................................................................... 15

Janine Silga “Breathe new life into Köbler” ............................................................................................................................................... 19

Hans van Meerten “Infringement and Criminal Penalties: Striking the right balance in Intellectual Property cases” ..................................... 22

Manon Verbeeren

COMPETITION CORNER: Symposium - Digital Markets Act “DMA specification decisions – an interesting feature of public enforcement and its interaction with private enforcement” ............................................................................................................................................................. 26

Assimakis Komninos “The Role of the DMA in the Commission’s Review of Digital Mergers” ............................................................................. 32

Marija Momic and Ben Holles de Peyer Symposium - Recent Developments in Merger Control Enforcement “EU merger control in the digital sector: an expanding toolkit, an evolving practice” .......................................................... 37

Sean Mernagh

THE LONG READS: “An Introduction” ................................................................................................................................................................... 45

Edoardo Stoppioni “ ‘There is no place for the aggressor in the common home’ – Russia’s exclusion seen from the press-room” ....................... 52

Véronique Leblanc “ECHR’s adjustments to Russia’s exit from the Council of Europe: much ado about nothing?” ......................................... 56

Julie Ferrero “The reaction of international organizations to Russia’s aggression against Ukraine: between UN impotence and European renaissance” ........................................................................................................................................................................... 60

Laurence Burgorgue-Larsen “The war in Ukraine: a definitive discredit for the UN?” ...................................................................................................... 64

Jean-Marc Sorel

IN-DEPTH

The Week

ISSUE Nº3 13-17 NOVEMBER 2023

“WTO norms’ applicability in Changmao Biochemical Engineering v Commission (case C-123/21 P): There is nothing new under the sun…yet” Nicola Bergamaschi Introduction In Changmao Biochemical Engineering v Commission (C-123/21 P), the Court of Justice (‘the Court’) dismissed the appeal of the judgement of the General Court (T‑541/18), which rejected the pleas for invalidity of the Commission Implementing Regulation (EU) 2018/921 (‘the contested regulation’) claimed by the Chinese company Changmao Biochemical Engineering (‘the appellant’).

The contested regulation imposes a definitive anti-dumping duty on imports of tartaric acid originating in China. Notably, the duty at hand results from the revision operated by the Commission under Art. 11(2) of Regulation (EU) 2016/1036 (‘the Basic Regulation’), following the expiry of the 15-year special regime established by the China’s Accession Protocol to the WTO Anti-Dumping Agreement (‘the ADA’).

The appeal is based on four grounds, none of which proved successful. The first one, in particular, presents some points of interest. Firstly because, in very broad terms, the first ground is about the legitimacy of treating China as a non-market Country for the purposes of Art. 2(7) of the Basic Regulation, notwithstanding the expiry of the abovementioned special regime period. Secondly, the dispute concerns the compatibility of acts adopted under the Basic Regulation, such as the contested regulation, with the WTO obligations, namely those contained in

China’s Accession Protocol. From this perspective, it relates to the general (and classic) topic of the WTO norms’ effects within the EU legal order.

In her Opinion on the case (‘the Changmao Opinion’), concerning only the first ground of appeal, AG Ćapeta

proposed to dismiss it and validate the Commission’s approach in the contested regulation. Moreover, the

Opinion raised some thought-provoking issues of a theoretical nature regarding the deployment of the WTO

norms as a yardstick to assess the legality of EU secondary law, suggesting a quite original view on the matter (for a comment on the AG’s opinion see Natens and my previous Op-Ed). On its side, the Court follows the

findings of the Opinion on the merits but refrains from addressing the innovative points of the AG’s reasoning. Against this backdrop, the present Op-Ed reflects on the insights provided by the Changmao case, namely those

concerning the topic of the applicability of WTO norms within the EU law (on the conceptual distinction

between applicability and direct effects of international law, see Lenaerts). In this context, it aims to sketch a

picture of the open questions that the Court will probably be asked to address in the future, starting from the judgment in the pending Kaikai case (C-382/21 P).

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The Court’s dismissal of the first ground of appeal As mentioned, the appeal relies on four grounds. The second, third and fourth ones concern the compatibility of the contested regulation with the Basic Regulation on a procedural basis. This Op-Ed will not dwell further on them, instead focusing on the first ground.

Before the General Court (GC), the appellant questioned the use, by the contested regulation, of the ‘analogue

country methodology’ for calculating the normal value for tartaric acid imports from China. According to Art. 2(7)(a) of the Basic Regulation, such a procedure shall apply to non-market Countries. On the contrary, the

appellant held that imports from China should be governed by the basic rules designed for market economy Countries laid down in Art. 2(1) to (6), for the special regime of the Accession Protocol expired in 2016. To

support its position, the applicant invoked the Accession Protocol which – it argued – prohibits the application of the analogue country methodology after the expiry of the 15-year period of the established special regime. The

GC rejected this plea on the basis of the general exclusion of the direct applicability of WTO norms, as per wellconsolidated case law (Portugal v Council, C-149/96),

Consequently, the first ground on the appeal centres around the allegation that the GC erred in concluding that

the contested regulation should not be assessed in light of the Accession Protocol. In this sense, three arguments have been made by the appellant. The first two are complementary. On the one side, the appellant asserts that the GC should have applied the Nakajima doctrine, according to which WTO rules can exceptionally be referred to in order to assess the legality of the EU Institutions’ acts, as long as the contested provisions reflect the intention

of the EU legislature to implement those specific WTO obligations, invoked as a parameter. On the other side, in contrast with the GC’s view, the appellant contends that the situation of its case differs from that in Rusal Armenal

(C‑21/14 P). On that occasion, the Court of Justice excluded the application of Nakajima to Art. 2(7) of the then

Basic Regulation by finding that that provision (corresponding to the current version) ‘[…] is the expression of

the EU legislature’s intention to adopt in that sphere an approach specific to the EU legal order’ (Rusal Armenal, para. 48). As a result, the provision has been considered not to fulfil the Nakajima condition, and WTO rules could not be invoked as a parameter for its legality. As for the third argument, the appellant tries to overcome the

possible flaws of the two previous points. It alleges the existence of a new exception to the non-applicability of WTO rules when assessing the legality of EU Institutions acts. Notably, a third exception besides the two existing

ones: Nakajima (mentioned above) and Fediol (this latter occurs when the contested dispositions expressly refer to specific norms of WTO agreements).

In its judgement, the Court relies on the analysis of the AG to affirm the relevance of Rusal Armenal in the present

case and confirms that Art. 2(7) of the Basic Regulation corresponds to a specific approach adopted by the EU legislature, meaning that the provision is not intended to implement the Accession Protocol regime in Nakajima

terms. Moreover, the Court agrees with the AG that such a finding is not at odds with Recital 3 of the Basic Regulation. In fact, when stating that the regulation aims at transposing the ADA rules into EU law ‘to the best

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extent possible’, recital 3 does not ‘[…] express the wish [of the EU legislature] to transpose each of those rules

into that regulation’ (Changmao, para. 78). Therefore, it does not imply per se that the Nakajima conditions are met. Finally, with respect to the possibility of envisaging a third exception, the Court does not express itself, since it finds the appellant’s considerations not to contain ‘[…] any clear and comprehensible legal argument’ to support such a claim (Changmao, para. 89).

In the light of this, the Court concludes that the Accession Protocol is not applicable for the purpose of the legality assessment of the contested regulation. Comment The judgment is not of small relevance for the EU antidumping regime, for at least two reasons. The first one is

the acknowledgement that the procedure under Art. 2(7) of the Basic Regulation reflects a specific and special approach of the EU antidumping regime, which shall not be read as implementing any WTO rule. This does

not necessarily imply that the EU legislature opted for a set of norms that conflicts with the WTO ones (AG’s Opinion, para. 94). It just impedes the applicability of WTO rules as a parameter for the legality review of EU

acts adopting such a methodology for the calculation of normal value of imported products, in accordance with the Nakajima doctrine. This finding is not per se innovative. As seen, the Court already clarified the point in Rusal Armenal. Nonetheless, it leads to the second and most remarkable aspect of the judgment. Specifically, it opens

the door for the Commission to adopt the analogue country methodology for imports of products originating in China, regardless of the expiry of the special regime established under the umbrella of WTO law. In the precedent of Zhejiang (C-718/20 P), the Court had already applied Rusal Armenal to imports from China (see the

Changmao opinion, paras. 89-91). Nontheless, in that case, the 15-year period had not expired yet. So, one could have wondered whether the situation would had changed after that deadline. In Changmao the Court answered in the negative. Thus, the Commission has now officially the green light.

That said, the Changmao case draws attention also from a theoretical point of view, regarding the general topic of the effects of WTO norms within EU law. Indeed, the analysis of the judgment, linked to the appraisal of the view expressed by AG Ćapeta, reveals a scenario full of uncertainties.

As anticipated, in her Opinion the AG took the opportunity to make a reflection, in abstract terms, on the

applicability of WTO norms before the Court of Justice in order to assess the compatibility of the Institutions’ acts. Some aspects of the rich AG’s reasoning have been discussed in my previous Op-Ed on the Opinion. What

is worth focusing on here is the AG’s view on the conditions to invoke WTO norms in annulment proceedings (and validity preliminary rulings, by analogy).

The traditional approach usually adopted by the Court of Justice (see for instance X and X BV, C-319/10, paras. 31-44) is well-shown by the GC judgment in Changmao. Firstly, the GC assessed the occurrence of the

Nakajima exception and excluded it, the disposition at stake being not intended to implement any specific WTO obligation. Subsequently, given the lack of applicability of the Accession Protocol, the GC explore the possibility www.eulawlive.com

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of interpreting the internal provisions consistently with the international ones. Anyway, it concluded that it was

not the case, due to the ‘unequivocal wording’ of Art. 2(7) of the Basic Regulation (GC’s judgment, para. 68). Finally, the GC rejected the existence of a third exception ‘[…] in the light of the settled case-law of the Court

of Justice’ (GC’s judgment, para. 74; this latter point was not appealed). As one can see, the room for the WTO norms to be invoked is quite narrow. If Nakajima (on Fediol) conditions are nor met, the only way for the appellant

to take benefit from WTO norms is represented by consistent interpretation. Through this latter one, thought, the judge is not allowed to bypass or override the evident meaning of the municipal norm at stake (this is the contra

legem limit of consistent interpretation; see Grunig KG v Commission, T-746/20, para. 167), nor to annul it for

being in contrast with international law obligations binding on the EU.

In the Opinion, the AG proposed a different approach. She advocated for a broader scope of application of the

Nakajima exception, claiming that such a doctrine could be interpreted in two ways, a stricter one and a wider

one. As for the stricter, the exception should apply when the legislature has clearly expressed the intention to implement WTO norms (Changmao oOpinion, para. 59). In the Nakajima case, it did in recitals 2 and 3 of

the then Basic Regulation (Nakajima, paras. 31-32). As for the wider reading, AG Ćapeta suggested that the

compatibility of EU dispositions with WTO norms could be assessed ‘[…] in any situation in which it is in a

position to conclude that the legislature did not intend to depart from its WTO obligations’ (Changmao Opinion,

para. 60). Alternatively, the wider reading of Nakajima could be considered as a third exception, based on the

same conditions (Changmao opinion, paras. 61 and 98) The AG did not explain when this situation may occur

in practice. Anyway, she provided an example in her Opinion in the Kaikai case (‘the Kaikai Opinion’). There, the AG illustrated in detail her understanding of the matter. In her view, the cases on WTO norms applicability

can be divided into two groups: those similar to Nakajima, in which WTO norms can be invoked, and the cases similar to Rusal Armenal, where they cannot. This latter situation occurs when the internal norms represent a specific normative approach proper to EU law, as in the present case. Interestingly, in this context, the Nakajima

doctrine is intended according to its wider reading. In particular, the AG argued that the Nakajima exception

applies to the situation under scrutiny in Kaikai, since the internal disposition at stake was ‘virtually identical’ to the WTO norm invoked (Kaikai Opinion, para. 67). According to the AG, ‘[…] That suggests a legislative

intention to align Regulation 6/2002 with that international agreement’ (ibidem). Accordingly, in general terms, the AG’s claim is that the identity of the terms of the internal and WTO norms would permit the latter to be invoked to assess the legality of the former, in light of the wider reading of Nakajima.

Moreover, it is worth noting that, in the framework described in the two AG Ćapeta’s Opinions, consistent

interpretation would get an unusual role, that diverges from its traditional one. It would not represent the last

and residual remedy available to the appellant when the WTO norms invoked do not enjoy applicability, as it is

in the view of the GC. Differently, according to the AG, the judicial practice of interpreting municipal norms consistently with international law (the external dimension) should be submitted to the same conditions seen for

the applicability of international norms, as they respond to the same logic (Changmao Opinion, paras. 100-101).

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In fact, the AG argues that, in the external dimension, consistent interpretation would lead to the same result of

giving direct effect to the international norm (Kaikai opinion, para. 73), irrespectively of the contra legem limit. Consequently, the consistent interpretation option would not be available in a Rusal Armenal-like case (Kaikai Opinion, para. 75).

I have already engaged with this latter point elsewhere (see my previous Op-Ed on the Changmao opinion and

here). What I would like to stress here is that all these aspects concerning the applicability of WTO norms

are closely interlinked. Touching the balance between the Nakajima (and Fediol) exception, the Rusal Armenal situation and consistent interpretation would have substantial consequences on the effect of WTO norms (and international law in general) within EU law. One can see how the approach envisaged by the AG’s would have a

significant impact on the overall framework in this field. So, it would probably deserve a more detailed reflection

before being adopted. Still, such an innovative reading attempts to offer a possible answer to some legitimate

questions. Where should the dividing line between the Nakajima and the Rusal Armenal situations be located? Is the same-wording criterion enough for assessing the wish of the legislature to implement WTO norms, rendering

them invokable before the Court of Justice? Moreover, what is the scope of consistent interpretation in the external dimension? Does it require conditions?

The Changmao judgment does not clarify these points. It relies on the precedents to dismiss the first ground of the appeal, it does not deal with the third exception argument and it has not been asked to adjudicate on the consistent

interpretation issue. All in all, what we learn from the Changmao, Zhejiang and Rusal Armenal judgments is that

a general statement, declaring that an EU act intends to reflect WTO obligations to the best extent possible (as in the case of recital 3 of the Basic Regulation), does not prevent that act to provide for a discipline that is

specific to the EU regime, irrespectively of the WTO one. In this situation, Nakajima does not apply. Nonetheless, as AG Kokott noted in her Opinion in the Rusal Armenal case (‘the Rusal Armenal Opinion’): ‘[t]he Court of

Justice has not as yet ruled exhaustively on the question of how the EU legislature’s intention of implementation, which is decisive for the purposes of the case-law in Nakajima, must have been expressed or by reference to what criteria it is determined’ (Rusal Armenal Opinion, para. 39). Answering this question would certainly contribute to illuminate the overall picture. Hopefully, the Kaikai judgment will shed some light. Conclusion In the Changmao judgment the Court validated the use of the ‘analogue country methodology’ for calculating the

normal value of imports (namely tartaric acid) from China even after the expiry of the special regime established under the Accession Protocol. This is due to the fact that the procedure under Art. 2(7) of the Basic Regulation

corresponds to a specific regime of EU law. Consequently, its legality cannot be assessed having regard to WTO rules.

More in general, the case brings up uncertain aspects concerning the applicability of WTO norms within the EU

legal order, as this Op-Ed tried to illustrate. While the AG proposes an innovative approach, the judgment does

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not add much more to the existing case law. However, the Kaikai case could provide a better chance for the Court to deal with these issues.

Nicola Bergamaschi (PhD in European Law, University of Bologna) is a postdoctoral research fellow in EU law at the University of Turin, Department of Law.

SUGGESTED CITATION: Bergamaschi N.; “WTO norms’ applicability in Changmao Biochemical Engineering v Commission (case C-123/21 P): There is nothing new under the sun…yet”, EU Law Live, 14/11/2023, https://eulawlive.com/op-ed-wto-norms-applicability-in-changmao-biochemicalengineering-v-commission-case-c-123-21-p-there-is-nothing-new-under-the-sunyet-by-nicola-bergamaschi/

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“EU staff members’ eligibility to the expatriation allowance: get down to the facts (QB v Commission, C-88/22 P)” Anaïs Guillerme and Louise Bouchet In a recent judgment, QB v. European Commission (C-88/22 P), the Court of Justice of the EU ruled on appeal on the conditions to grant the expatriation allowance to EU staff members.

The expatriation allowance, as outlined in Article 69 and Article 4 of Annex VII to the EU Staff Regulations, is set at 16% of the basic salary and family allowances. It is paid only to eligible EU officials and agents, notably those who did not hold citizenship nor establish residency or employment in the State where is located their

place of employment, for a period of reference of five years ending six months before they enter into service. This provision also includes a ‘neutralisation rule’, meaning that the periods for when these staff members had worked for another State or an international organisation in their place of employment are not taken into account for the purpose of calculating the period of reference. Background QB, a Polish national, served as a judge in Poland and was subsequently seconded to the National School of

Judiciary and Public (‘KSSiP’), a central State body. Between December 2013 and June 2019, he was appointed, via a secondment agreement, as Secretary General of the EJTN, an international non-profit association governed by Belgian law and established in Brussels. In parallel, QB retained duties at the KSSiP, as chief specialist within the International Cooperation Centre. The agreement signed between the KSSiP and the EJTN stated that

the Applicant would need to be present at both the KSSiP’s main office in Poland and the EJTN’s premises in Brussels, as well as any other location relevant to the EJTN’s activities or where his presence was deemed beneficial for the the association.

QB lived with his family in Brussels between 1 January 2014 and 30 June 2019. Following the expiry of his mandate within the EJTN in June 2019, the Appellant and his family returned to Poland.

6 months later, as from 1 January 2020, QB joined the European Commission in Brussels as a member of the temporary staff. When establishing his financial entitlements, the Office for the ‘Administration and Payment of Individual Entitlements’ of the European Commission (PMO) refused to grant him the expatriation allowance.

QB challenged this decision before the EU General Court, claiming notably that the PMO infringes Article 4(1)(a) of Annex VII to the Staff Regulations on expatriation allowance, regarding the determination of his

habitual residence, main occupation, and the non-application of the exception for work done for another State, and committed a manifest error of assessment in the application of the conditions for the expatriation allowance. www.eulawlive.com

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The General Court dismissed the action in its entirety (case T-71/21), concluding that QB’s main occupation

during the reference period was performed in Belgium while serving as the Secretary General of the EJTN and

that the exception for work done for another State did not apply since he was not integrated into the permanent representation of the Polish State in Belgium.

QB appealed the judgment of the General Court, arguing that the latter judgment was vitiated by errors of law

in interpreting and implementing the conditions to be eligible to the expatriation allowance to his specific case, considering that he held simultaneously two positions in two different Member States during the period of reference of 5 years, and that the ‘neutralisation rule’ should have been applied. Analysis The Court conducted a two-step analysis. First, it assessed whether an error of law was committed in identifying

the main occupation carried on by QB. Second, and as a subsequent condition, it verified whether that occupation may be classified as ‘work done for another State or for an international organisation’. Main occupation Considering the specific working arrangements applicable to him during the period of reference, QB challenged, in essence, the General Court’s conclusions that his main occupation, during the reference period, was that of

Secretary General of the EJTN and that the place where that occupation was pursued was Brussels. To support his claims, he referred, inter alia, to the absence of employment relationship between him and the EJTN, to the fact that he still had the status of national judge and that his supervisory authority was still the KSSiP.

To interpret the concept of ‘main occupation’, which is not defined in the Staff Regulations, the Court logically followed the principles for the purpose of interpreting a provision of EU law it is necessary to consider not only

its wording but also its context and the objectives of the legislation of which it forms part (C-366/21 P, para. 70). To establish the main occupation, the Court considered factual elements rather than formal elements relating

to the Appellant’s legal or contractual status. It emphasised that what matters is not so much the employment

relationship between the individual and the entity for which the occupation is carried out, but the fact that the

individual regularly and remuneratively engages in this occupation, devoting most of their working time to it and earning the majority of their professional income from it.

The Court highlighted the significance of stable and continuous circumstances that establish the nature of such an occupation and determine its location. These circumstances include allocating the person’s working time during the reference period and the place where they were required to spend that working time.

This interpretation of the concept of ‘main occupation’ is, according to the Court, in line with the objectives of

the payment of an expatriation allowance, which have been constantly defined as to compensate officials for the

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obliged to change their residence and move to the State of employment and to integrate themselves into a new environment (see, notably, case C-211/06 P). The concept of expatriation also depends on the personal position

of the staff member, that is to say, on the extent to which he or she is integrated into his or her new environment, which is demonstrated by habitual residence or by the characteristics of the main occupation pursued.

Based on this reasoning, the Court concluded that the position of Secretary General of the EJTN was an occupation regularly undertaken by the Appellant, involving an agreement between his employer, the Polish Ministry of Justice, and the EJTN. Additionally, the Court noted that the Appellant devoted a significant part of

his working time to this occupation, received a substantial remuneration for this work and was granted benefits in kind corresponding to a requirement of presence in Brussels, notably the use of an apartment where the Appellant and his family resided throughout the entire reference period.

Hence, the judges did not find an error of law in the determination of the Appellant’s main occupation during the period of reference.

The Court’s factual approach is consistent with recent case law developments regarding entitlement to the expatriation allowance. Notably, to assess whether EU officials teleworking from a Member State other than their

place of employment during the Covid-19 pandemic were still entitled to the expatriation allowance during that

period, the Court assessed scrupulously the duration of work outside their place of employment and whether these officials effectively continued to bear financial burdens at their place of employment, such as rent, energy bills or loan repayments, resulting from performing their duties within the Union in a new country (see Op-Ed T-39/21). In the same vein, in case T-466/21 (paras. 75-105) the Court engaged in extensive analysis of factual

evidence for determining whether the applicant’s place of habitual residence during the reference period was outside the place of employment. Work done for another State The second ground of the case revolves around the interpretation of the concept of ‘work done for another State’ as outlined in Article 4(1)(a) of Annex VII to the Staff Regulations. The Appellant contested the General Court’s

interpretation, arguing that it improperly limited the concept of work done for another State to the work done within a permanent representation of a State and failed to consider his role as a national judge for the KSSiP.

The Court of Justice highlighted the expatriation allowance’s objective of addressing disparities arising from ties to another State, obstructing integration in the State of employment. Functional integration within a permanent

representation of a State, which includes notably various privileges and immunities under the Vienna Convention is emphasised as a crucial factor in determining the scope of ‘work done for another State’.

In the present case, the Court found an error of law in the General Court’s judgment which concluded that the

Appellant was not integrated in a permanent representation of a Member State, without examining whether, in

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concreto, the Appellant conducted his main occupation of Secretary General of the EJTN within a diplomatic representation of another State, which might be determined as ‘work done for another State.’

Being sufficiently informed to rule itself on the substance of the case, the Court examined whether the exception for ‘work done for another State’ should apply to the work done by the appellant within the EJTN.

The Court did not challenge the fact that the Appellant, being a national judge seconded to the KSSiP, had a direct link with the State other than the State of employment during the period of reference.

The existence of a direct link with a State is indeed a prerequisite, as constantly recalled by the EU Courts. For instance, tasks undertaken for another State, or an international organisation are deemed relevant only in situations where the work arises from a direct legal affiliation between the individual involved and the concerned

State or international organisation. This could include scenarios such as engaging in a traineeship or entering an

expert contract. However, such considerations cannot be extrapolated to include the spouse of a diplomatic agent (T-592/18, para 36-37).

However, a direct link with the State other than the State of employment is not sufficient, as the Appellant has to prove engagement within a diplomatic representation of another State.

On this last point, the Court found that the conditions were not met, pointing out that the EJTN is an international

non-profit association governed by Belgian law, which operates independently from a permanent representation, and the absence of benefits such as privileges or immunities granted to the appellant. Moreover, it underscored that the Appellant was subject to the oversight of the EJTN Steering Committee in his capacity as the Secretary General. The Appellant’s role as a national judge seconded to the KSSiP deemed irrelevant to this conclusion. Conclusion The Court of Justice’s judgment in QB v. European Commission sheds light on the complexities surrounding

the determination of the expatriation allowance for EU staff members, in the context of a constantly changing working environment, where the concept of professional occupation may take many forms and work be performed

from various places. To face this challenge, the Court of justice stresses the significance of all the factual elements to be rigorously considered when setting up their staff members’ financial entitlements.

The judges do not hesitate to go by themselves into an in-depth assessment of the factual circumstances of each case, notably because Article 91(1) of the Staff Regulations confers on the Court unlimited jurisdiction in

disputes of a financial character (see notably case T-473/04). As such, the Court has the power to declare that a staff member is entitled to the payment of an expatriation allowance, if the conditions are met.

More generally, this very factual approach may be perceived as giving a wide margin of discretion to the EU

Institutions on the application of provisions pertaining to the expatriation allowance, which may need to be

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further clarified. However, envisaging a recast of the EU Staff Regulations to notably clarify these provisions

would leave the door open to certain Member States’ willingness to remove the right to expatriation allowance

from the EU Staff Regulations, with far more significant consequences for the attractivity and functioning of the EU human resources.

Anaïs Guillerme is a lawyer specialised in EU law, with a specific expertise in EU institutional matters, Human Resources and CFSP. She regularly pleads before the EU Courts. Louise Bouchet is a legal adviser specialised in EU law, including EU institutional matters and Human Resources.

SUGGESTED CITATION: Guillerme, A. and Bouchet, L.; “EU staff members’ eligibility to the expatriation allowance: get down to the facts (QB v Commission, C-88/22 P)”, EU Law Live, 15/11/2023, https://eulawlive.com/op-ed-eu-staff-members-eligibility-to-the-expatriation-allowance-getdown-to-the-facts-qb-v-commission-c-88-22-p-by-anais-guillerme-and-louise-bouchet/

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“The application of the ‘inclusion’ clause to Palestinian refugees on medical grounds – A cautious opening in SW (C-294/22)” Janine Silga In the aftermath of the tragic events of 7 October 2023, followed by the relentless bombing in the Gaza strip, the plight of Palestinian refugees has again come to the fore. On 5 October, the Court of Justice ruled on an important case (SW, C-294/22) which may draw renewed attention in light of the current events.

As the number of civilian casualties keeps rising – including a significant proportion of children and other vulnerable persons – the United Nations Relief and Works Agency for Palestine Refugees in the Near East

(UNRWA) has been facing extraordinary difficulties to cope with the situation. UNRWA was established in 1949

as the United Nations (UN) Agency for the protection and assistance of ‘stateless persons of Palestinian origin’ (Palestinian refugees) and it currently provides assistance to about 5.9 million Palestinian refugees. UNRWA operates in: Gaza, Jordan, Lebanon, Syria and the West Bank (including East Jerusalem) and its mandate was

recently extended until 30 June 2026. In his Opinion in the present case, Advocate General (AG) Emiliou recalls that UNRWA is mostly funded by voluntary contributions from UN Members (Opinion, point 50). Since the

start of the events unfolding in Gaza, UNRWA has recorded a loss of more than 100 of its staff and its operational capacity has been severely curtailed. Background to the case In SW, the applicant in the main proceedings is a Palestinian refugee born in Lebanon. He is registered with

UNRWA and, therefore, eligible to receive protection and assistance from it. SW suffers from thalassemia, a

serious genetic disease requiring specific medical treatments including regular blood transfusions. Due to lack of funds, UNRWA could not give him the medical care that he needed. For this reason, he left Lebanon and upon his arrival in France in August 2019, he applied for asylum.

His application was first rejected by the French Office for the Protection of Refugees and Stateless Persons (‘Office

Français de Protection des Réfugiés et des Apatrides’ – OFPRA). He appealed that decision and the French

National Court of Asylum (‘Cour nationale du droit d’asile’ – CNDA) annulled it while confirming his refugee status. The OFPRA subsequently lodged an appeal on a point of law against the decision of the CNDA before

the French Council of State. The latter then referred two questions to the Court of Justice on the interpretation of Article 12(1)(a) of Directive 2011/95 (‘Qualification Directive’). This provision deals with the specific regime

that applies to Palestinian refugees, in accordance with Article 1D of the 1951 Geneva Convention relating to the status of refugees (‘1951 Geneva Convention’).

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The specific protection regime for Palestinian refugees: The ‘exclusion’ and ‘inclusion’ clauses As required by Article 78(1) TFEU, Article 12(1)(a) of the Qualification Directive essentially reproduces

Article 1D of the 1951 Geneva Convention. In its observations presented in El Kott (C‑364/11), the UN

High Commissioner for Refugees (UNHCR) explained the twofold rationale for this specific regime: to avoid overlapping competencies between UNHCR and UNRWA and to ensure the continuity of protection and assistance for Palestinian refugees whose refugee character has been long acknowledged.

More concretely, Article 1D provides for the application of both an ‘exclusion’ clause and an ‘inclusion’ clause

(Opinion, points 19-21). According to the ‘exclusion’ clause, third-country nationals or stateless persons who are receiving ‘protection or assistance from organs or agencies of the United Nations other than the United Nations

High Commissioner for Refugees’ are excluded from the refugee status. However, whenever ‘such protection or

assistance has ceased for any reason (…) those persons shall ipso facto be entitled to [the refugee status] (…).’ This constitutes the ‘inclusion’ clause. While this provision – and as a result Article 12(1)(a) of the Qualification Directive – is formulated in general terms, in practice, this regime only pertains to the situation of Palestinian refugees.

The conditions under which Palestinian refugees may be entitled to the refugee status in accordance with the

‘inclusion’ clause have been subject to the judicial scrutiny of the Court of Justice. First, in Bolbol (C-31/09), the

Court concluded that only Palestinians who have ‘actually availed’ themselves of the protection or assistance of UNRWA – as opposed to those who are only eligible to it – would be considered to fall within the scope of Article 12(2)(a) of the Qualification Directive. Second, in El Kott, the Court gave some important precisions on how

to interpret the circumstances in which the protection of a Palestinian refugee ‘has ceased for any reason’. The Court especially mentioned that this is the case when a person who ‘after having actually availed himself of such protection or assistance, ceases to receive it for a reason beyond his control and independent of his volition’ (El

Kott, para. 65). This includes a situation in which a person was forced to leave the area of operations of UNWRA because their ‘personal safety was at serious risk and it was impossible for that agency to guarantee that [their] living conditions in that area would be commensurate with the mission entrusted to it.’ (El Kott, para. 65). In

this respect, the intention of UNRWA – or the State in which it operates – to deprive a Palestinian refugee of assistance is irrelevant (NB and AB, C-349/20, para. 72).

In the present case, the question was precisely whether the applicant fulfilled this double condition to benefit from the ‘inclusion’ clause.

The ‘inclusion’ clause covers UNRWA’s failure to meet the basic health needs of Palestinian refugees To the question as to whether the failure of UNRWA to provide adequate medical care equates to the cessation of

its mission, both AG Emiliou and the Court gave a positive answer. Following the very clear and precise guidance of its AG, the Court found that ‘providing health assistance to Palestine refugees to meet their basic needs (…)

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forms part of the mission of UNRWA’. This means that when it ‘becomes impossible for the latter, for any reason, to guarantee that health assistance, UNRWA’s assistance (…) ceases (…)’ (para 40). While the conclusion of the

Court is straightforward, the underlying question on the extent to which the provision of healthcare is part of UNRWA’s mission could have been tricky for two main reasons. First, the interpretation as to what constitutes UNRWA’s ‘assistance to meet [Palestinian refugees’] basic health needs’ was subject to an intense debate. In his Opinion, AG Emiliou extensively examined this question providing the gist of the Court’s conclusion on this

point (Opinion, points 56-63). In this sense – and unlike the interpretation proposed by the Belgian and French Governments – the nature of the care or medication needed is immaterial. Finding otherwise would make the

entitlement of Palestinian refugees to the ‘inclusion’ clause dependent upon the operational capacity of UNRWA, which is inherently contingent (paras. 41-42).

Second – and also in agreement with its AG – the Court implicitly rejected the solution proposed by the French

Government to consider that the situation of the applicant fell outside of the scope of the Qualification Directive. The French government was referring to recital 15 of the Qualification Directive whereby Member States may allow third-country nationals and stateless persons to remain in their territories ‘for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian grounds.’ Another

reason for this ambiguity stems from the case-law of the Court itself, which clearly excludes from the scope of

international protection the situation of persons suffering from a serious illness, unless they are intentionally

deprived of healthcare (M’Bodj, C‑542/1, para. 41). As proposed by its AG, the Court prioritised the specific legal qualification of Palestinian refugees over national measures falling beyond the scope of international protection. A positive decision subject to strict conditions In SW, the Court – following extensively its AG’s Opinion – found in a positive sense for Palestinian refugees

whose basic health needs cannot be fulfilled by UNRWA. However, this is subject to strict conditions. Indeed, the Court warned that the impossibility for UNRWA to provide specific care or treatment did not mean that

its assistance had ceased (SW, para. 43). In this sense, the Court required that for the ‘inclusion’ clause to apply

effectively in the situation of a Palestinian refugee whose necessary medical care cannot be provided by UNRWA, this person must be ‘exposed to a real risk of imminent death or to a real risk of suffering a serious, rapid and

irreversible decline in his or her state of health or a significant reduction in life expectancy’ (SW, para. 46). This very high threshold in the severity of the state of health of a Palestinian refugee was suggested by AG Emiliou, in line with the corresponding case-law of the European Court of Human Rights (Opinion, points 79-82).

To speculate on the reasons for which the Court concurred with this notoriously high threshold, the Opinion of

AG Emiliou is particularly enlightening. Probably to assuage the concerns of Member States, he clearly insists

that the application of the ‘inclusion’ clause in these circumstances has to remain exceptional (Opinion, point 74). As he argues, ‘[t]he level of severity must (…) be sufficiently high to act as a limiting factor and to avoid such “pick and choose” cases, as well as a “floodgates” situation with endless requests for asylum from [Palestinian refugees] …’ (Opinion, point 75).

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Given the turn of the events currently taking place in Gaza, it remains to be seen whether the imposition of strict

conditions for the application of the ‘inclusion’ clause will withstand the overall open approach of the Court in this case.

Janine Silga is an Assistant Professor of EU Law at Dublin City University. Her recent publications include ‘Differentiation in the EU Migration Policy: The “Fractured” values of the EU’ (European Papers) and ‘The ambiguity of the European Union policy discourse on the Migration and Development Nexus: Perpetuating the Colonial Legacy?’ (UCLA Journal of International Law and Foreign Affairs).

SUGGESTED CITATION: Silga, J.; “The application of the ‘inclusion’ clause to Palestinian refugees on medical grounds – A cautious opening in SW (C294/22)”, EU Law Live, 17/11/2023, https://eulawlive.com/op-ed-the-application-of-the-inclusion-clause-to-palestinian-refugees-on-medical-groundsa-cautious-opening-in-sw-c-294-22-by-janine-silga/

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“Breathe new life into Köbler” Hans van Meerten Introduction I believe that when judges of a Member State refuse to ask preliminary questions to the EU Court, this might lead

to –under specific circumstances– State liability in the sense of the Köbler judgement (C-224/01). A recent Opinion of Advocate General (AG) Emiliou in case Commission v. United Kingdom (C-516/22) fuels this believe. This OpEd only focuses only on one of the aspects of the case (other Op-Eds in EU Law will cover the other issues raised by the case).

National last instance courts are generally required to refer questions of EU law to the Court of Justice for a preliminary ruling when necessary to reach a decision.

There are two circumstances in which a national court may choose not to make a reference, known as the ‘acte clair’ and ‘acte éclairé’ situations.

The ‘acte clair’ situation arises when the correct application of EU law is so obvious that there is no reasonable doubt as to how the question should be resolved, provided that this is equally obvious to other courts and tribunals of last instance in Member States and the Court of Justice.

The ‘acte éclairé’ situation arises when the question raised is materially identical to a question that has already been

the subject of a preliminary ruling in a similar case or has already been addressed in previous decisions of the Court, even if the questions are not strictly identical.

The AG sheds some new light on State liability? The AG writes – in my words – the following. The possibility for a court of last instance not to refer must be assessed based on the characteristics of EU law, the difficulties posed by interpreting it, and the risk of divergent judicial decisions within the EU. This is standard caselaw.

In this case, although the AG believes that the national Supreme Court from the UK –the UK was still subject to

EU law– misinterpreted the relevant provision, Article 351 TFEU, this alone does not necessarily mean that the court breached its duty to refer.

Other factors suggest that the questions of interpretation raised before the Supreme Court were not easily resolved. The concise wording of Article 351 TFEU did not provide clear guidance, and both parties presented arguments that could not be immediately dismissed as unfounded.

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The Supreme Court’s interpretation was constructed from various EU case law –‘bits and pieces’ in the words of the AG– some of which could have suggested an alternative reading.

It is also unclear whether the interpretation adopted by the Supreme Court would have been equally obvious to other courts and tribunals in Member States and the EU Court of Justice. Given that arguments based on Article 351 TFEU had been raised in ongoing national proceedings before courts of different jurisdictions, the Supreme Court should have exercised caution in reaching its decision, the AG concludes. Commentary Although the AG did not conclude it in exact words, I believe this conclusion –if followed by the EU Court– will and must trigger ‘Köbler State liability’.

I believe that a Member State acts unlawfully by wrongfully failing to ask a preliminary question, and that the State is thus liable on the basis of unlawful jurisprudence within the meaning of the Köbler judgment.

As is well known, there are three cumulative conditions for assuming State liability, i) the breach is sufficiently

serious; ii) the rule of EU law infringed is intended to confer rights on individuals and iii) there is a direct causal link between that breach and the loss or damage sustained.

That the violation (breaching Article 267 TFEU) is sufficiently serious (‘manifest’) has been thoroughly pointed out by the AG.

The second criterion is more difficult. It might be argued that the preliminary reference mechanism does not confer rights on individuals.

This is wrong for two reasons. First, I would like to point at a Dutch Case (own translation): [1] ‘The State has also put forward the defence that the violated rule of Article 267(3) TFEU is not intended to confer rights

on individuals. This defence does not stand up. It follows from the Köbler judgment (CJEU, C-224/01) that it is primarily

in order to prevent the infringement of rights conferred on individuals by Community law that a court, whose decisions are

not appealable, is obliged to refer to the CJEU (at 35). This satisfies the requirement that the rule infringed is intended to

confer rights on individuals. The fact that this rule also has other objectives, such as the uniform interpretation of EU law, does not preclude it.’

That Article 267 TFEU does not constitute an independent ground (for individuals) for a violation of EU law

– for example pleaded by the Dutch State – is of course also false. This is standard EU case law (e.g. C-416/17). Moreover, the Dutch Court held (own translation): [2]

‘The State argues, first of all, that the mere breach of the court’s obligation, against whose decisions there is no judicial remedy, to ask preliminary questions cannot be a ground for liability. According to the State, the failure to ask preliminary questions www.eulawlive.com

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can only be a circumstance relevant to the question of whether such a court violated substantive EU law. The court of appeal will leave this argument unanswered and presume that, in principle, such an omission can provide an independent basis for unlawful action.’

Second, the failure to comply with the duty to refer deprives individuals from rights to an effective remedy as enshrined in Article 47 Charter.

The idea that the current Article 267 TFEU ‘is not a remedy for the benefit of the parties in a dispute pending before

the national court’ (C-283/81, CILIFT, para 9) predates the entry into force of the EU Charter of Fundamental

Rights. [3] The rights under Article 47 Charter aim to guarantee the right to effective judicial protection, and refusing to ask a preliminary question may, in circumstances, result in a violation of Article 47 Charter. It must therefore necessarily follow that Article 267 TFEU does confer rights. Then the third requirement from Köbler, the causal link between the breach and the damage suffered. Until now, an almost impossible hurdle to overcome.

If it must be shown what the situation would have been if preliminary questions had been asked, this would make

the Köbler State liability a dead letter in this respect. This can never be met. I argue – also before national courts – that this should be read differently. It must suffice that an individual has suffered damages already.

To conclude, I would like to embrace EU judge Kornezov [4] words, writing extra-judicially, in Common Market Law Review:

‘The time might thus have come to breathe new life into the Köbler case law and hold, on that basis, that Member States are liable for non-material damage arising from a manifest breach of Article 267(3) TFEU’ When the EU court rules in this Case, a more detailed analyses will follow.

Hans van Meerten is Professor European Pension Law, Faculty of Law, Economics and Governance. [1] Hague Court of Appeal, 25 October 2016, ECLI:NL:GHDHA:2016:2984. [2] The Hague Court of Appeal 25 October 2016, ECLI:NL:GHDHA:2016:2984, para 3.8. [3] A. Kornezov, ‘The new format of the Acte Clair doctrine and its consequences’, Common Market Law Review 2016, p. 1340. [4] Ibid.

SUGGESTED CITATION: Van Meerten, H; “Breathe new life into Köbler”, EU Law Live, 13/11/2023, https://eulawlive.com/op-ed-breathe-new-lifeinto-kobler-by-hans-van-meerten/

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“Infringement and Criminal Penalties: Striking the right balance in Intellectual Property cases” Manon Verbeeren On 19 October 2023, the Court of Justice issued a decision regarding the enforcement of intellectual property rights in the context of criminal proceedings (C-655/21). With this decision, the Court provides important

clarifications about the application of the legality and proportionality principles provided for by Article 49 of the Charter to offences and penalties imposed in case of trademark infringement. Setting the scene The facts of this case date back to 2016, when the Bulgarian Ministry of the Interior seized, during an inspection, goods suspected of infringing trademark rights. Such goods were offered for sale by G. ST. T., the owner of a company selling clothes, and had a total value estimated at 759.000 €.

In Bulgaria, trademark infringement can be considered both as an administrative offence (Article 81 of the Law on trademarks) and a criminal offence (Article 172b of the Criminal Code). Article 172b(2) of the Criminal Code provides for a penalty of imprisonment of 5 to 8 years, if the infringement is repeated or causes ‘significant harmful effects’.

In this case, the Bulgarian Prosecutor’s Office considered that the infringing activity had caused ‘significant harmful effects’. G. ST. T. was therefore brought before the Nesebar District Court (referring court), which decided to stay proceedings and refer four questions to the Court of Justice for a preliminary ruling. The questions referred to the Court of Justice The first and second questions relates to the terms ‘significant harmful effects’ which constitute elements of the criminal offence of aggravated trademark infringement in Bulgarian legislation. The referring court asked, among

others, whether Article 13 of Directive 2004/48 must be interpreted as precluding reference to the prejudice caused to assess a criminal offence.

By its third question, the referring court asks if Article 172b(2) of the Criminal Code complies with the principle of legality of criminal offences (as enshrined by Article 49 of the Charter). Bulgarian legislation provides that

certain trademark infringements may amount to both an administrative offence and a criminal offence without including criteria allowing a distinction to be drawn between such offences.

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By its fourth question, the referring court takes the view that the penalties provided for in Article 172b(2) of the Criminal Code are extremely serious and therefore asks if they are consistent with the proportionality principle established in Article 49 of the Charter. Admissibility and jurisdiction In its decision, the Court of Justice begins by assessing whether it has jurisdiction and whether the request submitted to it is admissible.

Inadmissibility of the first and second questions Regarding admissibility, the Court reminds that questions referred for a preliminary ruling must be ‘necessary’ to

enable the referring court to ‘give judgment’ (C‑508/19, paras. 59-61). In this case, the Court of Justice considered

that it follows from the provisions of Directive 2004/48 that such directive grants Member States the option of

legislating to provide for criminal offences and penalties in respect of infringement of intellectual property rights, but does not govern such offences and penalties. Therefore, the Court of Justice considers that the interpretation

of Directive 2004/48 is not necessary to issue a judgement in this case and finds the first and second questions inadmissible.

Jurisdiction for the third and fourth questions Regarding jurisdiction, the Court reminds that the Charter applies to Member States only when they are implementing EU law (Article 51(1)). As previously held by the Court, when Member States perform their

obligations resulting from an international agreement entered into by the European Union, they must be considered to be implementing EU law, within the meaning of Article 51(1) of the Charter (C‑66/18, paras. 69 and 213).

Since Article 61 of the TRIPS Agreement states that Members States shall provide for criminal procedures and

penalties to be applied in cases of trademark infringement, the Court considers that national laws implementing criminal offences and penalties should be considered as implementing EU law. Therefore, the Court of Justice follows the Opinion of the Advocate General and considers itself competent to reply to such questions. Legality of the offences and penalties Under the legality principle, criminal law provisions must clearly define the offences and penalties which they

attract. The individual should therefore be in a position, on the basis of the wording of the relevant provision

(and of case-law), to know which acts or omissions will make him or her criminally liable (C-570/20, para. 38). Moreover, Member States may impose, for the same acts, a combination of administrative and criminal penalties (C-107/23, para. 84).

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for the national legislation to contain criteria allowing a distinction to be drawn between the administrative offence and the criminal offence. Proportionality of the penalties According to Article 49(3) of the Charter, ‘the severity of penalties must not be disproportionate to the criminal

offence’. The case law of the Court of Justice assesses the proportionality principles in light of the following criteria:

• The severity of the penalties must be commensurate with the seriousness of the infringements and should not go beyond what is necessary to attain that objective (C-570/20, para. 45);

• The individual circumstances of the particular case must be taken into account in determining the penalty (C‑384/17, para. 45) and

• There should be possibilities to vary the penalty depending on the seriousness of the offence identified (C-77/20, para. 51).

In this case, the Court of Justice considers that Article 172b(2) of the Criminal Code covers an especially broad

description of an offence since it refers to any act of use, in the course of trade, of a mark without the consent of

the holder of the exclusive right that has been committed repeatedly or has caused significant harmful effects. Therefore, the Court of Justice takes the view that the custodial sentence of a minimum of five years could be disproportionate in certain instances of trademark infringements (for example, in case of repeated infringements with limited effects). Moreover, Bulgarian legislation contains very few circumstances in which penalties can be reduced.

In view of the above, the Court of Justice concludes that Article 172b(2) of the Criminal Code does not comply with the proportionality principle since it does not guarantee that the competent authorities are able to ensure

in each individual case that the severity of the penalties imposed does not exceed the seriousness of the offence identified.

This last consideration opens the door to an analysis by the Court of Justice of the criminal penalties provided for in the national legislation of the Member States in case of infringement of intellectual property rights.

Manon Verbeeren works as legal counsel and intellectual property (IP) attorney in an IP law firm based in Belgium. She holds a Master of Law (Civil and Criminal Law) (UCL) and a Master of Intellectual Property & ICT Law (KU Leuven).

SUGGESTED CITATION: Verbeeren, M.; “Infringement and Criminal Penalties: Striking the right balance in Intellectual Property cases”, EU Law Live, 16/11/2023,

https://eulawlive.com/analysis-infringement-and-criminal-penalties-striking-the-right-balance-in-intellectual-property-cases-by-manon-

verbeeren/

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“DMA specification decisions – an interesting feature of public enforcement and its interaction with private enforcement” Assimakis Komninos. The designation decisions of 5 September 2023 are now behind us (see here). The substantive obligations of

the Digital Markets Act (“DMA”) will be binding on gatekeepers as of 7 March 2024, i.e., six months after the designation decisions were served (6 September 2023). By that date, the gatekeepers will be bound by and will

need to bring themselves into full and effective compliance with all DMA substantive obligations, as is clear from Articles 8(1), 13(3), (4) DMA.

So what are the next possible decisions that the Commission can adopt for the designated gatekeepers? The two

most important types of decisions are “specification decisions”, adopted under Article 8(2) DMA, and “noncompliance decisions”, adopted under Article 29 DMA. These are called “implementing acts” by the DMA and

they are nothing more than individual administrative acts addressed to specific undertakings. In this Op-Ed, I would like to examine specification decisions. I also have some thoughts on how such decisions can interact

with private enforcement. As is known, the DMA is open to private enforcement and this may give rise to fragmentation and conflicts (I addressed this at a paper prior to the DMA’s adoption).

Article 8(2)-(9) DMA provides for the conditions and procedures for the adoption of such decisions. For reasons that may have been evident to the legislator but are rather obscure to me and other commentators, specification decisions can only be adopted for Articles 6 and 7, but not for Article 5 DMA. In fact, the reference to Article 5 DMA in the last sentence of Article 8(2) DMA is limited to the proceedings initiated by the Commission for circumvention pursuant to Article 13 DMA and, therefore, lies outside the scope of the formal specification procedure. Thus, for Article 5 DMA obligations, the Commission cannot ex officio open proceedings

with a view to adopting a specification decision and a gatekeeper cannot request to enter into a “regulatory dialogue” that will lead to a specification decision. That being said, informally, I expect the Commission to be open

to a discussion over the appropriate compliance measures for Article 5 DMA obligations. I also do not exclude

that the Commission might issue a sort of “comfort letter” confirming a gatekeeper’s compliance with Article 5 DMA obligations.

With particular reference to the Article 6 and 7 DMA obligations, in accordance with Article 8(2) DMA, the

Commission may, on its own initiative or at the request of the gatekeeper, open proceedings pursuant to Article 20 DMA with a view to adopting an implementing act specifying the measures that the gatekeeper must implement in order to effectively comply with the above obligations.

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It is clear from Article 8(2) and Recital 65 DMA that the specification process does not vary or affect the nature

of each of the rules contained in Articles 6 and 7 DMA, which are self-executing, but only relates to the effective

compliance measures that gatekeepers need to implement. In other words, the obligations of Articles 6 and 7 DMA are fully binding on gatekeepers and can give rise to liability for non-compliance, irrespective of whether

the Commission has adopted a specification decision or not. Indeed, the rules of Articles 6 and 7 DMA are not specifiable and adjustable in themselves; only the required compliance measures are specifiable and adjustable. The

content of the legal rule is not affected by the specification process. The specification decision will only “tailor” the

specific compliance measures that are necessary in view of the specific gatekeeper and the specific CPS at stake. This important point explains why Article 8(4) DMA provides that the specification process is without prejudice

to the powers of the Commission regarding non-compliance findings (Article 29 DMA), fines (Article 30 DMA)

and periodic penalty payments (Article 31 DMA). In addition, before the adoption of the specification decision, the opening of proceedings and the initiation of a “regulatory dialogue” cannot be interpreted as a suspension of the applicability of the relevant Article 6 or 7 DMA obligation. As explained above, the relevant obligations

are self-executing and must be fully and effectively complied with as soon as the six-month period after the gatekeeper’s designation expires.

Article 8(2) DMA foresees two routes for the opening of proceedings with a view to the Commission adopting a

specification decision: (i) the Commission may do so ex officio or; (ii) the gatekeeper may request the Commission

to enter into a “regulatory dialogue” and the Commission may decide to accede to that request. (The term “regulatory dialogue” was used in the explanatory memorandum and a number of recitals in the original DMA Proposal but was dropped from the final text of the DMA, apart from a meagre reference to “dialogue” in Recital

65 DMA – still I continue using it because I find it quite appropriate.) In the latter case, the process begins with a reasoned submission by the gatekeeper, per Article 8(3) DMA, to explain the measures that it intends to implement or has implemented in order to ensure compliance with the obligations pursuant to Articles 6 and 7

DMA. Recently, the Commission published a Template (under the title “DMA Template (request for specification

dialogue)” – hence we now have a new adjective preceding the word “dialogue”) and specifies the information that gatekeepers should include in their reasoned submission. The Template goes slightly beyond the text of the DMA, asking for example the gatekeeper to indicate whether any alternative measures were considered, describe them and explain the reasons why they have been considered insufficient to ensure effective compliance with the

relevant obligation or why they have been discarded on other grounds as well as submit any internal document assessing these alternative measures.

The Commission will have discretion on whether or not to engage in the “regulatory dialogue” (Article 8(3)

DMA). In the former case, i.e., when the Commission opens proceedings ex officio, there is no mention of “reasoned submissions” by the gatekeeper and – based on a combined reading of paragraphs 2 and 3 of Article 8 DMA – the process seems less “co-operative” in this sense. For this reason, I would not speak of a “regulatory dialogue” in that

case. However, in real life, I expect the two types of proceedings not to be too different and nothing excludes the gatekeeper from making “reasoned submissions” to the Commission also in an ex officio proceeding.

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Article 8(3) DMA establishes that the Commission “shall have discretion in deciding whether to engage in” a “regulatory dialogue”. Since the Commission has no obligation to act and retains full discretion, this means that

the Commission’s failure to act and enter into a “regulatory dialogue” cannot be challenged under Article 265

TFEU (GEMA v Commission, Case 125/78, , EU:C:1979:237, para. 18). If the Commission, on the other hand, explicitly rejects the request with a letter, that measure is an act which could be challenged under Article 263

TFEU, but the Commission has a very wide margin of discretion, and the EU Courts’ review is bound to be very limited on that point (compare Amazon v Commission, Case C-815/21 P, EU:C:2023:308, para. 21) and will only

focus on whether the principles of equal treatment, proportionality and good administration have been respected. In terms of timing, since under Article 8(3) DMA, the “regulatory dialogue” can also be initiated about compliance measures that the “gatekeeper intends to implement”, it is clear that the “regulatory dialogue” can begin as soon as a gatekeeper has been so designated, i.e., there is no need to wait for the grace period of six months of Article 3(10) DMA to lapse.

The formal specification process kicks off with a decision to open proceedings in accordance with Article 20 DMA. The law does not provide for a timeframe within which the Commission should open proceedings. The

Commission could decide to open proceedings immediately after receiving a request for a “regulatory dialogue” by

a gatekeeper, although this may not happen in practice. The Commission will have to communicate its preliminary

findings within three months from the opening of proceedings as per Article 8(5) DMA. In the preliminary findings, the Commission should explain the measures that it is considering taking or that it considers the gatekeeper concerned should take. The preliminary findings, in effect, are similar to the Statement of Objections in antitrust proceedings.

Under Article 8 of the DMA Implementing Regulation, the addressee of the preliminary findings may request

access to the Commission’s file, with certain limitations. Under Article 6 of the DMA Implementing Regulation, the addressee of the preliminary findings may “succinctly” inform the Commission of its views in writing, while

also submitting supporting evidence. The term “succinctly” is further clarified in Annex II of the Implementing Regulation as follows: “the maximum number of pages of the written reply shall be 50 pages or the number of pages of

the preliminary findings, whichever is higher”. Incidentally, I would not take these limitations too seriously, since they place limits on the right to be heard prior to the adoption of an act adversely affecting the interests of an undertaking. If an undertaking has good reasons to exceed the page limitations, in order to make complete

representations to the Commission in accordance with their right to be heard, I do not see how the Commission will ignore such representations. Contrary to antitrust proceedings, there is no right to an oral hearing in the DMA (although, I guess, nothing would prohibit the Commission from holding one, but I would not count on

it). Finally, third parties can also make comments. Indeed, Article 8(6) DMA provides that the Commission, when communicating its preliminary findings to the gatekeeper or as soon as possible thereafter, shall publish a non-confidential summary of the case and the specified compliance measures to be adopted.

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In accordance with Article 8(2) DMA, the Commission has six months following the opening of proceedings (or

three months following the preliminary findings) to adopt an implementing act specifying the measures that the gatekeeper is to implement.

In terms of the content of the decision, I would expect the specification decision to be highly technical and tailormade. It could be limited to one or more core platform services (“CPSs”) and to one or more specific obligations prescribed in Articles 6 and 7 DMA. In all cases, the specification decision will be an individual implementing decision addressed to the gatekeeper concerned and will have erga omnes effects. As long as the specification

decision is sufficiently clear, precise and unconditional as to the obligations it imposes on its addressees and confers

rights on third parties to invoke these obligations (Grad, Case 9/70, EU:C:1970:78, paras 9 and 5, respectively, it

will enjoy direct effect and third parties will be able to rely on it before the national courts, e.g. by basing on the

specified compliance measures private law claims for injunctions or damages (in case of the gatekeeper’s noncompliance with those measures).

Gatekeepers can challenge the specification decision before the General Court through a direct action under Article 263 TFEU within two months and ten days from the adoption of the decision itself. As far as judicial

review arguments are concerned, much will depend on the specificities of the decision and the measures ordered. First, the gatekeeper can bring before the EU Courts questions about the formal legality of the specification

decision. For example, it can argue that the Commission violated the procedure or that there was no reasoning. Second, it can raise pleas about the specification decision’s substantive legality. For example, the Commission may have erred in the interpretation of Articles 6 and 7 DMA or may have erroneously rejected proposed measures

that equally ensure an effective compliance with the Article 6 and 7 DMA obligations. In addition, the specified

measures may violate general principles of EU law (e.g., principles of proportionality and legal certainty) or the undertaking’s fundamental rights (e.g., the fundamental right to conduct a business or right of property).

What I find interesting in the specification decisions is their possible interaction with private enforcement. National courts will soon have full competence to apply Articles 5, 6 and 7 DMA. Apart from adjudicating on claims for damages or other restitutionary relief, they will also be competent to grant permanent or interim

injunctions. Such injunctions will not obviously have erga omnes effect, like decisions of the Commission would

have. However, they would constitute res judicata inter partes, i.e., as between the “gatekeeper” and the other parties to the litigation. It is important to note that there is an inherent risk of divergence between the compliance

measures ordered by the Commission’s specification decision and the measures ordered by national courts in the

form of permanent or interim injunctions. Practically speaking, I can think of at least four scenarios here (see, by

analogy, Delimitis, Case C-234/89, EU:C:1991:91, para. 50 et seq.; Masterfoods, Case C-344/98, EU:C:2000:689, para. 45 et seq.):

Scenario 1: If the Commission has already specified compliance measures by means of an individual decision addressed to a gatekeeper, the national court will need to respect that decision and avoid taking measures against

its effectiveness. Recital 92 and Article 39(5) specifically impose this duty on national courts (compare Masterfoods, www.eulawlive.com

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Case C-344/98, EU:C:2000:689, para. 49). Of course, the possibility that the national court may go further than the measures “specified” by the Commission cannot be excluded. If such “over-enforcement” does not prejudice the effectiveness of the Commission decision, it may be allowed under EU law.

Scenario 2: If there is concurrently a pending specification process before the Commission and a judicial

proceeding before a national court, the national court could stay the proceedings until the Commission has

adopted its specification decision, especially if there is a risk of conflict between the measures to be specified by the Commission and those considered by the national court. Recital 92 and Article 39(5) again include a clear recommendation to that effect (see, by analogy, Delimitis, Case C-234/89, EU:C:1991:91, para. 52).

Scenario 3: If there is neither a final specification decision nor a pending proceeding before the Commission, the national court retains unfettered discretion. Of course, the gatekeeper may decide to act strategically and seek to pre-empt a possibly erratic outcome in national litigation, by engaging in a “regulatory dialogue” with the

Commission and notifying certain measures under Article 8(2) DMA. If then the Commission decides to open proceedings under Article 20 DMA, we go back to the second scenario above. If the Commission does not open

proceedings, the national court’s discretion remains intact. Another possibility linked to this scenario is for the gatekeeper to invite the Commission to intervene before the national court and submit observations per Article 39(3) DMA. The Commission retains full discretion to do so. This procedure, however, is very rare and gatekeepers

should not entertain high hopes that the Commission would intervene. In all cases, the national courts can always address preliminary reference questions to the Court of Justice, but the number of such references will not be high anyway.

Scenario 4: If there is a final judgment of a national court ordering specific measures or even finding no DMA

infringement, before the Commission has opened proceedings with a view to adopting a specification decision, obviously the national judgment does not bind the Commission. Indeed, such were the facts in Masterfoods and the Court of Justice unequivocally held that “the Commission is […] entitled to adopt at any time individual decisions

under Articles [101 and 102] of the Treaty, even where an agreement or practice has already been the subject of a decision

by a national court and the decision contemplated by the Commission conflicts with that national court’s decision” (op.cit., para. 48). The potential conflict is rather easy to resolve if the pre-existing national judgment is not final and is therefore still open to appeal or cassation. In that case, the higher court will be bound to respect the Commission’s

final or contemplated decision under the principles established in Masterfoods and Article 39(5) DMA. Formidable problems arise when the national judgment is no longer open to review and thus produces res judicata inter partes

effects. In pp. 124-136 of my 2008 book on EC Private Antitrust Enforcement, I have examined various scenarios and the possible ways to resolve such conflicts. Mutatis mutandis the same applies here.

All this shows that there may an additional benefit in gatekeepers engaging in a “regulatory dialogue” with the

Commission and triggering the specification procedure of Article 8(2) DMA: to pre-empt erratic remedies

ordered by national courts in injunction proceedings. Whether the Commission will “oblige” is, however, a different matter. In any event, a more complicated world will be in existence as of 7 March 2024…

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Dr Assimakis Komninos is a Partner at an international law firm in Brussels and a visiting professor at Université Panthéon Assas (Paris II)

SUGGESTED CITATION: Komninos, A.; “DMA specification decisions – an interesting feature of public enforcement and its interaction with private enforcement”, EU Law Live, 13/11/2023, https://eulawlive.com/competition-corner/op-ed-dma-specification-decisions-an-interesting-feature-of-publicenforcement-and-its-interaction-with-private-enforcement-by-assimakis-komninos/

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“The Role of the DMA in the Commission’s Review of Digital Mergers” Marija Momic and Ben Holles de Peyer This Op-Ed argues that the Digital Markets Act 2022/1925 (“DMA”) should impact the Commission’s

enforcement policy in digital mergers in two ways. First, the Commission should keep the DMA in mind when

deciding which digital mergers qualify for phase II proceedings, remedies, and ultimately prohibitions. Second, and relatedly, in formulating theories of harm in its review of digital mergers, the Commission should take into account the gatekeepers’ DMA obligations as a strong deterrent from engaging in certain types of conduct that could lead to foreclosure. Thus, when a digital merger involves a gatekeeper designated under the DMA, the Commission should limit its intervention to addressing conduct that is not already prohibited by the DMA.

This would enable the Commission to: (i) reduce the number of long and resource-intensive phase II investigations of digital mergers; (ii) reduce the number of phase I and phase II remedies decisions, and thereby the Commission’s post-merger monitoring activity; and (iii) focus on capturing the appropriate candidates for prohibitions.

The reasons for adopting the suggested enforcement policy are twofold. First, this would limit the risk of over-

enforcement in digital mergers, the consequences of which can be adverse for businesses and, most importantly, for consumers. Second, such an approach would ensure the efficient allocation of the Commission’s resources while enabling effective enforcement.

How does the DMA intersect with merger control in digital markets? Under Article 14 DMA, gatekeepers are obliged to inform the Commission of a concentration, prior to its implementation, where “the merging entities or the target of concentration provide core platform services or any other services in the digital sector or enable the collection of data”. This obligation applies regardless of whether Merger

Regulation 139/2004 (“EUMR”) or national merger control thresholds are met. It is broad in scope and will likely cover all mergers and acquisitions by gatekeepers.

Additionally, while the information provided by gatekeepers to the Commission under Article 14 DMA is less

far-reaching than that provided under the Form CO, it remains significant. According to Article 14(2) DMA

and to the Article 14 DMA Template, it includes, among others, information on the undertakings concerned, their activities, turnover and relevant core platform services, as well as on the transaction and the affected Member States.

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Article 14(4) DMA states that the Commission will share this information with the Member States and that it

will publish annually the list of concentrations by gatekeepers. According to Articles 14(5) and 36(2) DMA, as well as Recital 71 DMA, Member States may use this information for the purposes of national merger control, or a referral to the Commission under Article 22 EUMR.

Looking at Article 14 DMA in conjunction with Article 22 EUMR, one may reasonably expect an increase of merger control enforcement by the Commission, following the adoption of the DMA. Indeed, Article 14 DMA

creates full transparency and gives the Commission visibility over essentially all concentrations by gatekeepers. This can give rise to two scenarios leading to increased enforcement.

First, after the Commission has been informed of a concentration under Article 14 DMA, it may conclude that the transaction meets the EUMR thresholds even though it has not been notified under the EUMR. The

Commission will then be able to assert jurisdiction over the case and request that the gatekeeper file a Form CO. Second, if the transaction does not meet the EUMR thresholds, the Commission may still be able to review it under Article 22 EUMR. This provision, as interpreted in the Guidance, enables the Commission to review

digital mergers that may raise competition concerns even if neither the EUMR nor the national merger control thresholds are met (T-227/21; appeal pending C-611/22 P).The only caveat is that one or more Member States

must first refer the case to the Commission, although in practice this is unlikely to represent a meaningful hurdle. These provisions thus ensure the Commission will be able to review essentially all concentrations by gatekeepers that may give rise to competition concerns in digital markets. This outcome effectively removes the Commission’s

concern, articulated in its 2019 report Competition Policy for the Digital Era (see pages 113 to 116), that concentrations by Big Tech may escape the Commission’s jurisdiction.

Another intersection between the DMA and merger control enforcement is evident from Article 18(2) DMA. This provision empowers the Commission to ban a gatekeeper from entering into certain concentrations in cases of systematic non-compliance with the DMA, i.e., when the Commission has issued at least three non-compliance decisions against a gatekeeper for DMA violations during an 8-year period. In particular, the Commission

may prohibit concentrations regarding the gatekeeper’s core platform services or other services provided in the

digital sector, or enabling the collection of data affected by the systematic non-compliance. While this power is undoubtedly far-reaching, it is subject to two main limits under Article 18(2) DMA: the prohibition must be

“proportionate and necessary in order to maintain or restore fairness and contestability as affected by the systematic noncompliance” and it can only apply “during a limited period”.

How should the Commission approach the enforcement of digital mergers following the adoption of the DMA?

Although the adoption of the DMA may lead to the Commission reviewing more digital mergers, it also provides an opportunity for the Commission to rethink how it does so.

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The DMA and merger control under the EUMR are both forms of ex ante control which, albeit through different means, pursue similar – if not overlapping – objectives. The DMA relies on the outright proscription of certain

forms of conduct by gatekeepers providing core platform services, irrespective of the effects of such conduct. Merger

control, in turn, aims to determine whether a transaction is likely to significantly impede effective competition, by conducting an effects-based prospective assessment of market characteristic and business conduct. In carrying out

this assessment, in particular when examining vertical and conglomerate theories of harm, the Commission often analyses whether, post-transaction, the merged entity would have the ability and incentive to engage in specific forms of conduct leading to foreclosure.

It is our view that, when examining digital mergers by gatekeepers, the Commission should refrain from opening phase II proceedings, imposing remedies or prohibiting transactions on the basis of theories of harm which are

premised on the assumption that a gatekeeper will engage in conduct contrary to Articles 5 to 7 DMA. Indeed, gatekeepers are subject to intense scrutiny by customers and competitors, as well as by the Commission and other

agencies. This should facilitate the detection of conduct contrary to the DMA. Additionally, the DMA provides for very substantial fines for violations, i.e., up to 10 % of a gatekeeper’s total worldwide turnover in the preceding

financial year (up to 20% in case of repeated offenses). It also empowers the Commission to impose behavioral or structural remedies in case of systematic non-compliance. In these circumstances, the clear-cut nature of the

prohibitions under the DMA, which do not require proof of anticompetitive effects, coupled with the possibility

of ex post competition law enforcement, should provide sufficient disincentives for the merged entity to engage in such conduct. The Commission’s enforcement of digital mergers by gatekeepers should thus focus on conduct that is not already prohibited under the DMA.

This approach has the potential to simplify things. Over the past few years, the Commission has focused increasingly on digital markets, dealing with a number of cases involving now designated gatekeepers under the DMA. For instance, over the past five years, the Commission opened phase II investigations in Google/Fitbit

(M.9660), Meta/Kustomer (M.10262), and Microsoft/Activision Blizzard (M.10646), all of which were cleared subject to remedies. The Commission’s phase II investigation in Amazon/iRobot (M.10920) is still ongoing. By

contrast, the Commission approved Microsoft/Nuance (M.10290), Microsoft/Zenimax (M.10001), Amazon/MGM

(M.10349) and Google/Photomath (M.10796) unconditionally following phase I investigations. Most recently,

the Commission has prohibited Booking’s acquisition of eTraveli (Booking Holdings/eTraveli Group, M.10615). While Booking has not yet been designated a gatekeeper under the DMA, the company has stated publicly it expects to meet the DMA thresholds by the end of 2023 (see here).

Some of the theories of harm examined by the Commission in these cases assumed that the merged entity would act in a way that is now contrary to Articles 5 to 7 DMA. For instance, according to the Commission’s press release on the Amazon/iRobot investigation, the Commission is assessing whether, post-transaction, Amazon

would have the incentive to foreclose iRobot’s rivals by preventing them from selling robot vacuum cleaners on

Amazon marketplace or by degrading access. One of the foreclosure strategies examined by the Commission is the possibility that Amazon could favor iRobot’s products in both non-paid (organic) and paid (advertisements) www.eulawlive.com

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results displayed on Amazon marketplace. However, such a strategy would be contrary to Article 6(5) DMA, which prohibits certain forms of self-preferencing. Similarly, the Commission is assessing whether Amazon may use iRobot data to better rank organic results and ads on Amazon marketplace, or to better personalise and target

such ads. Yet Article 5(2)(b) DMA prohibits Amazon, in the absence of consent by end users, from combining

personal data from Amazon marketplace with personal data from “any other services provided by the gatekeeper.” Given the clear-cut DMA prohibitions to engage in these types of conduct, one may wonder whether such theories of harm are still worth pursuing from an enforcement policy perspective.

Ben Holles de Peyer (LLM, Harvard) is a référendaire at the Court of Justice of the European Union. He was previously a lawyer at an international law firm in Brussels and Washington D.C.

Marija Momic (LLM, Harvard) is an associate at an international law firm in Brussels and London. The views expressed herein are their own.

SUGGESTED CITATION: Holles de Peyer, B. and Momic, M. “The Role of the DMA in the Commission’s Review of Digital Mergers”, EU Law Live,15/11/2023,

https://eulawlive.com/competition-corner/op-ed-the-role-of-the-dma-in-the-commissions-review-of-digital-mergers-by-marija-

momic-and-ben-holles-de-peyer/

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SYMPOSIUM RECENT DEVELOPMENTS IN MERGER CONTROL ENFORCEMENT

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“EU merger control in the digital sector: an expanding toolkit, an evolving practice” Sean Mernagh The views expressed are strictly personal and can under no circumstance be attributed to the European Commission. In 1989, the first EU merger regulation came into force. In the 35 years since, it has been replaced in 2004 by

Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings

(“EU Merger Regulation”), and supplemented, refined and interpreted by implementing regulations, case law, guidelines, and notices. As European Union (EU) consumers, we have all benefited directly or indirectly from EU

merger control, as well as from the refinements and improvements over time of the EU merger control toolkit. Indeed, these refinements have enabled EU merger control to continue to be relevant, effective and fit for purpose as markets inevitably evolve and change over time.

Ten years after the first EU merger regulation, in 1998, the Google search engine was created. It too has been incrementally improved upon and changed over time, for example based on feedback and data collected from

users. As consumers, we have similarly benefited from such improvements, even if they may have also helped to maintain, or even expand, a gap with rivals.

In December 2022, I co-wrote a Digital Mergers Policy Brief highlighting the specific challenges raised by

digital merger, and providing an overview of the Commission’s decisional and remedies practice to date. In that publication, we outlined that certain particular characteristics of digital markets tend to amplify the anticompetitive

effects of mergers, even in the case of fringe acquisitions, for example stemming from strong network effects and

advantages generated by data access, which are generally integral to digital services. Even acquisitions of nascent players of companies operating in neighbouring or tangentially-related markets can reinforce the market power of large digital platforms, who may be able to stifle competition by reinforcing an already dominant position, or pre-empting competitive disruptions by small or nascent innovative players.

In this op-ed, I will first say a few words on jurisdiction and detection focusing on the expanding toolkit in this regard, including

and Digital Markets Act and amending Directives (EU) 2019/1937 and (EU) 2020/1828.

Second, I will outline my views on how the Commission’s assessment of digital mergers has evolved and adapted with experience, focusing in particular in cases from the past twelve months. Remedies in digital mergers is a hotly

debated topic, in particular on a perceived difference in approach between the Commission and other authorities around the world.

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The Commission’s approach to remedies in digital mergers is covered in some detail in the Digital Mergers

Policy Brief. I do not propose to revisit that here or add further observations, other than to reiterate a couple of high-level points. First, while divestiture remedies are the Commission’s benchmark, case law of the EU courts requires the Commission to at least consider if a non-divestiture remedy proposal would be effective in

removing competition concerns if proposed by the parties. So the Commission does not, and indeed cannot, reject

a particular type of remedy out of principle. In practice, while they have been accepted in some instances, e.g. Meta/Kustomer (M.10262) and Broadcom/VMWare (M.10806), they remain exceptional. These mergers tended

to involve particularly circumscribed and narrowly-defined anti-competitive concerns, a small set of readily-

identifiable remedy beneficiaries and a largely self-policing solution. In other recent digital and tech mergers, a divestiture remedy that would preserve the deal rationale was not available, and similarly the proposed non-

divestiture remedies were found to be insufficient to remove the concerns identified, leaving the Commission with

no option but to prohibit the merger, such as in Illumina/Grail (M.10188), and more recently in Booking Holdings/ eTraveli Group (“Booking/eTraveli”, M.10615). Expanded detection and jurisdictional tools As a result of several developments in the last couple of years, the Commission is now well-placed to detect and

take jurisdiction over digital mergers that may warrant review, even when they may not be notifiable at EU or even at national level. At the same time, the Commission’s expanded jurisdictional tools allow for targeting those small

number of potentially problematic cases that may otherwise escape review entirely. It was not intended to result

in a marked increase in the number of transactions reviewed, nor materially increase the administrative burden

on competition authorities or merging parties, and indeed the Commission’s case practice to date confirms this, as shown below.

First, a potential enforcement gap was closed with the Commission’s recalibrated approach to Article 22 of the EU Merger Regulation, and the legality of this approach was confirmed by the EU General Court in Illumina v Commission (T-227/21). Since the announcement of the new approach on 11 September 2020, three cases

were referred to the Commission under Article 22 by Member States without original jurisdiction (M.10188

– Illumina/Grail – Article 22 referral decision of 19 April 2023, M.11212 – Qualcomm/Autotalks – Article 22 referral decision of 17 August 2023, and M.11241 – EEX/Nasdaq Power – Article 22 referral decision of 18 August 2023), an average of around one per year. The relatively small number of cases shows that the recalibrated

approach to Article 22 remains, as envisaged, a safety net and not a catch-all. It is therefore normal that there has not been a flood of cases.

Of course, for each below-threshold case that is referred, are many other cases that are briefly assessed by the Commission before concluding that they would not be good candidates for referral. These have been detected

through a combination of ex officio monitoring, complaints from competitors or customers, and consultations with merging parties. Such monitoring is certain to continue and, in the digital sectors specifically, it will be boosted

by the recent designation of six digital firms as gatekeepers under the DMA. Under Article 14 of the DMA,

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gatekeepers are required to inform the Commission about every concentration they are involved in, regardless of the purchase price, sector or turnover of the target, allowing the Commission to assess whether the concentration

would be a good candidate for an Article 22 referral. Indeed, the Commission has already begun to receive such submissions.

As was indicated in the Q&A document with practical information on Article 22, merging parties have the option to voluntarily come forward with information about their intended transactions and request an early indication from the Commission on whether or not it considers their transaction to be a good candidate for an Article 22 referral. Indeed, early indication letters have already been issued in a number of cases.

Perhaps as a result of the increased focus on Article 22, there has also been an uptick in ‘traditional’ Article 22

referrals by Member States that had original jurisdiction to review the case as their national notification threshold were met. These include, for example, Meta/Kustomer (M.10262), Viasat/Inmarsat (M.10807) and Adobe/Figma

(M.11033). With certain Member States, including Italy and Ireland, introducing call-in provisions for belowthreshold transaction, it is possible that there could be a sustained increase in below-threshold mergers being reviewed at EU and indeed at national level.

Overall, there is a consensus that mergers, particularly in digital markets, can have far-reaching negative effects on competition in a market even if the target has little to no turnover at the time it is acquired. While these changes may result in a slight increase in complexity for lawyers advising on competition approvals, the Commission

stands ready to provide an early indication where requested and overall these new detection and call-in measures

represent a targeted and proportionate response to a perceived enforcement gap, ensuring that resources are focused on the small number of potentially problematic mergers, notably in the digital sector, that actually merit a careful review.

An increasingly sophisticated and bold assessment of digital mergers Despite calls from some quarters to reduce the standard of review or reverse the burden of proof in digital mergers, due to the perception that they may be particularly harmful to competition, the Commission has consistently held

the line that there should be no double standards in merger control, with the same rules, presumption and burdens of proof applying to all mergers regardless of the sector.

At the same time, it is true that mergers in digital markets can raise particular challenges for enforcers such as the Commission seeking to carry out a future-looking assessment of the likely impact of the deal. This is

particularly the case where the target may be a nascent player or where they market itself is nascent, going through a technological transition, or susceptible to tipping. The Court of Justice in its recent judgment in CK Telecoms (C-376/20 P, para 86) made clear however that since the assessment is necessarily prospective, this

“precludes a requirement for [the Commission] to meet a particularly high standard of proof in order to demonstrate that

a concentration would or would not significantly impede effective competition” (para. 86). Rather, the Commission is only required to show “by means of a sufficiently cogent and consistent body of evidence, that it is more likely than not www.eulawlive.com

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that the concentration concerned would or would not significantly impede effective” (para. 87). In other words, the same

standard of proof applies to all mergers, one of balance of probabilities, and this is irrespective of the complexity

of the theory of harm put forward. This seminal judgment from the EU’s highest court, which also confirmed

that the Commission may depart from its merger guidelines provided it justifies such an approach (para. 123), strengthens the Commission’s ability to formulate new theories of harm when necessary, notably in the face of new market realities brought up by digital mergers.

As outlined in the Digital Mergers Policy Brief, the Commission has developed, and continues to develop, a merger

case practice in relation to the digital sector based on sophisticated and dynamic competition theories of harm. That paper identified four broad, non-exhaustive, categories of digital theories of harm, namely (i) interoperability

degradation based on conglomerate relationships, (ii) access degradation based on vertical relationships, (iii) datarelated effects such as strengthening of a dominant position by combing datasets (in line with para. 36 of and

followed in Google/Fitbit (M. 9660) and Meta/Kustomer (M.10262)) or foreclosing access by others to such data, and (iv) ecosystem-related effects such as leveraging market power in one market to expand one’s ecosystem of products, or sophisticated forms of bundling or tying or strengthening of a company’s dominant position in one

“core” market in order to further lock customers in or incentivise them to remain within the acquirers “walled garden” of services.

Of these categories, which are not necessarily mutually-exclusive, the most frequently-discussed, and nebulous, is ecosystem-related effects. A number of recent Commission decisions involved an assessment of such ecosystemrelated effects, and I will briefly focus on three of these and outline why, in my view, the outcomes differed.

The most recent case involving ecosystem-related effects, and the first prohibition of 2023, is the Commission’s decision of 25 September 2023, to block the proposed acquisition by Booking, with operates the Booking.com hotel booking website, of eTraveli. With a market share of more than 60%, Booking was the dominant hotel

online travel agency (‘OTA’) in the European Economic Area (EEA) pre-transaction. With only one sizeable competitor, which focused mainly on the United States market, Booking had the ability to act independently

on the EEA market, and was seen as an indispensable partner. The acquisition of eTraveli, a flight OTA, would

have allowed Booking to develop an ecosystem of services with eTraveli’s flight capabilities, which would leverage existing brand strength and customer inertia. The transaction would have allowed Booking to attract hundreds of million additional visits and would have allowed it to reach travellers earlier in their trip planning process, making it even more difficult for competitors to challenge Booking’s dominant position in the hotel OTA market and

reinforcing Booking’s bargaining position towards hotels. This would ultimately have increased hotels’ costs, and in turn may have resulted in higher prices for end customers.

In other words, the Commission concluded that Booking would strengthen its dominant position in hotel OTA

market through the acquisition of a leading player in the neighbouring flight OTA market, resulting in a structural change in the market that would have decreased the ability of competitors to enter or expand in the hotel OTA

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market and to compete generally. While this was the first time that the Commission blocks a merger on this basis, it is not the first time that the Commission assessed ecosystem related effects in its merger decisions.

In Amazon/MGM (M.10349), Amazon, which is active in the retail supply of audio-visual (on-demand streaming)

services through Prime Video, would acquire MGM’s audio-visual content (most notably the popular James Bond franchise of films), thereby making its Prime Video offering more attractive to consumers. the Commission

investigated whether Amazon could leverage a strengthened position in the market for audio-visual content as

a result of the addition of MGM’s content into Amazon’s core market for the provision of marketplace services,

where it may have already held a dominant position (footnote 250) – note also that on 6 September 2023, Amazon was also designated as a gatekeeper under the DMA and the Amazon Marketplace was designated as

a core platform service within the meaning of the DMA. The Commission ultimately cleared this conglomerate

theory of harm on the basis that acquiring MGM’s audio-visual content and film library was “unlikely to [increase demand, barriers to entry or expansion, or otherwise] fundamentally change the competitive landscape in the market for marketplace services”.

In a similar non-horizontal merger, Google/Photomath (M.10796), the Commission investigated whether the

acquisition would have strengthened Google’s already dominant position in the provision of general search services. Photomath did not operate a general search service, but it had capabilities to solve maths questions that could improve Google Search and thus potentially impact competition between Google Search and other

general search services, for example by raising barriers to entry and expansion for Google’s rivals in that market. Ultimately, the Commission concluded that the potential harm was unlikely to materialize in particular because

the relevance of maths search queries for the market for general search services was low and thus cleared the transaction unconditionally.

These decisions are good examples of how merger reviews have become increasingly sophisticated. Fewer transactions in today’s economy are purely horizontal or vertical, particularly in the digital sector or in the case

of undertakings that operate ecosystems of products or services. Indeed, the EU General Court echoed this in its Google Android (T‑604/18) judgment when it observed that an undertaking may be active in “distinct but interconnected relevant markets” (para. 129) that form part of an overall ecosystem, while for example having market power or a dominant position in some of these markets.

In the three mergers mentioned, each involving ecosystem-related effects, a common thread is that the theories of harm all related to strengthening of an existing dominant position in a core market, which may have formed part of a broader ecosystem.

It is not necessarily the case that all ecosystem-related mergers will be assessed in the same manner. The Commission

carefully assesses which effects are plausible for a given merger, as this will depend on the individual circumstances of the case. Vertical, conglomerate and horizontal effects can in fact reinforce each other – for example, in Meta/

Kustomer (M.10262), the Commission, as part of its assessment of Meta’s incentive to engage in input foreclosure, took into considerations gains that may have resulted in adjacent or neighbouring markets, such as additional data www.eulawlive.com

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for online ads purposes and longer-term benefits from steering businesses into the Meta ecosystem of products

(paras. 309 -310). Also, many recent digital mergers reviewed by the Commission have included components of

both horizontal and non-horizontal relationships or involve adjacent or complementary markets – for example, in cases M.8124 – Microsoft/LinkedIn (2016), M.9660 – Google/Fitbit (2020), M.10262 – Meta/Kustomer (2022), and M.10646 – Microsoft/Activision Blizzard (2023). This has also been the case in non-digital mergers, such as

in Cases M.8674 – BASF/Solvay (2019) and M.8900 – Wieland/Aurubis (2019), the Commission identified both horizontal and vertical concerns.

To properly capture the anti-competitive effects of such complex mergers, the Commission relies on its Guidelines, but it may also directly apply the provisions of the EU Merger Regulation directly or even depart from the

Guidelines if this is properly justified, as indeed was recently confirmed by the Court of Justice in CK Telecoms (376/20 P).

Even if there is no dedicated section in the Commission’s Guidelines for mergers in the digital sector—unlike

for example in the that will soon enter into effect—the Commission has not been constrained from investigating

dynamic competition theories of harm or from intervening in digital and tech mergers where warranted (see, for example, Cases M.8314 – Broadcom/Brocade – 2016, M.8124 – Microsoft/LinkedIn – 2016, M.9660 – Google/

Fitbit – 2020, M.10262 – Meta/Kustomer – 2022, M.9987 – Nvidia/ARM – 2022, M.10646 – Microsoft/Activision Blizzard – 2023, M.10806 – Broadcom/VMware – 2023). Concluding remarks When it comes to mergers in the digital sector, merging parties and their advisers can expect the Commission

to focus its resources on the potentially problematic mergers that warrant careful review. Some of these may be below-threshold transactions, but it has never been the Commission’s intention to take jurisdiction over a flood

of additional cases, as indeed shown by the September 2023 simplification package aimed at further simplifying

the Commission’s procedures for the handling of non-problematic cases, and freeing up more resources for the complex cases.

It can also be expected that the Commission will continue to focus on sophisticated and dynamic theories of

harm adapted to the types of competitive harm that can occur, and indeed may have occurred, in digital markets. The Commission’s assessment may be new and may therefore not always fall neatly within its established . It will

however always follow a sound, evidence-based approach, with the same presumptions and standard of proof for all mergers, all sectors and all merging parties.

Sean Mernagh is a case handler at the European Commission, working in the unit handling mergers in the digital and technology sectors. Prior to joining the Commission, Sean worked in private practice in international law firms in Brussels and Dublin focusing on competition law. Sean also holds an LLM from the College of Europe.

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SUGGESTED CITATION: Sean Mernagh; “EU merger control in the digital sector: an expanding toolkit, an evolving practice”, by Sean Mernagh, EU Law Live, 12/11/2023, https://eulawlive.com/competition-corner/op-ed-working-title-eu-merger-control-in-the-digital-sector-an-expanding-toolkit-anevolving-practice-by-sean-mernagh/

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Special Issue on Russia’s exclusion from the Council of Europe An introduction

Edoardo Stoppioni 1

Russia’s aggression in Ukraine marks a historic turning point, as the return of war to the European territory puts

an end to the narrative of stable pacification of international relations on this continent. Given the scale of this violation of international law, the question of what consequences should be drawn from the point of view of the law of the Council of Europe was inevitable. These events caused a particular existential turmoil within an

organisation whose aim is the ‘pursuit of peace based upon justice and international co-operation is vital for the

preservation of human society and civilisation’, and which seeks to create ‘a closer unity between all like-minded countries of Europe’.

Confronted with a blatant violation of its fundamental values, enshrined in Article 3 of its statutes, the organisation reacted by expelling Russia from its premises. The Committee of Ministers’ decision of 16 March 2022 to exclude

Russia from the Council of Europe (CM/Res(2022)2) was described as inevitable.2 The decision was surely unprecedented, as no state had ever been excluded from the Council of Europe before. The complexities of the exclusion Andrew Drzemczewski and Rick Lawson have sketched an analysis of the complexities behind the process that has led to the exclusion, identifying six steps.3

The first step consists of Russia invading Ukraine on the night of 23 to 24 February 2022, event that shall be qualified as a ‘tectonic shift in European history’ by the European Council.

Second, the reaction by the Council of Europe: the President of the Parliamentary Assembly had rapidly issued

a statement to clarify that the ‘attack is in clear breach of the principles and values that the Council of Europe’; the Committee of Ministers convened an extraordinary meeting to condemn ‘in the strongest terms the armed attack’.

1. Professor of International Law, University of Strasbourg.

2. Mustapha Afroukh, ‘L’exclusion de la Russie du Conseil de l’Europe : une décision responsable’, Le Club des Juristes, 23

march 2022.

3. Andrew Drzemczewski, Rick Lawson, ‘Exclusion of the Russian Federation from the Council of Europe and the ECHR: An Overview’, 21 Baltic Yearbook of International Law, 2023 (forthcoming).

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Third step, the Committee of Ministers took a decision on the 25 February 2022 recalling that Russia was still

fully bound by the Convention. Indeed, contrary to Ukraine and Moldova, Russia had not notified a derogation under Article 15 of the Convention.

Fourth step, with the attacks continuing, the Committee of Ministers seized the Parliamentary Assembly of the

question of the necessity to resort to Article 8 of the State. An extraordinary session is held on 14-15 March,

when the decision materialises progressively on the need for Russia to leave the Council of Europe. Nevertheless, during this second day, Russia notified its intention to quit the institution, using Article 7 of the Statute.

Fifth step, Parliamentary Assembly Opinion 300 is adopted to conclude the exit. The Committee of Ministers had decided to bypass Article 7 and to maintain the exclusion decision under Article 8, to avoid the risk of a

subsequent decision to revoke the withdrawal. Doubts on the interpretation of the respect of the procedure spelled out in Article 8 were put forward.

Sixth step, Russia’s exclusion created a complex legal situation where ‘a few things are clear, but many other matters

are not; we find ourselves in mostly uncharted waters’, as Drzemczewski and Lawson put it: as of 16 March 2022, Russia is no longer a contracting party to the Statute of the Council of Europe and of all the instruments thereof.4 Exiting international organisations: from theory to practice States’ withdrawals from international organisations have recently been at the forefront of the international scene.

After Brexit and the decisions of different States to quit the ICSID system, Nicaragua’s decision to quit the OAS, Burundi’s stance towards the ICC, Russia’s episode continued this multiplication of practice.

In a recent and timely PhD thesis on the concept of withdrawal from international organisations, Habib Badjinri Touré has explored the complex theoretical dimensions at stake in this legal configuration.5 His work underlined that all these complexities stem for the dual perception that we can have of the treaty, which is the object of the

withdrawal. While such treaty is the constitution of the international organisation, creating the legal personality and organising the functional determination of the institution, it remains essentially an expression of will from the point of view of the Member States, that tend to treat it as an ordinary treaty. International law has therefore

tried to adjust special conditions over the exercise of this right of withdrawal, to bind the unilateral action states and protect the integrity of the organisation.

This very informative work analysed very recent State practice and puts into perspective Russia’s decision to ‘unsign’ the Rome Statute in 2016, with the beginning of its hegemonical run towards Ukraine (see Statement by the Russian Foreign Ministry, N° 2111-16-11-2016, 16 November 2016)6. 4. Andrew Drzemczewski, Rick Lawson, cit., p. 9.

5. Habib Badjinri Touré, Le retrait des États membres des organisations internationales, PhD in international law, Aix-

Marseille University, 2022.

6. Habib Badjinri Touré, Le retrait des États membres des organisations internationales, cit., p. 100.

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Similarly, it unpacked how, unlike in the Greek precedent, the Council of Ministers has gone to the end of the Article 8 procedure and excluded Russia, disregarding the notification of withdrawal because of the ‘real opposition between the Council and Russia, as well as Russia’s distrust of the Organisation and the latter’s clear desire to demonstrate its power in the face of a recalcitrant member’.7

The dramatic end of the ECHR’s protection over Russian jurisdiction But the main consequence of these legal intricacies, in terms of the law of the Council of Europe, is certainly the

end of the application of the ECHR over Russian jurisdiction: as Drzemczewski and Lawson put it, “the largest country on the continent is now outside the scope of application of the ECHR”8.

The ECtHR was confronted with the legal consequences of these events in the Fedotova case9. The Grand Chamber

first confirmed that under Article 58 para. 3 of the Convention, exclusion is governed by the same rules which

apply to denunciation under Article 58 paras. 1 and 2. The State therefore remains bound by the Convention for six months after the exclusion took place and ‘in respect of any act which, being capable of constituting a violation of such obligations, may have been performed by it before the date at which the denunciation became effective”. The Court logically concluded that it “remain[ed] competent to deal with applications directed against

the Russian Federation in relation to acts or omissions capable of constituting a violation of the Convention provided that they occurred until 16 September 2022’ (para. 72).

An important element of complexity concerned nevertheless the situation and role of the nationally appointed

judge is more uncertain. As we have remarked with Olivier Baillet,10 under Article 20 ECHR, the Court consists ‘of a number of judges equal to that of the High Contracting Parties’. This would imply that, as from 16 September

2022, the judge elected ‘with respect to’ Russia (Art. 22) ceased to be a judge. However, he still was when the

applications were lodged, in 2010 and 2014, when the case was referred to the Grand Chamber (12 October

2021), and even when the first deliberation took place on April 27 2022. Furthermore, the judge in respect of a

party is ‘ex officio member’ when the Chamber or Grand Chamber examines a case against that State (Art. 24 para. 4). However, in this case judge also took part to the second round of deliberations, 12 October 2022, after

Russia was no longer party to the Convention. According to judge Poláčková, such a participation breached

Article 20 and, as a result, the case was not examined by tribunal ‘established by law’ to which Article 6 para. 1. refers. Precedents appears to support this argumentation. He notes that when Greece withdrew from the Council

of Europe in 1970, Judge Maridakis was barred from the examination of a case where he had attended the oral hearings (De Wilde, Ooms and Versyp v. Belgium (18 June 1971, § 11). Furthermore, one could add that when

Czechoslovakia was dissolved in 1992, judge Repik ceased to be a judge before he was re-elected for Slovakia in 1993. The opposite solution adopted here, not reasoned in the judgment, strengthens an institution, the national 7. Habib Badjinri Touré, Le retrait des États membres des organisations internationales, cit., p. 104. 8. Andrew Drzemczewski, Rick Lawson, cit., p. 15.

9. ECtHR (Grand Chamber), Fedotova et al. c. Russia, 17 January, 2023, app. n

40792/10, 30538/14 et 43439/14.

10. Edoardo Stoppioni, Olivier Baillet, ‘Fedotova v. Russia: at the margins of LGBTI rights’, EU Law Live, 13 February 2023.

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judge, which was already controversial when the ECHR was drafted and leaves the European system isolated. The Interamerican Court deemed the idea ‘conceived in international law for the resolution of classic disputes

between States rather than human rights litigation’ and excluded its application to individual applications.11

Article 14 para. 3. of the Protocol on the Statute of the African Court also prevents judges from sitting in cases directed against their State of nationality. Structure of the issue This Special Issue attempts to address the central questions raised by these events. Firstly, Véronique Leblanc, a

journalist specialising in the Council of Europe who followed the Russian expulsion for the Belgian media, relates

how the events were experienced from within the walls of the Council of Europe. Julie Ferrero then explores the impact of exclusion before the European Court of Human Rights.

Two Long-Reads then put these issues into perspective by adopting a comparative approach. Laurence

Burgorgue-Larsen introduces a comparison with the institutional reaction of the European Union, while JeanMarc Sorel questions the way in which these events question the evolution of the UN’s institutional mechanism for maintaining peace and security.

SUGGESTED CITATION: Edoardo Stoppioni. “An introduction”, EU Law Live Weekend Edition nº 163, Special Issue on Russia’s exclusion from the Council of Europe edited by Edoardo Stoppioni, https://eulawlive.com/weekend-edition/weekend-edition-no163/

11. IACtHR, Advisory Opinion OC-20/09, paras. 36 and 45.

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‘There is no place for the aggressor in the common home’ – Russia’s exclusion seen from the press-room Véronique Leblanc 1

‘This time it’s official: by decision of the Committee of Ministers of the Council of Europe announced earlier

this afternoon, the Russian Federation is excluded from the pan-European organisation as of March 16, 2022. The Russian flag no longer flies alongside those of the 46 other member states of the Council of Europe on the

square in Strasbourg; it has been removed, as has the plaque that identified it with the date of Russia’s accession, February 28, 1996’.

On rereading these few sentences that I have written at the beginning of an article, images come to mind: that of a flag lowered discreetly in the greyness of a late March morning, and that of the tense faces of the few people

gathered around the permanent representative of the Russian Federation to the Council of Europe, the only authority present. The moment felt like a dreary death knell that we knew was as inevitable as it was fraught with consequences.

The machine had already been set in motion on 24 February 2022, the day the Russian Federation began its armed aggression against Ukraine. By denouncing ‘a flagrant violation of the Statute of the Council of Europe’, Marija Pejčinović Burić, Secretary General of the organisation, had paved the way for a suspension or even exclusion of

Russia, since this text, adopted in London in 1949, provides that in the event of a serious breach of the principle of the rule of law and the values of the Council of Europe, the Committee of Ministers may, in fine, ‘decide that the

member in question has ceased to belong to the Council of Europe as from a date to be fixed by the Committee of Ministers itself ’.

Under the Italian presidency at the time, this Committee of Representatives of the Ministers of Foreign Affairs

of the Council of Europe wasted no time and met in the afternoon of the same day to ‘discuss the next steps in reacting to the Russian attack on Ukraine’, while the Parliamentary Assembly, through the voice of its President

Tiny Kox, called for ‘a robust and consolidated response’ to this ‘clear violation of the principles and values upheld by the Council of Europe and its member states’.

In the face of the ‘unthinkable’, highlighted by Human Rights Commissioner Dunja Mijatović, the Council

of Europe’s statutory bodies displayed a unity that had been lacking in April 2014, when the Parliamentary Assembly suspended the voting rights of the Russian delegation in response to the annexation of Crimea. 1. Journalist specializing in the functioning of the Council of Europe.

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The Russian parliamentarians then slammed the door on the hemicycle, but their ambassador continued to sit on the Committee of Ministers, which created a heavy distortion within the Organization. The Council of Europe, united and determined Five years of ‘Russian crisis’ followed, and many articles were written recounting the tensions between Moscow

and Strasbourg, between the Assembly and the Committee of Ministers and, within the Assembly itself, between the national delegations, which clashed over a recurring question: as the only platform in the world where

parliamentarians from 47 member states can meet, should the Assembly and the Council of Europe as a whole forgo dialogue in favour of sanctions?

Dialogue was advocated, and the representatives of the Duma made their grand - and arrogant - return to

Strasbourg in June 2019, much to the dismay of the Ukrainian, Georgian, Baltic and British delegations, who, after February 24, 2022, continue to remind us that they had warned of the Russian danger.

Once war had been declared and the first declarations published on 24 February 2022, there was no time for procrastination, and the Council of Europe immediately set to work.

A meeting of the Joint Committee between the Committee of Ministers and the Bureau of the Parliamentary

Assembly was convened for 11 a.m. on February 25 to coordinate ‘a concerted response to this unprecedented crisis in Europe’ and, at the end of the meeting, the Committee of Ministers decided to ‘suspend the Russian

Federation from its rights of representation on the Committee of Ministers and the Parliamentary Assembly of the Council of Europe’.

All this ‘with immediate effect’, it was specified, but without affecting Russia’s membership status, which at this

stage remained a State Party to the Council of Europe Conventions, including the European Convention on Human Rights, of which the Russian judge remained a member.

The ‘suspension of the right of representation’ concerned the Russian ambassador to the Council of Europe, who was banned from sitting on the Committee of Ministers, and the 18 members of the Russian delegation, who were excluded from the work of the parliamentary assembly. ‘Channels of communication remain open’, it was

stated, but it was already clear that an exclusion was looming. At the end of the joint meeting, Tiny Kox clarified that the two bodies were ‘on the same line’ and announced an extraordinary plenary session of the Parliamentary Assembly on March 14 and 15 to ‘immediately address the situation and its consequences’. Russian twist on March 15 Tuesday March 15 was a day full of twists and turns, devoted to the Parliamentary Assembly’s debates on the possibility of initiating Russia’s exclusion procedure.

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The vote that was to follow this historic day was a foregone conclusion, with everyone counting on a large majority in favour of giving the green light to the Committee of Ministers, which was to formalise its decision on Wednesday.

At around 5.30 pm, however, the final blow came in the form of a press release from Council of Europe spokesman Daniel Holtgen, announcing ‘the formal notification of the withdrawal of the Russian Federation, as well as the information of its intention to denounce the European Convention on Human Rights’.

Moscow had therefore decided to short-circuit the now inevitable process, preferring instead to announce its own voluntary departure from an organisation whose ‘unifying potential has been destroyed by the NATO

and European Union countries, which see it as the only means of ideologically ensuring their military-political

expansion’, as stated in the Public Statement published that afternoon on the Russian Foreign Ministry website.

For the Kremlin, ‘responsibility for the destruction of the common humanitarian and legal space on the continent’ and for Russia’s departure had to be borne by those who ‘forced it to take this step’.

To put it plainly, Russia preferred to assert that it was leaving rather than being expelled, but refused to be accused of depriving its citizens of the protection of the European Convention on Human Rights and the Court. Match point, the press room thought...

But this was without counting on the determination of the Council of Europe, confirmed by a source inside the Committee of Ministers. The procedure launched on 25 February with the suspension of Russia’s representation

rights within the statutory bodies was taking its course. The representatives of the foreign ministers were

determined that the Council of Europe should take the political decision to exclude Russia from a ‘common

home where there is no place for the aggressor’, as stated in the text debated all day by the parliamentary assembly. The debate continued after 5:30 p.m., without the parliamentarians having been informed of the Russian decision. When the news reached a Polish member of parliament at around 6:30 p.m., she announced it and commented with a sober ‘so much the better, we don’t want any war criminals here’. ‘Let’s not be distracted by these Russian manoeuvres’ added a British socialist, ‘everything we can do we must do’.

The debate continued until the vote on an Opinion which confirmed the unanimous will of the assembly to see

Russia excluded from the Council of Europe. During this extraordinary session, the Ukrainian delegation was represented solely by its nine female deputies, their male colleagues having been unable to leave their country due to the ban on leaving the country imposed on men aged between 18 and 60.

Dressed, like her compatriots, in a traditional embroidered blouse, the head of the delegation, Mariia Melzentzeva, declared at the start of the debates that the Ukrainian people, holed up in the cellars, would not be following the vote that was about to take place at the assembly, but that she herself would be present, and that she wanted to see

‘the Russian flag lowered on the forecourt of the Council of Europe’ on the day when Russia’s departure was put on record. Her wishes came true the very next day.

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SUGGESTED CITATION: Véronique Leblanc. “‘There is no place for the aggressor in the common home’ – Russia’s exclusion seen from the press-room”, EU Law Live Weekend Edition nº 163, Special Issue on Russia’s exclusion from the Council of Europe edited by Edoardo Stoppioni, https://eulawlive. com/weekend-edition/weekend-edition-no163/

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ECHR’s adjustments to Russia’s exit from the Council of Europe: much ado about nothing? Julie Ferrero 1

The loss of membership status in the Council of Europe is not an unprecedented situation. Two decades after the organisation’s establishment, Greece already announced its withdrawal in 1970 along with a sanction procedure opened against it. However, Russia’s departure presents itself in a different light and brings heavier political

and institutional stakes, particularly regarding the system of the European Convention on Human Rights. The magnitude of the shock can be explained by several factors. First, the conventional system has considerably evolved since the 1970s, both in terms of litigation volumes and of symbolic significance. Additionally, relations with

Russia were already marked by numerous tensions, whether it be the suspension of the state’s rights within the

organisation as a sanction,2 or the recurring lack of cooperation with the Court in terms of procedure and

execution.3 In this context, while Russia’s exclusion is a significant gesture, it was not unexpected. Nevertheless,

the formalisation of this departure implies adjustments from the organisation, but also, and perhaps especially, from the Court, accustomed to benefiting from mandatory jurisdiction over States party to the Convention and a perfect correspondence between its competence and the scope of the 1950 text. A succession of adaptations has

been gradually made by the Committee of Ministers and the Court itself since March 2022, without however being able to preserve the effectiveness of the Court’s mission despite the efforts made in this regard.

The main issue that the Court had to address concerns its jurisdiction. Unlike the principle of optional jurisdiction that is prevalent, by default, in international litigation, the European Court of Human Rights benefits from

compulsory jurisdiction over all parties to the Convention, starting from the moment of its ratification. At most, it must sometimes settle questions of ratione materiae jurisdiction regarding an overly ambitious application, or

territorial or temporal jurisdiction when dealing with old facts or facts that are geographically distant from the

defendant’s territory. Therefore, it rarely has to question the very existence of its ratione personae jurisdiction vis-àvis a State responsible for violations. However, in principle, Russia’s loss of membership status due to the cessation

of its participation in the international organisation excludes the Court’s jurisdiction over it from the moment it takes effect, i.e., 16 September 2022, in accordance with the resolution of March 2022, which draws an analogy

with the denunciation procedure of Article 58. Nevertheless, as Russia is bound by its treaty obligations until that date, the Court remains competent for allegations of violations committed until then. Classic treaty law thus leads

to a logical but uncomfortable situation in which the Court is still dealing with numerous cases involving Russia, 1. Professor of International Law, University Jean Moulin (Lyon III).

2. Following Crimea’s annexation in 2014, Russia’s voting rights at the Parliamentary Assembly were suspended until 2029. 3. See for example, ECtHR, Carter. v. Russia, 21 September 2021, app. n°20924/07

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even though its departure from the organisation has been confirmed. The paradox borders on irony here, as even

before its withdrawal from the Council of Europe, Russia’s compliance with the Convention and the judgments

rendered against it were already limited. The situation is even more absurd because, in order to ensure respect for

treaty rights, the judicial mechanism imposes, through a judgment, new obligations on the defendant aimed at ensuring compliance with its initial obligations. Consequently, new secondary obligations, particularly in terms of reparation, may arise at a time when the State is no longer bound by the text. While they logically stem from

a primary obligation at a time when it was enforceable against the State in question, the practical implications

of this legal mechanism seem detached from reality, to say the least. This was indeed the meaning behind one of the criticisms made by Judge Wojtyczek in the Fedotova judgment,4 which highlighted the lack of practical significance of this decision.

This paradox persists even at the procedural stage in each of the cases involving Russia since its departure. It must be acknowledged in this regard that the lack of cooperation from the State with the Court has already been

subject to numerous criticisms in the past. It is not surprising that this lack of cooperation has become systematic since the successive announcements of exclusion and withdrawal in March 2022. However, the Court made it clear in the case of Svetova et al. v. Russia5 that despite losing its status as a High Contracting Party to the

Convention, Russia still has an obligation to cooperate under Articles 34 and 38 of the Convention. Despite this, the State has refrained from any communication with the organisation or the jurisdiction, leaving the Court to solely rely on the allegations of the applicants in the pending cases before it. This abstention has two types of consequences, as revealed in the judgment rendered regarding just satisfaction in the case of Georgia v. Russia (II).6 Firstly, the Court is entitled, under Article 44C of its Rules, to draw consequences from the State’s refusal to cooperate. In the past, it has frequently criticised Russia for its ‘distinct lack of frankness and transparency’,7 condemned its ‘superficial and evasive’ responses to its questions,8 and denounced the non-constructive approach taken by the government9. In the Georgian case, the Court bases its reasoning on Articles 34 and 38 of the Convention and Article 44A of its

Rules. Furthermore, according to the Court, Article 44C constitutes a ‘an enabling clause for the Court, making it impossible for a party unilaterally to delay or obstruct the conduct of proceedings’,10 It then concludes that

the refusal to submit observations or participate without ‘sufficient reason’ could potentially be seen as a ‘waiver’ of the right to participate in the proceedings. Secondly, this ‘sanction’ for the lack of participation actually has also detrimental effects on the applicant. As seen in the case of Georgia v. Russia (II), the absence of an adversarial debate can cause the defendant to limit its argumentation due to the lack of os

4. ECtHR (Grand Chamber), Fedotova et al. c. Russia, 17 January, 2023, app. n

40792/10, 30538/14 et 43439/14.

5. ECtHR, Svetova et al. c. Russia, 24 January 2023, app. n° 54714/17

6. ECtHR (Grand Chamber), Georgia v. Russia (II), 28 April 2023 (Just satisfaction), app. n°38263/08.

7. ECtHR (Grand Chamber), Ukraine and The Netherlands v. Russia, app. nos 8019/16, 43800/14, et 28525/20, § 456. 8. Id., §457. 9. Id., §459.

10. ECtHR (Grand Chamber), Georgia v. Russia (II), 28 April 2023 (Just satisfaction), app. n°38263/08, §26.

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challenge, only for the Court to ultimately disregard it due to its lack of development. Consequently, the Court has rejected some of Georgia’s claims, even though the weakness identified in the presentation could be seen as one of the consequences of Russia’s obstruction.11 The departure of Russia has also involved adjustments to the composition of the Court. In its resolution of 5

September 2022, the jurisdiction takes note of the cessation of the Russian judge’s function as of 16 September. Consequently, it informed the parties, particularly in the cases Kutayev v. Russia12 and Svetova and al. v. Russia,13

that it intended to designate one of its serving judges as an ad hoc judge for the purpose of examining their applications and that it intended to apply the same approach in the future. As anticipated, the government did not respond to this communication. The Grand Chamber confirmed this approach in its decision of 25 January 2023 in the case of Ukraine and the Netherlands v. Russia.14 However, the composition of certain bench formations prior to the determination of this solution may have been problematic. In the case of Fedotova, for example, Judge Poláčková challenged the composition of the Grand Chamber and based her dissenting opinion on this procedural issue. In her view, and in accordance with the Greek precedent, the Russian judge should have been disqualified from the case since Russia had ceased to be a Party to the Convention at the date of the deliberations. Indeed, while he had attended the hearings in the case De Wilde Ooms and Versyp v. Belgium, the Greek judge at the time did not participate in its examination, which took place after the Greek withdrawal took effect on 31 December 1970. In this sense, the bench formation that rendered the judgment in Fedotova does not, according to her, constitute a tribunal established by law.15

Furthermore, the consequences of Russia’s departure, despite the aforementioned re-arrangements, inevitably unfold during the stage of executing judgments. Russia, consistent with its stance since its deemed ‘procedurally

incorrect’ exclusion, remains unresponsive to all appeals from both the Court and the Committee of Ministers. Moreover, efforts in this regard appear futile in light of the law enacted as early as 7 June 2022, which authorises

the State to cease enforcing Court decisions after 15 March 2022. It further stipulates that any awarded just satisfaction may be paid until 1 January 2023 for judgments finalised before this date, but such payment will

exclusively be issued in rubles and to Russian bank accounts only. Thus, even the sophisticated monitoring

mechanism established under the auspices of the Committee of Ministers of the Council of Europe is insufficient to counter the complete lack of communication from a former party. The primary leverage for enforcement lies

in the threat of non-compliance proceedings and potential sanctions within the organisation, including the

suspension of representation rights. However, none of these incentives wield any influence over the Russian State, which is already barred from participating in the organisation in accordance with Resolution CM/Res(2022)1 on

11. See Joint partly dissenting opinion of judges Bošnjak, Pastor Vilanova, Wojtyczek, Serghides, Chanturia, Jelić, Sabato

and Schembri Orland. 12.

ECtHR, Kuyatev v. Russia, 24 January 2023, app. no. 17912/15.

13. Op.cit.

14. Op. cit, §§39 and 40. 15. Op. cit, §13.

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the legal and financial consequences of the suspension of the Russian Federation from its representation rights in the Council of Europe.16 While the option of filing an infringement application before the Court due to

the non-execution of a judgment finding violations committed before 16 September 2022 remains theoretically

possible, its chances of success are virtually nonexistent. Consequently, at this stage, the conventional mechanism

is deadlocked, caught between the imperative of effectively safeguarding conventional rights and the inherent limitations of international jurisdiction. While it is commendable that the Council of Europe institutions strive not to abruptly abandon Russian litigants, it must be acknowledged that the gradually implemented adjustments

to mitigate the shockwave generated by the exclusion of the Russian Federation appear ineffective. Ultimately, these efforts primarily pertain to internal matters within the organisation. Symbolically, the upheld obligations by the departing State until its departure and the continuation of resulting secondary obligations contribute to

the credibility of the mechanism in the eyes of its members. Furthermore, they likely serve as a deterrent to other states that may be tempted to suspend or circumvent their conventional obligations. Nonetheless, the effectiveness

of rights protected by the Convention is by no means assured by these superficial arrangements, which offer little hope of justice for applicants in cases treated until September 2022, as well as the more than 16,000 pending applications as of 1 February 2023.

SUGGESTED CITATION: Julie Ferrero. “ECHR’s adjustments to Russia’s exit from the Council of Europe: much ado about nothing?”, EU Law Live Weekend Edition nº 163, Special Issue on Russia’s exclusion from the Council of Europe edited by Edoardo Stoppioni, https://eulawlive.com/weekendedition/weekend-edition-no163/

16. Adopted by the Committee of Ministers on 2 March 2022, during the 1427th meeting of the Ministers’ Deputies

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The reaction of international organizations to Russia’s aggression against Ukraine: between UN impotence and European renaissance Laurence Burgorgue-Larsen 1 Ironically, or as yet another cynical tactic, the Russian invasion of Ukraine on 24 February 2022 took place at a time when Russia held the presidency of the Security Council. Is the violation of international law a fact, and if so, what leeway do international organisations have in the face of Vladimir Putin’s Russian actions? Is Russia’s invasion of Ukraine in violation of international law? Major international organisations, both universal (such as the UN) and regional (such as the Council of Europe, the European Union and the Organization of American States), have condemned the invasion of Ukraine under

the rules of international law. UN Secretary General António Guterres, Council of Europe Secretary General

Marija Pejčinović Burić, European Commission President Ursula von der Leyen, European Council President Charles Michel, Organization of American States Secretary General Luis Almagro and the Permanent Council

of the latter organisation have all expressed their unanimous condemnation: the attack on Ukraine’s sovereignty was carried out in violation of the principles governing international law.

The United Nations Charter - the landmark text of the post-45 era - unambiguously prohibits the use of force

between states (Article 2 § 4 of the UN Charter). While public international law recognises three types of

exception to this principle (the call for assistance; intervention authorised under Chapter VII of the UN Charter; and, last but not least, self-defence on the basis of Article 51 of the Charter), none of them applies in this case.

What room for manoeuvre do the international organisations of which Russia is a member (UN and Council of

Europe) have? The UN is the international organisation which, to date, has blatantly demonstrated its powerlessness, which stems directly from the Security Council’s operating rules, as laid down at the end of the Second World

War and never reformed to this day. Indeed, a draft resolution submitted to the Security Council on 25 February

2022 by the United States and Albania reaffirmed Ukraine’s commitment to sovereignty, independence, unity and

territorial integrity. Although the draft text received 11 votes in favour, followed by 3 abstentions (China, India, United Arab Emirates), it was blocked by the Russian veto. And with good reason: with 15 members, including

5 permanent members with veto power, the UN decision-making body was paralysed by the veto of the aggressor

state. The explanation given by Russia’s Permanent Representative to the Security Council, Vassily Nebenzia, to explain his vote, reveals a tragic cynicism:

1. Professor of Public Law, Sorbonne Law School.

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ISSUE Nº3 13-17 NOVEMBER 2023

‘Russia voted against the anti-Russian, anti-Ukrainian draft resolution that was presented to the Security Council today. I don’t think I need to explain why it is anti-Russian - just look at it briefly. But why anti-Ukrainian? Because this

document, without a doubt, contradicts the fundamental interests of the Ukrainian people, as it seeks to protect and secure in Ukraine the system of power that has brought the country to this tragedy that has already lasted for at least 8 years. We would like to thank those who have chosen not to support this project’

Even if the UN Secretary General’s speech is one of appeasement, insisting on the need for Russia to ‘lay down its

arms’, while trying to deal with the most urgent humanitarian issues, the fact is that the UN’s impotence is glaring. And yet, on 26 February 2022, Ukraine referred the matter to the UN’s principal judicial body, the International Court of Justice.

The Council of Europe (47 member states) has somewhat more room for manoeuvre. This major pan-European

organisation, created in 1949 to enshrine and defend the values of liberal democracy, was joined by Russia in 1996. The Organisation’s DNA, mentioned in Article 3 of its Statute, consists in recognising ‘the principle of the rule of

law’; any member state which ‘seriously infringes’ this provision ‘may be suspended from its right of representation’ and may be ‘invited by the Committee of Ministers to withdraw’ from the Council of Europe (Article 8). In a decision adopted on 25 February 2022, the Committee of Ministers of the Council of Europe decided to

‘suspend’ Russia from its rights of representation, both within the Committee and within the Parliamentary Assembly. While the warning is clear, it is nonetheless well-considered and measured, as Russia remained at first a member of the organisation and a party to all the conventions adopted under its aegis, notably the Convention

for the Protection of Human Rights and Fundamental Freedoms (ECHR). As a result, the Russian judge (Mikael Lobov) can continue to sit on the European Court, while applications against Russia continue to be examined.

At that stage, the question was whether the Council of Europe - in view of the acceleration and intensification

of Russian exactions on Ukrainian territory - would decide to move up a gear by ‘inviting’ Russia to withdraw

(Article 8), or whether it will prefer to maintain the opening of ‘channels of communication’? Would Realpolitik prevail (bearing in mind that Russia is one of the biggest contributors to the Council of Europe’s budget), over respect for the law as embodied in Articles 3 and 8 of the Statute? The solution to this question has since then offered a further element of reflection in the context of this intense political debate. Does the European Union have more room for manoeuvre? The brutality of Russia’s aggression in Ukraine has led to a crescendo of reactions from the European Union. In

the space of four days (24-27 February 2022), it succeeded in doing what it had failed to do in 30 years in the field of security and defence. As soon as Russia announced its recognition of the two Russian separatist regions of

Donetsk and Luhansk, the Union reacted on 23 February 2022 by adopting a series of highly targeted sanctions. The invasion of Ukraine the following day also prompted an immediate reaction. While the European Council’s

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conclusions of 24 February 2022 condemned the Russian invasion - considering in particular that ‘the use of force and coercion to alter borders has no place in the twenty-first century’ - retaliatory action quickly followed the symbolic rhetoric of condemnation. Indeed, a first set of targeted sanctions was adopted the following day, on

February 25, 2022. Firstly, financial sanctions, targeting 70% of the Russian banking market, as well as the main

state-owned companies, particularly in the defence sector. They also targeted the energy sector, a key economic area of particular benefit to the Russian state. A ban on European exports was also decreed, with the aim of hitting

the oil sector by making it impossible for Russia to modernize its refineries. In addition to these measures, a ban on the sale of aircraft and equipment to Russian airlines, the limitation of Russia’s access to crucial technologies (such as semi-conductors or cutting-edge software), and the restriction of access to the European Union for Russian diplomats and related groups and businessmen were also decreed.

Nevertheless, these sanctions were far from sufficient for many of the parties concerned, first and foremost for

President V. Zelensky. Saturday, 26 February 2022 marked a first significant turning point in Russia’s strategy of strangulation and financial isolation. Long awaited by Ukraine (especially since 2014 when Russia annexed

Crimea to near general indifference), the European Commission, as well as France, Germany, Italy, the United

Kingdom, Canada and the United States adopted a ‘joint declaration’ with very solemn opening sentences: the

strategy of radical financial strangulation was finally in effect as it was decided to remove ‘certain Russian banks’ from the SWIFT messaging system. The individual statement by the President of the Commission adopted on

the same day would make it clear that she ‘proposes to European leaders’ to follow up on the commitment she has adopted with Canadian and American partners as well as with Germany, France and Italy.

Every day added, however, its share of ever more astonishing and imposing actions. The determination of the

President of the European Commission, Ursula von der Leyen appeared growing on Sunday February 27, 2022, when the President announced a series of extraordinary measures: in addition to deciding to sanction the

Belarusian regime of Lukashenko (ally of Russia); to put an end to the toxic disinformation of Russian radios

and televisions in Europe (Russia Today, Sputnik and other media of the same type); to prohibit the overflight

of European airspace to any Russian company; the European Union, for the first time in its history, pledged to finance the purchase and delivery of arms to Ukraine.

This European commitment took a singular turn with the unconditional alignment of Germany. In a historic speech before the Bundestag, Olaf Scholz followed in the footsteps of the European Commission by deciding to release 100 billion euros to modernise its defence and to send weapons to Ukraine.

The initial reactions of the mentioned international organisation were therefore an interesting object of analysis. 4 days after the start of an attack which stunned the world, if the decision-making body of the UN is paralysed and

if the Committee of Ministers of the Council of Europe has taken a measure that is after all essentially symbolic, it is the European Union which, against all odds, succeeded in reacting to the seriousness of the situation. It is a sort of (unexpected) return to the sources: that of Unity to preserve Peace.

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ISSUE Nº3 13-17 NOVEMBER 2023

SUGGESTED CITATION: Laurence Burgorgue-Larsen. “The reaction of international organizations to Russia’s aggression against Ukraine: between UN impotence and European renaissance”, EU Law Live Weekend Edition nº 163, Special Issue on Russia’s exclusion from the Council of Europe edited by Edoardo Stoppioni, https://eulawlive.com/weekend-edition/weekend-edition-no163/

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ISSUE Nº3 13-17 NOVEMBER 2023

The war n Ukraine: a definitive discredit for the UN? Jean-Marc Sorel 1

International law is back in the spotlight, and for the worse. Everyone can denounce the violations of this law in Russia’s war in Ukraine and point to its lack of effectiveness. However, we need to refine and clarify that it is UN

law in its security aspect that is being flouted, and not international law as a whole, even if it is undeniable that

the UN Charter does contain its foundations, starting with the prohibition on the use of force in international relations, which features in the Pantheon of jus cogens norms in Article 2 of the UN Charter.

The aim here is not to add another stone to the many proclamations issued in the wake of this aggression, but to outline some of the legal aspects highlighted by this war, through three well-known recurring issues concerning the UN: the unlawful use of force, the right to self-determination, and global governance in matters of peace and security.

Why are the effects of the United Nations General Assembly resolution against Russia so limited? The massive reactions of international organisations with a universal or regional vocation (European Union, Council of Europe) were swift and almost unanimous. To this we can add a referral by Ukraine to the International Court of Justice - with a request for the indication of provisional measures - to denounce both a potential

genocide in progress but also the fanciful accusation of genocide made by Russia against Ukraine; as well as the

opening of an investigation by the International Criminal Court, to whose statute Ukraine is not a party but with which it is cooperating.

Everything seems in place for a unanimous denunciation of what is undoubtedly one of the most flagrant violations of the UN Charter since 1945. The problem lies in the UN’s inability to go any further. Armed with its veto, Russia logically blocked a Security Council resolution on 25 February. The same Council prompted

the General Assembly to adopt a resolution denouncing the situation in Ukraine. This was done in resounding fashion on 2 March, with 141 countries voting in favour of the resolution calling on Russia to cease using force

in Ukraine (Russia, Belarus, North Korea, Eritrea and Syria voting against, and 35 countries abstaining, including many African countries benefiting from Russia’s manna). A victory, then (especially compared to the less clear-cut

vote in 2014 at the time of the annexation of Crimea) for this non-binding but politically important resolution to isolate Russia. This resurrected the spectre of the famous 1950 resolution that had temporarily allowed the

General Assembly to take up the Korean war, while the USSR was practicing the empty chair policy on the

Security Council. With one important difference: in 1950, the Security Council had already authorized the use of 1. Professor of International Law, Sorbonne Law School.

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ISSUE Nº3 13-17 NOVEMBER 2023

force in the absence of the Soviet Union. Nothing like that today. The General Assembly can congratulate itself, but it can hardly go any further.

Are the alleged secessions in Ukraine purely a matter of internal Ukrainian law, or do they justify a UN response?

The discreet ‘self-determination of peoples’ in the UN Charter became the weapon of decolonisation, but by limiting this right to the borders inherited from predecessors. This avoided opening the Pandora’s box of border

reshuffling following decolonisation, but also blocked any desire for secession by leaving this question to the discretion of the domestic law of the state concerned. International law was left out of the equation and could

only deal with the situation if the secession was successful, since this would raise questions of recognition of the new entity by other states, and of succession to the state from which the new entity had broken away. Vigorously

opposed within the UN in the name of state integrity, secession remains the symbol of a right to self-determination that is very difficult to control. Where to stop it?

As it had done in 2008 for South Ossetia and Abkhasia, self-proclaimed independent republics following their

secession from Georgia in 1992, Russia recognized the independence of the separatist republics of Donbass (Donetsk and Lugansk) in 2022, before invading Ukraine. Between these two events came the secessionannexation of Crimea in 2014. This is undoubtedly where the UN’s past weaknesses lie in its necessary reactions

to Russia. These were muted in the inter-state circle, starting with the European Union. Although economic sanctions were imposed, they were never more than symbolic. Yet the worm was in the fruit. Relying on the will of the Russian-speaking majority in Crimea, Russia ‘helped’ to organise an election limited to Crimea, the result of which could only be positive.

Are we still in domestic law? At the very least, an international framework - if not a law - has gradually emerged: secession must be provided for in the constitution (which is rare), it must take place peacefully, and it must be

approved by the entire population of a state, and not just by the region wishing to become independent or to be

attached to a neighbouring state. These conditions were not met in Crimea, and no one was overly concerned, sometimes approving the referendum on the pretext that the Crimean population was in favour of it (which is true), or that the province had only recently been attached to Ukraine (1954). But time is no object. The break-up

of the USSR led to the emergence of 15 independent states within the borders inherited from previous divisions. It was up to the UN to firmly remind Russia of this in the name of Ukraine’s integrity, well before 2022. The watertight seal between domestic and international law had become illusory. Since the secession process is not

the result of purely internal events, but was initiated and supported by a foreign state without any consultation with the state concerned - in this case, Ukraine - and with the aim of annexation, it is illusory and hypocritical to consider that it is a purely internal matter. It would be all the more illusory if Russia were to carry out its threat

to annex Ukraine outright, a member state of the United Nations since 1945. Indeed, the irony of history is that Ukraine has been a member of the UN since 1945, Stalin having obtained three seats for the Soviet Union (those of the USSR, Ukraine and Belarus).

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Is the crisis in Ukraine definitively discrediting the UN? The United Nations Charter is an old lady, but one that has miraculously retained the silhouette of its youth, if

not its birth. The system of governance in matters of peace and security has remained in the hands of the five

permanent members of the Security Council. You can live happily and healthily, or one day be overtaken by age. In this case, the war in Ukraine is undoubtedly putting an end to the pattern established after the Second World War, even if the effects of age have long been overlooked.

When teaching international law, it is always possible to defend the United Nations Charter and its particular structure by arguing that the prohibition on the use of force between states has a positive record (and that infraor trans-state conflicts are easily pointed out as being in the majority today), or that failing to find the key to

reforming the Charter without the endorsement of the five permanent members of the Security Council, the balance created has remained precarious but acceptable. In reality, this balance has always been precarious, but

the Cold War helped to conceal it, and the short-lived euphoria of the post-Cold War era did nothing to upset it.

Breaches soon appeared again, as, among other examples, the Kosovo question was the subject of a questionable, a posteriori validation of the NATO bombings in 1999 - which is undoubtedly the starting point for Russia’s

subsequent attitude - the United States and the United Kingdom intervened in Iraq without Security Council

approval in 2003, and Russia is now transforming these breaches into a yawning chasm. A nagging question, then: why should Russia respect principles transgressed by others before it, including permanent members of the Security Council?

The pretexts may be largely imaginary, but those invoked by the United States to intervene in Iraq in 2003 were no less so. This in no way excuses Russia, but it does bring the UN face to face with its own turpitudes, or rather with its own self-locking system, intended as such in 1945.

The end of an era? No doubt not immediately, since every student, no matter how old, has heard of Security Council reform, its many drafts and versions - in short, a sea serpent that we pass over in silence, discouraged from recalling its antics.

SUGGESTED CITATION: Jean-Marc Sorel. “The war n Ukraine: a definitive discredit for the UN?”, EU Law Live Weekend Edition nº 163, Special Issue on Russia’s exclusion from the Council of Europe edited by Edoardo Stoppioni, https://eulawlive.com/weekend-edition/weekend-edition-no163/

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HIGHLIGHTS OF THE WEEK

The Week

ISSUE Nº3 13-17 NOVEMBER 2023

Action brought against ACER decision confirming TSO’s common coordinated capacity calculation methodologies Monday 13 November

Official publication was made of an action, brought on 28 September 2023, by the Bundesnetzagentur für Elektrizität, Gas, Telekommunikation, Post und Eisenbahnen (BNetzA) against the EU Agency for the Cooperation of Energy Regulators (ACER): NetzA v ACER (T-600/23). Read on EU Law Live

Notices of initiation of anti-dumping proceedings on imports of titanium dioxide and mobile access equipment from China, published in OJ Monday 13 November

Official publication was made of two Notices of initiation of anti-dumping proceedings concerning imports of: (i) mobile access equipment (‘MAE’), originating in China (C/2023/783); and titanium dioxide (TiO2) from China (C/2023/786). Read on EU Law Live

Action brought against Commission decision alleging breach of Article 108(2) TFEU on State aid, published in OJ Monday 13 November

Official publication was made of an action concerning the annulment of the Commission’s decision addressed to the applicant, within the context of State aid proceedings: Communauté d’Agglomération du Boulonnais v Commission (T-582/23). Read on EU Law Live

Preliminary ruling request concerning whether the legal definition of a ‘body governed by public law’ apply to small public contracts Monday 13 November

Official publication was made of a request for a preliminary ruling from the Sofiyski rayonen sad (Bulgaria) lodged on 30

August 2023 concerning the interpretation of Article 2(1)(4) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC: Agentsia za darzhavna finansova inspektsia (C-550/23). Read on EU Law Live

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Preliminary ruling request seeking clarification of Bulgarian administrative and criminal rules, in the context of alleged trademark violation Monday 13 November

Official publication was made of a request for a preliminary ruling from the Rayonen sad Lukovit (Bulgaria), lodged on 6 September 2023, regarding criminal proceedings against IC: Dramanova (C-558/23). Read on EU Law Live

Court of Justice to clarify the extent to which advertising of prescription medicinal products from the entire range of products of a pharmacy falls within the scope of Directive 2001/83/EC Monday 13 November

Official publication was made of a request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 10 August 2023 concerning the interpretation of Directive 2001/83/EC with respect to the extent to which advertising of

prescription medicinal products from the entire range of products of a pharmacy falls within the scope of the directive: Apothekerkammer Nordrhein (C-517/23). Read on EU Law Live

Council approves extension of funding for firefighting aircraft Monday 13 November

The Council approved the extension of a transitional measure, allowing EU member states to continue receiving EU financing for leasing firefighting planes and helicopters until the end of 2027. Read on EU Law Live

Preliminary ruling on the interpretation of rules concerning the Community postal services, published in OJ Monday 13 November

Official publication was made of a preliminary ruling request from the Varhoven administrativen sad (Bulgaria), lodged on 25

July 2023, concerning the interpretation of Article 22(3) of Directive 97/67 as amended by Directive 2008/6 regarding the

full accomplishment of the internal market of Community postal services, and of Article 47 of the Charter of Fundamental Rights: Star Post (C-476/23). Read on EU Law Live

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ISSUE Nº3 13-17 NOVEMBER 2023

Council agrees on new rules concerning digitalization of the Schengen visa application procedure Monday 13 November

The Council adopted a new set of rules establishing, among other things, an EU Schengen visa application platform, where applicants will be able to enter all the relevant data, upload electronic copies of their travel documents and supporting documents, and pay their visa fees. Read on EU Law Live

Council Decision (EU) 2023/2528 of 9 October 2023 on guidelines for the employment policies of the Member States, published in OJ Tuesday 14 November

Official publication was made of Council Decision (EU) 2023/2528 of 9 October 2023 on guidelines for the employment

policies of the Member States, which underscores the commitment to fostering a skilled, adaptable workforce and futureoriented labor markets.

Read on EU Law Live

Council and Parliament strike deal on the new Interoperable Europe Act Tuesday 14 November

The Council and the European Parliament reached a provisional agreement on the proposed legislation regarding measures on a high level of public sector interoperability across the EU (Interoperable Europe Act). Read on EU Law Live

AG Pitruzzella delivers Opinion concerning the prohibition on the transmission of orders pertaining to investment instruments to foreign securities traders Tuesday 14 November

AG Pitruzzella delivered his Opinion in Fondee (C-695/22) concerning an application whereby the applicant is seeking the

annulment of the defendant’s decision confirming a fine of CZK 150,000 imposed on the applicant, as an investment broker, for a breach of the prohibition on the transmission of orders pertaining to investment instruments to foreign securities traders.

Read on EU Law Live

AG Pitruzzella: Third party may assert invalidity of contract concluded between a trader and a consumer if its interest coincides with that of the consumer’s Tuesday 14 November

Advocate General Pitruzzella delivered his Opinion in Conny (C-400/22), a case concerning a preliminary ruling request concerning consumer protection, in the context of a distant contract concluded by electronic means. Read on EU Law Live

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Advocate General Pitruzzella’s Opinion on Mobility Package: A Critical Analysis of EU Transport Regulations Tuesday 14 November

Advocate General Pitruzzella delivered his Opinion regarding fifteen legal challenges brought by seven EU member states against legislative acts constituting the “Mobility Package”. The contested acts include regulations on driving times, conditions for road transport professions, and rules for detached drivers. Read on EU Law Live

Council and Parliament reach deal on methane emissions reduction in energy sector Wednesday 15 November

The Council and the Parliament reached a provisional agreement on a regulation aimed at tracking and reducing methane emissions in the energy sector, constituting a crucial component of the ‘Fit for 55’ package. Read on EU Law Live

Commission Notice of initiation of anti-dumping proceedings concerning imports of certain products originating in Egypt and the US Wednesday 15 November

Official publication was made of a European Commission Notice of initiation of an anti-dumping proceeding concerning imports of certain polyvinyl chloride originating in Egypt and the US. Read on EU Law Live

General Court annuls Commission State Aid Decision concerning prolongation of gambling licenses in the Netherlands Wednesday 15 November

The Ninth Chamber of the General Court delivered its judgment today in European Gaming and Betting Association v

Commission (T-167/21), a case concerning an action against the Commission’s State aid Decision of 18 December 2020 in case SA.44830 (2016/FC) – Netherlands: Prolongation of gambling licenses in the Netherlands. Read on EU Law Live

General Court dismisses PNB Banka’s challenge against SRB Decision Wednesday 15 November

The General Court delivered a judgment on the case brought by PNB Banka AS and other applicants challenging Decision

SRB/EES/2019/131 of the Single Resolution Board (SRB), which involved the SRB’s choice not to adopt a resolution scheme for the credit institution PNB Banka AS. The applicants sought the annulment of this decision based on Article 263 TFEU: PNB Banka and Others v CRU (T-732/19). Read on EU Law Live

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ISSUE Nº3 13-17 NOVEMBER 2023

Challenge to EU sanctions brought by Russian businessperson, rejected by General Court Wednesday 15 November

The General Court delivered its judgment in OT v Council (T-193/22), concerning a Russian businessman, challenging the annulment of EU decisions imposing restrictive measures due to actions affecting Ukraine’s territorial integrity and independence.

Read on EU Law Live

EU and its Member States together with African, Caribbean, and Pacific States, seal 20-year partnership with Samoa Agreement Wednesday 15 November

The EU and its Member States officially signed the Samoa Agreement, marking a new 20-year Partnership Agreement with the African, Caribbean, and Pacific States (OACPS) and establishing a legal framework governing their relations. Read on EU Law Live

Commission proposes new measures to attract skilled and talented jobseekers from outside the Union Wednesday 15 November

The European Commission proposed a series of initiatives in a Skills and Talent Mobility package to make the Union more attractive to talent from outside the EU and facilitate mobility within. Read on EU Law Live

Commission formally requests Amazon to provide more information on its compliance with DSA obligations Wednesday 15 November

The European Commission sent Amazon, following its designation as a ‘Very Large Online Platform’, a formal request for information under the Digital Services Act (DSA). Read on EU Law Live

Council and Parliament agree on transparency measures for short-term accommodation rentals Thursday 16 November

The Council and the European Parliament reached a provisional agreement on a draft regulation that focuses on data collection and sharing for services in this sector, responding to the growing significance of online platforms in facilitating short-term rentals of rooms and residences. Read on EU Law Live

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EDPB issues new Guidelines clarifying the technical scope of application of Article 5(3) of the e-Privacy Directive Thursday 16 November

The European Data Protection Board adopted Guidelines on the technical scope of Article 5(3) of the ePrivacy Directive, aiming to provide more legal certainty to data controllers and individuals by clarifying which technical operations, in particular new and emerging tracking techniques, are covered by that Directive. Read on EU Law Live

Notice of initiation of anti-dumping proceedings on imports of optical fibre cables from India, published in OJ Thursday 16 November

Official publication was made of a Notice of initiation of an anti-dumping proceedings concerning imports of optical fibre cables originating in India, following Europacable’s complaint to the European Commission. Read on EU Law Live

Court of Justice clarifies right to judicial remedy against decisions on data protection of supervisory authorities of police information Thursday 16 November

The Court of Justice delivered its judgment in the case Ligue des droits humains (C-333/22), concerning the right to judicial review of data subjects against decisions of independent supervisory authorities. Read on EU Law Live

A change in the holder of a Spanish notary practice falls within the scope of the Transfers of undertakings directive, holds Court of Justice Thursday 16 November

The Court of Justice handed down its judgment in NC Transfer of a Spanish notary’s office ( Joined Cases C-583/21 to C-586/21), a case concerning the status of the transfer of a Spanish notary’s office under Directive 2001/23/EC on the safeguarding of employee’s rights in the event of transfers of undertakings. Read on EU Law Live

Court of Justice rules on the withdrawal of A1 certificate and coordination of social security systems Thursday 16 November

The Court of Justice delivered its judgment in Zakład Ubezpieczeń Społecznych Oddział w Toruniu (C-422/22) concerning the interpretation of regulations on the coordination of social security systems and the arrangements with the competent institution of another Member State in the event of withdrawal of an A1 certificate. Read on EU Law Live

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Court of Justice: Contract concerning the letting of immovable property and provision of additional (cleaning) services falls outside the scope of Article 24 Brussels I Regulation Thursday 16 November

The Fourth Chamber of the Court of Justice delivered its judgment in Roompot Service (C-497/22), a case concerning a preliminary ruling request concerning the interpretation of Article 24(1)(1) of Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Read on EU Law Live

Court of Justice dismisses appeal in Roos and Others v. Parliament, ratifies legality of European Parliament’s use of Covid-19 certificate Thursday 16 November

The Court of Justice delivered its judgment in Roos and Others v. Parliament (C-458/22 PP), an appeal which follows the General Court’s earlier judgment in Roos and Others v. Parliament. Read on EU Law Live

AG Collins delivers Opinion on Article 25(1) of the Brussels Ia Regulation Thursday 16 November

Advocate General Collins delivered his Opinion in Maersk A/S (C-345/22 to C-347/22), a case concerning the interpretation

of Article 25(1) of the Brussels Ia Regulation, in the context of proceedings between Marsk, a Danish maritime transport operator, and Allianz and Mapfre, two Spanish insurance companies, as well as MACS, a German transport company. Read on EU Law Live

Gabel Industria Tessile: AG Emiliou considers scope of horizontal direct effect of directives Thursday 16 November

Advocate General Emiliou delivered his Opinion in Gabel Industria Tessile SpA (C-316/22), a preliminary reference from the District Court in Como (Italy) concerning the direct effect of directives. Read on EU Law Live