The Week Nº6 by eulawlive

ISSUE Nº6

Y EAR 2 0 2 3

4-8 December 2023

IN-DEPTH: Round Two in the EU’s Rule of Law Crisis – Is the EU’s Toolbox Fit for Purpose? Daniel Sarmiento and Sara Iglesias Sánchez “The train shall stop in Luxembourg”: AG Ćapeta stands for fundamental rights jurisdiction in CFSP action (Joined cases KS and KD C-29/22 P and C-44/22 P) Francesca Bandini and Walter Bruno Turning the Tables: Will the Commission’s Position Revive in the Apple Case? – AG Pitruzzella Opinion Svitlana Buriak The Court of Justice and headscarves at work: discretion in EU anti-discrimination law: a dangerous precedent (Case C-148/22 OP v Commune d’Ans) Erica Howard Collective rights management bodies do not automatically have legal standing under the Enforcement Directive 2004/48/EC says the Court of Justice (Case C-201/22 Telia) Sabine Jacques A critique of AG Emiliou’s Opinion in Commission v UK (C-516/22) regarding Article 351 TFEU Paschalis Paschalidis Standards for Granting Refugee Status to Family Members – Case C-374/22 Giulia Raimondo The Court of Justice of the European Union upholds the fine imposed on Altice for gun jumping Camila Sánchez A winegrower can use the term ‘wine-growing estate’ for wine produced from grapes pressed at the facilities of another winegrower Erriketi Tla da Silva THE LONG READ: A truly responsible lending: patching or rearranging consumer credit law? Comments on the new Directive on consumer credits (CCD II) Dominik Dworniczak HIGHLIGHTS OF THE WEEK

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IN-DEPTH

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Round Two in the EU’s Rule of Law Crisis – Is the EU’s Toolbox Fit for Purpose? Daniel Sarmiento and Sara Iglesias Sánchez In the past decade, the EU has developed a toolbox to protect the rule of law in the Member States.The circumstances and turn of events did not leave much of a choice. Once Hungary entered the authoritarian path, the prospect of seeing Poland going down the same track became a source of profound concern in Brussels and many Member

States. After years of appeasement of Viktor Orban, the time arrived to create and put into action an effective rule of law toolbox for the EU and its Member States, superseding the limitations of the procedure in Article 7 TEU. The story is now well-known: a full body of case-law on judicial independence emerged, the infringement

procedure was reinvigorated to tackle aggressive refusals to comply with Union rules, the Commission launched

its annual Rule of Law reports, the principle of non-regression was introduced and the conditionality Regulation turned into a legal reality, together with a ruling of the Court of Justice declaring the values in Article 2 TEU as the ‘very identity’ of the Union, thus fleshing out the basic features of the Union’s constitutional core.

The pillars of a rule of law toolbox have now been laid down and the Union can proudly claim to have a robust system that tackles any bursts of rule of law backsliding in the Member States. In fact, the Polish case could be the first success story of this new toolbox. By avoiding the mistakes that contributed to the Hungarian regression, the

EU and its Member States reacted with a mightier will when the time came to tackle the Polish case soon after the rise of the PiS (Law and Justice party) to power in 2015. Hardly any other Member State has reacted and

attacked the EU as fiercely as Poland’s government did, rejecting the Court of Justice’s rulings, instrumentalising domestic courts, using their veto powers in the Council to their very limits, to the point of transforming an

exemplary new member of the European club into a rogue nation with no fear to sabotage the EU’s policies. The

pressure exerted by the EU eventually worked. After eight years of eurosceptic rants and an authoritarian agenda, the PiS project fell apart in the hands of Polish voters. The EU’s rule of law toolbox must have had something to do with this outcome.

With the rise and fall of the Polish authoritarian experiment, the time has come to reflect on the EU’s rule of law toolbox, and the consequences of its creation. Whilst the toolbox quickly developed as a means to address the

Polish question (and indirectly the Hungarian question too, but with less signs of hope), it was never intended to be a customised framework for one case only. The toolbox applies to all the Member States, as the Commission’s Rule of Law annual reports show, in which every member of the club is thoroughly reviewed and reprimanded.

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In this Insight, we will highlight some examples that confirm that the toolbox has entered a new stage, more

sophisticated, maybe more difficult, in which many of the toolbox’s utensils have little use or effectiveness. Once

the high drama of the Polish crisis has been left behind, we are stepping into a different kind of crisis, with new

and challenging scenarios, but just as important as the ones that the EU was forced to handle in the midst of the Polish saga. The way in which the EU addresses these new attacks on the Union’s values will shape the scope and practical ambitions of the toolbox.

The first new challenge that emerges is found yet again in Poland, but in a reverse scenario to the one witnessed thus far. It is no exaggeration to state that Poland’s judiciary was under siege by the executive power during the

time of the PiS’ rule. The siege included the opening of disciplinary proceedings against independent judges, the

creation of ad hoc and partial bodies to exercise such pressures, and even a systemic strategy of removal of judges and appointment of political proxies that left the Polish court system in a state of tatters. It does not come as

a surprise that courts from other Member States raised doubts about the ability of Polish courts to participate

in any credible way in the EU’s instruments of judicial cooperation. Now that the crisis appears to be over, the time has come to pave the way to the normalisation of the Polish judiciary. But how is this to be done without undermining the very values that came under attack? In other words: how will the Polish authorities reform a judiciary that has been transformed by an authoritarian agenda, without falling into the same traps and missteps that so seriously damaged Poland’s courts in the first place?

Take the case of the Polish Constitutional Court. This is a jurisdiction that came brutally under attack by the President of the Republic (a PiS appointee) and the PiS government, until its composition was artificially altered

to the point of losing all its national and international credibility. It is not infrequent to hear constitutional

lawyers refusing to call this institution a ‘court of law’. So how is this to be fixed, and what role can the EU play in solving the conundrum? At first sight, a reform of the legal framework governing the Constitutional Court

could be conceived, in an attempt to normalise its composition and bring it back to the community of reputable constitutional courts. However, any bid to alter the composition of a court runs the risk of making more harm than good, as well as spoiling the purpose of reinstating an independent judiciary through the same means the provoked the crisis itself. But the price of no action is a high one to pay. As long as the Polish Constitutional

Court remains captured by former PiS appointees, the Polish judiciary’s reputation will barely recover from the attacks suffered during the past years. In addition, a hostile pseudo-constitutional court sitting at the very heart of the Polish state can actively contribute to the derailing of any means of normalisation of Poland’s commitment with the rule of law.

Another example of this new generation of rule of law crises takes us beyond Poland. In Spain, the Council

of the Judiciary, the body that governs the Spanish judiciary, including making the appointment of the judges

in the highest courts of the country, is on the verge of putting the entire judiciary in a state of paralysis. This body is made up of twenty members, agreed among the political parties through a qualified majority of three fifths of the votes in Parliament. Under a non-written tradition, thoroughly applied since the earlier years of

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Spanish democracy, the majority in Parliament appointed a majority of members of the Council, including the

President, but the composition was subject to an overall broad consensus among the conservative and socialist

parties. In 2011, the conservatives held the majority in Parliament and a new Council emerged with a majority of conservative appointees. When the time came to renew the Council, the conservatives were now in the opposition

and refused to strike a deal with the ruling party. Since then, the Council is blocked, no appointments have been made to the highest courts and the Supreme Court is on the verge of collapse, with a third of its positions pending appointments that will never arrive, unless the opposition waives its blockage.

This rule of law crisis is new, because it raises the problem of an opposition party holding the institutions of the

State hostage. The institutions at stake are no other than those in charge of ensuring the proper functioning of the judiciary. And it takes no mastermind to observe that the opposition has no incentive to change course, inasmuch the blockage preserves a conservative majority in the Council of the Judiciary. In the meantime, the Supreme

Court is on the verge of collapse, and in the course of time it will be unable to perform its tasks, leaving the judiciary in a state of paralysis at its very top, with unknown consequences (at the time of writing, another rule of law crisis emerged in Spain as a result of a Bill to amnesty the Catalan leaders prosecuted following the frustrated independence coup of 2017; we will address this debate in an upcoming Insight).

So what can the EU do? The Spanish judiciary’s crisis is not the result of an authoritarian government with a eurosceptic agenda, but of an opposition party holding no power in government. The Commission’s attempts to

discipline the Spanish government have little effect in tackling this crisis, whilst the powers of the guardian of

the treaties vis-à-vis opposition parties are unknown to date. The Commission’s approach towards rule of law backsliding is exclusively focused on executive and legislative action, the leadership of which falls on the ruling party, not the opposition. But when the opposition hijacks the institutional machinery of the judiciary of a Member State for its own political advantage, there is little for the Commission to do and say with the current rule of law toolbox.

These two examples show the crude realities and consequences that the EU has to deal with, once that it has articulated a robust rule of law toolbox. The difficulty in enforcing the toolbox does not only appear when the crisis

is at its worst, but it also emerges when the crisis is over, or through crises triggered by unexpected stakeholders. But the EU can hardly say at this point that the restoration of the authoritarian policies, or the acts of an opposition party hijacking a national judiciary, are of no relevance for the Union. Once that the pillars have been

laid out and the legal tools are available, the toolbox should be just as effective for this second generation of rule of law challenges, because the stakes are just as high.

However, in closer inspection, the two examples just referred show that the EU could adapt its toolbox and enrich

it with new utensils. Whilst the managing of a conventional rule of law crisis, as the one we have witnessed

in Poland to date, will trigger the remedial instruments of the toolbox, including defensive and offensive legal actions, the new generation of cases do not necessarily require such an approach. When the challenges concern

the reinstatement of the rule of law, or the appearance of rogue non-governmental stakeholders, the EU has a

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valuable role to play in providing support and mediation. The approach does not necessarily need to be remedial, but proactive in the search for optimal outcomes that are eventually in line with the Union’s values. In fact, the

Union has an interest in the appropriate resolution of these crises and it should invest all the necessary efforts to that effect: it is in the interest of the Union that Poland’s judiciary returns back to normal, as it is also in its interest to avoid that a Member State’s judiciary collapses due to a political impasse.

What seems to be clear is that the remedial approach will hardly work in the two examples referred above. Only a proactive and constructive strategy on the part of the Commission could actively contribute to

fix the ills and wrongs of the second generation of rule of law challenges. In fact, this new stage could contribute to enrich the rule of law toolbox even further, turning it into something more than a bundle of legal remedies, but also into a fully-fledge active policy in support of the rule of law in all the Member States. Considering the spirit of the times and the speed at which illiberalism expands, it might be the only

way forward if the European Union wishes to remain, in the long term, as a club of liberal democracies.

Daniel Sarmiento is Professor of EU Law at the Universidad Complutense of Madrid and Editor-in-Chief of EU Law Live. Sara Iglesias is Professor of EU Law at the Universidad Complutense of Madrid and In-Depth/Weekend Edition editor at EU Law Live.

SUGGESTED CITATION: Sarmiento, D, and Iglesias, S; “Round Two in the EU’s Rule of Law Crisis – Is the EU’s Toolbox Fit for Purpose?”, EU Law Live, 06/12/2023, https://eulawlive.com/insight-round-two-in-the-eus-rule-of-law-crisis-is-the-eus-toolbox-fit-for-purpose-by-daniel-sarmiento-andsara-iglesias-sanchez/

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“The train shall stop in Luxembourg”: AG Ćapeta stands for fundamental rights jurisdiction in CFSP action ( Joined cases KS and KD C-29/22 P and C-44/22 P) Francesca Bandini and Walter Bruno On 23 November 2023, AG Ćapeta delivered her Opinion in the KS and KD joined cases, where she suggests that the Court of Justice should have jurisdiction in actions for damages founded on a breach of fundamental

rights in the area of CFSP, which, given the abolition of the pillar structure, should now be subject to ‘the same constitutional principles as the rest of EU policies’ (point 72).

The facts at the origin of the case are as follows: both KS and KD had family members disappearing or killed

in Kosovo in 1999. In 2008 Eulex Kosovo, a CSDP civilian mission, was established by the EU with the aim of,

inter alia, making sure that crimes occurred in the area were investigated and adjudicated properly. KS and KD, supported by the findings of the Human Rights Review Panel (HRRP) created within the mission, claim that Eulex Kosovo did not fulfill its mission and that their fundamental rights were violated. What is peculiar of this case is the judicial journey made by the applicants. The first action for annulment and non-contractual liability of the EU was initiated in Luxembourg in 2017 and dismissed as the General Court maintained that it lacked jurisdiction, being a CFSP matter.

Consequently, in 2018, KS and KD brought the case before the English High Court of Justice, claiming damages

from the EU, the Council and the High Representative and Eulex Kosovo. Once again, their claim was rejected, with the national court declining jurisdiction and referring to the Court of Justice as the competent one.

This decision prompted the applicants to make a second journey to Kirchberg where, in 2020, they claimed

reparation and compensation for multiple violations of their fundamental rights before the General Court, which, once more, dismissed the case on the ground of jurisdiction, leading to the appeal of its Order and the present stage of the proceeding.

In this ‘bouncing game’ of jurisdiction, AG Ćapeta’s opinion offers food for thought on several levels. Ceci n’est pas Carvalho: ‘Interpretation, not modification, of Treaties’ The judges of the Ninth Chamber of the General Court mentioned the Carvalho case law to support the dismissal of the action brought by KS and KD (point 41). Thus, the Order turned Carvalho into an unavoidable obstacle for

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AG Ćapeta to claim the jurisdiction of the Court. For the success of her argumentation, the Advocate General needs to survive Carvalho’s trap.

The principles underlying the argumentation put forward by the plaintiffs in the Carvalho case echo in this Opinion. AG Ćapeta introduces them through a question in point 95: ‘what does the fidelity to the law require

from the Court? […] strictly abide by the wording of the Treaties […] or […] give preference to EU constitutional principles?’.

The subsequent paragraphs finely distinguish the two cases. KS and KD already felt the need to distance their

situation from Carvalho and claimed that they were not comparable. The General Court, on the contrary, adopted and replicated that reasoning, giving a similar solution: no standing yesterday, no jurisdiction today. The Advocate General stays in the middle: Carvalho principles apply to the current case, but ceci n’est pas Carvalho.

AG Ćapeta concludes that EU Courts are genuinely ‘obliged’ to interpret the Treaties in conformity with the

principle of effective judicial protection, and quotes (point 101) AG Bobek in SatCen v. KF (point 69): Article 47 of the Charter requires provisions of the Treaties to be interpreted ‘so that they can achieve their full potential to provide judicial protection’ (emphasis added). The quote by her (former) colleague is curious. It was rendered

in a CFSP case, yet it fosters the same argument made by claimants in Carvalho as well as by other attempted challenges to Plaumann: interpretation is not modification. Setting aside whether the Plaumann doctrine is a matter of interpretation or modification of the Treaties (see here), this Op-Ed seeks coherence between the

Carvalho judgment and the present Opinion by AG Ćapeta. How shall they coexist if the Court decides to adhere to it?

The question is then whether the Advocate General effectively distinguished the two situations. In this Opinion, AG Ćapeta juxtaposes a general rule (jurisdiction and institutional role for the Court of Justice) and an exception

(jurisdictional limitation). The judges’ restrictive interpretation on standing in Carvalho can be consistent with it, if we assume that the individual access to EU Courts through direct actions (Article 263 para 4 TFEU) represents a mere exception in the system of remedies vis-à-vis the general rule of non-accessibility. However, a difference

remains: a restrictive interpretation of the CFSP limitation allows for a broader access to EU Courts. On the

contrary, the restrictive interpretation of Article 263 para 4 TFEU is at detriment of such access. In the light of ‘the interest of the EU legal order’ to access to justice against fundamental rights violations (point 153), how to agree with both outcomes?

Inside out: what is left of jurisdictional limitation? In the view of the Advocate General, the protection of fundamental rights and the institutional role of the EU

judicature make it possible for the Court of Justice to claim jurisdiction over damage actions in the field of CFSP. What is then the scope of the exclusion, or limitation, of jurisdiction if EU Courts can look into CFSP? In other words, what can the EU courts scrutinise and what cannot?

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In the present case, applicants challenged the decision regarding the extent of funding of Eulex Kosovo, claiming, with a prudent strategy, that it was not political but administrative. Therefore, the Court should have excluded

such act from the jurisdictional limitation. However, AG Ćapeta goes beyond this cautious argument. She

affirms that the distinction based on the nature of the acts is irrelevant. Instead, the claim of fundamental rights violation legitimises the jurisdiction of the Court of Justice of the EU. Whether the act is political, strategic or administrative, it must respect fundamental rights and the EU constitutional values.

Nevertheless, the Courts cannot look into the discretionary policy choices and the coherence of the CFSP policy. EU Courts cannot check the conformity of CFSP acts vis-à-vis CFSP primary law. Furthermore, they cannot interpret such primary and secondary law. Consequently, the EU shall acknowledge a possible lack of consistency and coherence in interpreting and applying CFSP rules.

AG Ćapeta herself suggests to also read her own Opinion in the case Neves 77 Solution, delivered on the same day to better grasp her reasoning (for a comprehensive analysis of such opinion, see the recent Op-Ed by Graham Butler). She writes in Neves 77 Solution: ‘What the Court is allowed to assess […] is whether a CFSP rule as understood by its author is permitted in the light of EU fundamental rights’ (point 72, emphasis added). In other

words, regardless of the policy choice, it shall respect fundamental rights because ‘in constitutional democracies, policy choices are not unlimited’ (AG Opinion in KS and KD, para 115) and ‘the breach of fundamental rights cannot be a political choice in the European Union’ (AG Opinion in KS and KD, point 155).

Accordingly, when fundamental rights are at stake, admissibility should not be questioned, leaving the issue of the degree of scrutiny to a later stage. This, however, raises a pivotal question: how can the Court safely comprehend the meaning of a CFSP rule ‘as understood by its author’?

Who do I call if I want to call Europe?: complete system of remedies and room for national courts A third element worth of analysis draws back to the tension between EU and national courts in granting effective

judicial protection in cases like the one at stake. The problem is double-faceted: on the one hand, a question arises: on what national court could exercise jurisdiction in a damage action in the area of CFSP which entails human

rights violations? On the other hand, there is an ever more poignant issue: is such national court, wherever located, willing or bound to take on jurisdiction when the Court of Justice does not?

With regard to the first aspect, according to AG Ćapeta, no criteria allow for a clear allocation of jurisdiction to a certain national court rather than another. Moreover, having a plethora of competent courts in such a sensitive

policy area could cause an unwishful incoherence in the case-law. Such outcome would indeed be in contrast with the findings of the Court of Justice which has long established the exclusive jurisdiction of EU Courts in action for damages against the EU.

Moving on to the second aspect, the opinion briefly mentions that ‘a denial of jurisdiction by a national court could […] be overcome if the Court adopts the firm position that it does not have jurisdiction’ (point 137).

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Actually, this might not be the case and this saga is a clear example of that. Once rejected by the General Court, KS and KD turned to a national court, but the denial of jurisdiction by Luxembourg was not enough of a reason for the English High Court to hear the case.

There are no guarantees that, if the Court of Justice recognises once and for all its lack of jurisdiction, this would not happen again. The most straightforward reason for such an outcome could be found in a loophole in the idea

of the ‘complete system of judicial remedies’: while constantly invoked, it is not equally sustained by procedural rules. In fact, the EU system does not provide for a provision clearly imposing national courts to hear a case, when

EU Courts decline their jurisdiction. Most likely, in situations such as this one, if the Court of Justice dismisses

the case, the lack of remedy will burden the individual applicant who would again face the question: where to go next? And here it goes, back into the vicious cycle.

Conclusions: the train shall stop in Luxembourg With this Opinion, AG Ćapeta builds upon the fertile ground of constitutional momentum for the Court of

Justice. It quickly emerges in points 130 to 133 of the Opinion, specifically concerning the institutional role of the EU judicature in the European constitutional framework. There are two boundaries that an exceptional

limitation, such as the one at stake, cannot push: ‘safeguarding the institutional structure set out in the Treaties’ and ‘protecting the rights of individuals’ (point 133).

Recognising jurisdiction in such cases means safeguarding the institutional balance provided for by the Treaties

(point 130). In this sense, the Opinion is a complementary application of the principles already affirmed in cases like Pringle: an exceptional legal framework (might it be an ‘additional’ task, as in Pringle, or a limitation, as in KS and KD) cannot alter ‘the essential character of the powers conferred on’ EU institutions by the Treaties.

Additionally, the breach of fundamental rights cannot be a political choice free from judicial review: the protection

of individuals in the framework of the Treaties gives the Court legal legitimacy to render justice in this type of cases.

Finally, in light of the ongoing negotiations for the EU accession to the ECHR, this is the case the

Court was missing at the time of Opinion 2/13 to judge upon the jurisdictional limitation under CFSP.

If it is true that ‘every train that may end up in Strasbourg first needs to stop in Luxembourg’ (para 150), then, according to AG Ćapeta, her proposed interpretation shall detangle the knot of jurisdiction in CFSP cases, also in light of the accession agreement. A train not to miss. This way the Court of Justice could abide by its constitutional vocation, while safeguarding the autonomy of the EU legal order. Indeed, the intervention of numerous Member States (the same Masters of the Treaties responsible for the jurisdictional limitation) supporting the Commission’s view in line with AG Ćapeta’s stance further increases the Court legitimacy to decide accordingly.

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Francesca Bandini is a PhD candidate at the University of Genoa. Her doctoral research focuses on the compatibility of procedural rules before the Court of Justice of the EU with the standard of article 47 of the Charter. Walter Bruno, LLM College of Europe, is Research Fellow at the Max Planck Institute Luxembourg for Procedural Law and PhD candidate at the University of Luxembourg. His thesis in EU procedural law deals with strategic litigation before the Court of Justice of the EU.

SUGGESTED CITATION: Bandini, F. and Bruno, W; “The train shall stop in Luxembourg”: AG Ćapeta stands for fundamental rights jurisdiction in CFSP action ( Joined cases KS and KD C-29/22 P and C-44/22 P)”, EU Law Live, 05/12/2023, https://eulawlive.com/op-ed-the-train-shall-stop-inluxembourg-ag-capeta-stands-for-fundamental-rights-jurisdiction-in-cfsp-action-joined-cases-ks-and-kd-c-29-22-p-and-c-44-22-p-by-francesca/

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Turning the Tables: Will the Commission’s Position Revive in the Apple Case? – AG Pitruzzella Opinion Svitlana Buriak Is the Commission back to the Game? On 9 November 2023, Advocate General (‘AG’) Pitruzzella delivered his Opinion in case C-465/20 P –

Commission v Ireland and Others, a case concerning Ireland’s alleged state aid to Apple Inc. As the AG points out, this case ‘is part of a series of somewhat extensive cases concerning the application of Article 107(1) TFEU to ‘tax

rulings’’ (point 1, AG Opinion). However, the Apple case stands out because this investigation marks one of the first instances in which the Commission began to test the limits of Article 107(1) TFEU to challenge allegedly preferential tax rulings granted to large multinationals.

Following several courtroom losses by the EC in similar cases (e.g., Fiat, Starbucks, Amazon), expectations were

relatively low regarding the Commission’s success in the still pending ones. For instance, Politis (2022) incisively commented on the Court of Justice’s judgment in Fiat (C-885/19 P and C-898/19 P): ‘the ECJ… put an end to

the Commission’s recent case practice on transfer pricing rulings… it seems to have demolished an 8-year laborious effort of the Commission…to employ State aid rules against the advance transfer pricing agreements…‘.

Exactly one year after the seemingly ‘crushing’ decision of the Court of Justice in Fiat, AG Pitruzzella’s Opinion

emerged as somewhat unexpected. The AG recommends that the Court of Justice set aside the judgment under appeal and refer the Apple case back to the General Court on the premise that the Court made several errors of law and procedural errors affecting both the primary and subsidiary Commission’s lines of reasoning. Facts of the Case Apple Operations Europe (‘AOE’) and Apple Sales International (‘ASI’), subsidiaries of Apple Inc., are Irish-

registered partnerships and thus tax transparent in Ireland. From 1991 to 2014, they participated in a cost-sharing agreement (‘CSA’) with Apple Inc., sharing R&D costs and risks for Apple’s products. Under this CSA, ASI and

AOE, retaining intangible assets like IP rights, were licensed to sell Apple products outside North and South

America. These entities operated in Ireland through branches considered Irish permanent establishments (‘Irish branches’). The core issue in the case was determining the profits attributable to these Irish branches.

Under the Advanced Pricing Agreements (‘APAs’) with the tax authority, they were seen as routine entities, with

residual profits from European operations allocated to ASI and AOE as license holders. The dispute centred on

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whether profits from CSA-granted IP licenses should be attributed to ASI’s and AOE’s head offices, non-taxable in Ireland or the US, or to the Irish branches. The legal test applicable under the Irish law The determination of the profits of the Irish branches was subject to the provision of the Irish law related to

the taxation of non-resident companies, namely Section 25 of the Taxes Consolidation Act 1997 (‘TCA 97’). According to this section, ‘a company not resident in the State shall not be within the charge to corporation tax unless it

carries on a trade in the State through a branch or agency, but if it does so it shall… be chargeable to corporation tax on … any trading income arising directly or indirectly through or from the branch or agency, and any income from property or rights used by, or held by or for, the branch or agency’.

Decision of the General Court and Commission’s appeal On 15 July 2020, the General Court annulled the Commission’s decision of 30 August 2016, which stated that the tax rulings granted to Apple’s Irish branches were in breach of state aid rules.

The General Court found that the Commission had incorrectly applied a so-called ‘exclusion’ approach in its

primary line of reasoning. The Court dismissed the Commission’s secondary line of reasoning, stating that the

Commission failed to demonstrate that methodological errors in the tax rulings indeed resulted in a quantifiable tax advantage granted to Apple. Lastly, it also rejected the Commission’s alternative line of reasoning, which

suggested that a selective advantage was granted due to the discretion exercised by the Irish tax authority. The Commission advanced two primary grounds for its appeal, each comprising several distinct parts.

In this Op-Ed, the author selectively examines a subset of these grounds, deemed most intriguing, in conjunction

with AG Pitruzzella’s stance. This examination predominantly focuses on aspects pertaining to legal interpretation, the articulation of the reference framework, and the delineation of the burden of proof upon the Commission to substantiate the existence of a selective advantage. Reference Framework Notwithstanding the lack of direct challenges to the scope of the reference framework, AG Pitruzzella deemed it imperative to assert that the determinations made by the General Court in the Apple case were in line with the

jurisprudence of the Court of Justice in the Fiat case. He specifically pointed out that the Commission’s reliance

on the arm’s length principle (‘ALP’) in state aid inquiries is possible ‘only if and to the extent that its application is provided for by the tax legislation of the Member State concerned’ (point 24, AG Opinion).

In this context, AG Pitruzzella reinforced the notion that the ALP does not inherently embody a principle of equality among stand-alone or integrated entities, as might be inferred from the general system of corporate taxation of a Member State or Article 107 TFEU.

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The AG’s analysis of the grounds of the Commission’s appeal refers exclusively to the Irish domestic rule on the branch profits of non-resident taxpayers. However, the critical element of the dispute lies in the fact that this

provision does not include a methodology of the branch trading income determination. Consequently, the focal points of the appeal predominantly revolved around the individual components of this absent methodology.

An ‘exclusion’ approach In the appeal, the Commission contended that the General Court misinterpreted its decision

by asserting that it employed a so-called ‘exclusion’ approach for attributing profits to the Irish branches (point 19 et seq, AG Opinion). In this context, the ‘exclusion’ approach implies that if IP licenses cannot be allocated to the head offices of ASI and AOE due to an absence of personnel, then they should be attributed to the Irish branches without considering whether these branches actually perform any related functions.

AG Pitruzzella advocated in favour of upholding this ground of appeal. His analysis indicated that the

Commission’s conclusion to attribute IP licenses to the Irish branches was not solely predicated on the fact that ASI and AOE lacked personnel for IP-related functions. Rather, it was a combination of this fact coupled

with ‘the multiplicity and centrality of the roles assumed by the branches’ in relation to the IP licenses, which underpinned the Commission’s decision.

The Court of Justice cannot conduct a factual assessment but only establishes the errors in law. From this perspective, the Opinion persuasively demonstrates that the Commission’s determination did not exclusively rely

on the exclusion approach. Nonetheless, AG Pitruzzella’s Opinion does not affirmatively establish the existence of license-related functions at the branch level. Should the European Court of Justice endorse AG Pitruzzella’s

viewpoint, the General Court would conduct a re-evaluation of the IP-related functions performed by Irish branches and whether they would be sufficient for attributing the licences to them. Separate Entity Approach The second part of the first ground of appeal asserts that the General Court, by evaluating the functions performed by Apple Inc. for the purpose of license income attribution, infringed the separate entity approach on which the

Irish relevant legal provision was based (point 37 et seq, AG Opinion). The Commission argues that functional

analysis for determining the trading income of Irish branches should be confined to intra-group dealings between ASI, AOE, and their respective Irish branches.

In contrast, Ireland, alongside ASI and AOE, advocates that under Irish law, profit attribution to a PE should

exclusively rely on the evaluation of that PE’s functions. They contend that the activities of the head office or other parts of the group should ‘have no bearing on the application of Section 25 of the TCA 97’ (point 52, AG Opinion).

AG Pitruzzella acknowledged a lack of clarity regarding the exact legal test governing Section 25 of the TCA

97. However, he derived the methodology’s elements based on explanations provided by the parties during

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proceedings at the General Court. Interestingly, while the AG did not directly refer to the Authorised OECD Approach (‘AOA’), he observed that the methodology as explained by Ireland was similar to that of the AOA.

For assessing where the IP licenses and derived profits should be attributed, the AG identified three critical

elements: (i) proof of control of the asset; (ii) activities actually carried out by the branch; and (iii) the allocation of assets, functions, and risks between the branch and other parts of the company. He endorses a comparative approach to profit determination, as inferred from the third element, since attribution cannot ‘be carried out in an

abstract manner that ignores the activities and functions within the company as a whole’ (point 56, AG Opinion). This conclusion, in line with standard TP assessments, necessitates a comparative approach and a holistic view of the group to understand the value of functions for a multinational enterprise. Yet, there is a notable contradiction

with the view of Ireland and Apple, who argue that such an approach does not stem from the domestic law

provision, which stipulates that a branch is to ‘be chargeable to corporation tax on any trading income arising directly or indirectly through or from it’—a provision that lacks explicit reference to a comparative approach. Yet, the AG’s

opinion interprets this provision as embodying the principle of territoriality rather than a profit determination methodology. The methodology appears to be established solely on the explanation of the Irish authority about their accustomed way to apply Section 25 of the TCA 97.

Concerning the scope of a comparative approach, AG Pitruzzella concluded that in the Apple case, there is a need ‘to limit the analysis to the relations between the head offices and the Irish branches’. Interestingly enough, according

to AG, this need arises ‘from the choice made by Apple Inc., in its commercial autonomy, to transfer, under the cost-sharing agreement, part of its profits to ASI and AOE. It is therefore a matter of distributing such profits to the various subdivisions of those companies, from which Apple Inc. remain separate’ (point 59, AG Opinion). He concluded that comparing the functions of the Irish branches with those of Apple Inc. constituted a legal error.

This conclusion about Apple Inc.’s commercial autonomy in allocating profits under a CSA is somewhat

controversial in light of the AG’s analysis. In point 17, AG Pitruzzella noted that ‘in the practice of multinationals, an intra-group cost-sharing agreement may make it possible to allocate costs and related profits in jurisdictions where taxation is lower.’ The whole purpose of the ALP is hence to restrict commercial autonomy to shift profits without

a commercial reason for it. The rationale for limiting the scope of assessment could be based on the separate

entity approach or a transaction-by-transaction transfer pricing approach, but in the author’s view, not on the commercial autonomy to allocate profits as preferred by an MNE.

In addition, endorsing a comparative approach in combination with limiting the analysis of the IP-related functions of the Irish branches and head offices, potentially reverts the analysis to an ‘exclusion’ method: if the IP is not attributable to the head office, it must be attributed to the Irish branches, whose functions are more

sophisticated than those of the letter-box companies. The analysis seems to overlook the potential relevance of

Apple Inc.’s functions for assessing profits allocated to the IP license, not merely within the scope of intra-group

dealings between ASI, AOE, and their branches, but also among the parties to the CSA agreement. Following

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The author maintains that the separate entity approach necessitates limiting assessments to the parties involved

in an intra-group transaction or dealing, yet evaluating which entity is entitled to profit may require examining multiple transactions or dealings, which potentially within or beyond the competency of a Member State’s tax authority.

Burden of proof of an advantage In the appeal, the Commission challenged the General Court’s application of the burden of proof standard, arguing that the Court had erroneously expected the Commission to demonstrate actual reduced tax liabilities

for ASI and AOE as a result of the advance decisions, asserting that merely identifying methodological errors was insufficient (point 99, AG Opinion). The Commission argued that the burden of proof should align with the standard used in the market economy operator test, where it is only required to establish the ‘plausibility’ of an advantage, leaving the burden of justifying such an advantage to the Member State involved.

AG Pitruzzella referenced the Court of Justice’s practices, stating that ‘the Commission cannot merely assume, based on a negative presumption arising from the lack of information to prove the contrary, if there is no other

evidence positively establishing the actual existence of such an advantage’ (point 103, AG Opinion). He further posited that identifying an advantage does not stem from unsubstantiated claims or mere plausibility but rather from specific methodological inaccuracies affecting various aspects of the profit calculation. Such inaccuracies likely lead to a systematic underestimation of the profits attributable to the branches in question. Thus, the AG critiqued the General Court for incorrectly applying the proof standard in this context.

In this respect, it is essential to recognise that applying the ALP is not an exact science, and there is no singularly

correct transfer pricing methodology for every case. Specific methodological inaccuracies do not necessarily equate to an economic advantage. However, the potential for State aid concerns arises only when the selected methodology and its outcomes are evidently inappropriate (Buriak & Lazarov, 2019: sec. 3.4.1). Other technical TP grounds of appeal In the last part of the appeal, the Commission challenged the findings of the General Court concerning technical

TP matters such as (i) the classification of the functions performed by the Irish branches as ‘less complex’ for

the purposes of choosing the tested party (point 109, AG Opinion) and (ii) the choice of the operating costs as the profit level indicator for the Irish branch of ASI and AOE (point 118 et seq, AG Opinion). AG found the complaints (within certain limits) well founded.

Due to spatial constraints, the author does not address these appeal grounds individually. Nevertheless, it is

observed that the Court of Justice infrequently engages in detailed examination of the actual transfer pricing rules

and the methodologies employed in its decisions concerning state aid and transfer pricing. Despite this, there is

a significant interest in the development of a judicial practice that thoroughly addresses the technical nuances of profit attribution in such cases.

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Dr. Svitlana Buriak is a Tax Advisor at Loyens & Loeff (Amsterdam) and Asst. Professor at the University of Amsterdam, Amsterdam Centre for Transfer Pricing and Income Allocation.

SUGGESTED CITATION: Buriak, S.; “Turning the Tables: Will the Commission’s Position Revive in Apple Case? – AG Pitruzzella Opinion”, EU Law Live, 05/12/2023, https://eulawlive.com/op-ed-turning-the-tables-will-the-commissions-position-revive-in-apple-case-ag-pitruzzella-opinion-bysvitlana-buriak/

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The Court of Justice and headscarves at work: discretion in EU anti-discrimination law: a dangerous precedent (Case C-148/22 OP v Commune d’Ans) Erica Howard In OP v Commune d’Ans (C-148/22), the Grand Chamber of the Court of Justice was asked to decide on whether

rules prohibiting the wearing of religious headscarves at work constitute discrimination against Directive 2000/78. However, in contrast to the five previous cases on this issue – Achbita (C-157/15), Bougnaoui (C-188/15), Wabe and Müller (C-804/18, C-341/19) and LF v SCRL (C-344/20)– this is the first headscarf case concerning a

public authority rather than a private employer. This difference appears to have prompted the Court to go even

further in allowing restrictions on the wearing of religious symbols at work. It allowed public employers a margin of discretion in deciding whether: to ban all religious symbols for all employees; to ban these only for employees

who are in direct contact with customers; or, to allow all their employees to wear such symbols (OP v Commune

d’Ans (C-148/22, para. 33). This introduction of a margin of discretion in EU anti-discrimination law sets a dangerous precedent.

OP had worked as a lawyer for Commune d’Ans, a municipal authority, since 2016. She had little contact with customers. In February 2021 she gave the authority notice of her intention to start wearing the Islamic headscarf

at work. The authority decided to prohibit her from displaying convictional signs at work and to include this prohibition in the work regulations. The referring court asked, first, whether a public administration can establish

an entirely neutral administrative environment which prohibits all staff from wearing symbols of conviction, whether they are in direct contact with the public or not. Second, whether they can do so even if that neutral prohibition appears mostly to affect women and may thus constitute disguised gender discrimination. Indirect discrimination and Justification The Court follows its previous headscarf judgments and mentions that there is direct discrimination if the

criterion used is inextricably linked to one or more specific religions or beliefs but that it is not apparent that this is the situation here (OP v Commune d’Ans (C-148/22, para. 25)). A workplace rule prohibiting the wearing

of any visible signs of beliefs without distinction, which treats all workers the same, does not amount to direct discrimination, but can constitute indirect discrimination (OP v Commune d’Ans (C-148/22, paras 26-29, referring

to Achbita (C-157/15), paras 30, 32, 34; Wabe and Müller (C-804/18, C-341/19, paras 52 and 59; and LF v SCRL (C-344/20, paras 33 and 34)). Although it is up to the national court to decide whether there is direct or indirect

discrimination, the Court gives guidance on this. To be justified, an indirectly discriminatory rule must have a

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legitimate aim and the means used to achieve that aim must be appropriate and necessary (Directive 2000/78, Article 2(2)(b)(i)). The Court holds that the aim of establishing an entirely neutral administrative environment is

a legitimate aim (OP v Commune d’Ans (C-148/22, para. 32)). It continues that a public authority has a margin of discretion in designing the neutrality of its public services, but the rule must be pursued in a consistent and systematic manner and be limited to what is strictly necessary. It is for the national courts to determine whether these conditions are complied with (OP v Commune d’Ans (C-148/22, paras. 33 and 37-38)). Margin of discretion The Court, therefore, allows public authorities a margin of discretion (OP v Commune d’Ans (C-148/22, para. 32)). This introduces discretion into EU anti-discrimination law, and this is worrying for a number of reasons, including

that it creates legal uncertainty as it allows not only Member States and their courts but also a wide range of public authorities to decide for themselves how to regulate the wearing of religious symbols in employment

and, by doing so, potentially exclude a number of religious people from employment. According to the Court, Directive 2000/78 allows account to be taken of the specific context of each Member State and allows each Member State and their courts ‘and, where appropriate, the infra-state entities’ a margin of discretion in achieving the necessary reconciliation between the freedom of religion and the legitimate aim that may be invoked in order to justify indirect discrimination (OP v Commune d’Ans (C-148/22, para. 35), referring to Wabe and Müller (C804/18, C-341/19, para. 87-88) but adding the text in italics)). Therefore, the Court goes further than it did in

the latter case, where it determined that Member States have a margin of discretion to reconcile the freedom of religion with the legitimate aim.

It might be true, as the Court points out, that there is a lack of consensus in the EU about prohibitions on the

wearing of religious symbols at work (OP v Commune d’Ans (C-148/22, para. 35)) but does this mean that a

margin of discretion must be given to such a large group? Such a margin is not given in relation to other grounds covered by EU discrimination law, where the Court of Justice in general strives for uniform application. The Court has stated that the meaning and scope of Community law and the principle of equality, should be ‘given

an autonomous and uniform interpretation throughout the Community’ (Chacon Navas (C-13/05, para. 40)). Allowing a margin of discretion would not only go against this but also against the aims of anti-discrimination law, which is to protect vulnerable groups and to promote full participation and inclusion in employment (Directive

2000/78, Recitals 9 and 11) through the setting of uniform standards. In its six headscarf judgments, the Court

allows employers to exclude certain religious people from part or even from the whole of their employment. The

margin of discretion can thus be used to tolerate discrimination and prejudice against certain religious groups, and this is precisely what EU equality law is trying to combat.

Another problem with allowing a margin of discretion is that this could lead to a hierarchy of discrimination

grounds, with the protection against some grounds stronger than that against other grounds. The margin of discretion means that religious discrimination is placed at the bottom of the hierarchy. Such a hierarchy could lead

to a levelling down of the protection against discrimination on other grounds as the Court has set a precedent for

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introducing a margin of discretion in relation to discrimination law in OP v Commune d’Ans (C-148/22) and this could be followed for other grounds. It could also affect the freedom of movement of people who wear religious symbols. Moreover, accepting different, lower standards for the justification of religious discrimination would go

against previous case law of the Court of Justice which has consistently held that exceptions to the principle of

equal treatment must be interpreted strictly (Johnston (C-222/84, para. 36); Kreil (C-285/98, para. 20); Prigge (C447/09, para. 56 and 72)). Justification of indirect discrimination is such an exception. Customer-facing employees In the previous five cases, one of the conditions for holding that indirect discrimination was necessary was whether

the neutrality rule was limited to customer-facing employees (Achbita (C-157/15, para. 42), Wabe and Müller (C-

804/18, C-341/19, para. 63), LF v SCRL (C-344/20, para. 39). In OP v Commune d’Ans (C-148/22), the Court drops this part of the justification test for public authorities and allows them to choose whether the neutrality rules apply to all employees or just those who come into contact with customers. The Court states that such a rule

is necessary as long as it covers all signs, large or small (OP v Commune d’Ans (C-148/22, para. 39)). Therefore, the Court introduces an even less strict justification test for indirect discrimination than it did in its previous headscarf judgments. But does this not go beyond what is strictly necessary? The aim of the neutrality rule is, as

the Court points out, to establish an entirely neutral environment within the authority. The Court sees this aim in the principles of impartiality and neutrality of the state in Articles 10 and 11 of the Belgian constitution (OP v

Commune d’Ans (C-148/22, para. 32)). However, these articles do not mention impartiality and neutrality, instead

they mention equality before the law and the prohibition of discrimination. This indicates that the impartiality and neutrality are aimed at service users and it is not really necessary to extend the prohibition to employees who are not in contact with those services users. Dropping the requirement that workplace neutrality rules must

be limited to customer-facing employees for public authorities not only goes beyond what is necessary and thus

cannot be justified, but it also means that an even larger group of religious employees will be excluded from

employment. This, again, goes against the aim of EU anti-discrimination law, which is protecting vulnerable groups, including religious groups, from discrimination and exclusion. Gender Discrimination The Court of Justice declares the second question inadmissible, because the referring court does not explain

the factual and legal context, nor the factual circumstances of the question (OP v Commune d’Ans (C-148/22, paras. 42-50)). This is in line with what the Court has done in earlier cases. It appears to be very reluctant to recognise that workplace neutrality rules, even if banning all symbols of religion and belief, generally affect a much larger proportion of women than men and thus could amount to gender discrimination. The six headscarf cases decided to date suggest that workplace neutrality rules specifically affect Muslim women and their employment opportunities. This, as mentioned, goes against the aims of EU anti-discrimination law.

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Conclusion The Court of Justice judgment in OP v Commune d’Ans (C-148/22) sets a dangerous precedent because it

introduces a margin of discretion into EU anti-discrimination law. This is not only problematic because it can

lead to legal uncertainty and threatens the uniform application of this area of law; but also because it can lead to

a hierarchy of discrimination grounds and the levelling down of the protection against all grounds. This judgment can lead to more exclusion and prejudice against groups vulnerable to discrimination, which is exactly what EU anti-discrimination law is trying to combat.

Erica Howard is Professor Emerita of Law, Middlesex University, London and the author of the book ‘Headscarves and the Court of Justice of the European Union An Analysis of the Case Law’, due to be published in December 2023.

SUGGESTED CITATION: Howard, E; “The Court of Justice and headscarves at work: discretion in EU anti-discrimination law: a dangerous precedent (Case C-148/22 OP v Commune d’Ans), EU Law Live, 05/12/2023, https://eulawlive.com/op-ed-the-court-of-justice-and-headscarves-at-workdiscretion-in-eu-anti-discrimination-law-a-dangerous-precedent-case-c-148-22-op-v-commune-dans-by-erica-howard/

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Collective rights management bodies do not automatically have legal standing under the Enforcement Directive 2004/48/EC says the Court of Justice (Case C-201/22 Telia) Sabine Jacques Introduction In light of the substantial role played by collective rights management societies in the widespread dissemination of

copyrighted content, particularly in the digital sphere across Europe and beyond, it becomes imperative to examine

whether these entities possess the legal standing to pursue remedies under Directive 2004/48/EC. This inquiry is particularly pertinent when these societies act on behalf of right-holders who have delegated administrative

mandates and powers of attorney concerning their rights. The scope of discretion granted to Member States in

determining the extent of legal standing, its specifics, and the modes of representation for these societies has raised uncertainties.

Member States have the authority to decide the breadth of legal standing granted to these societies and whether they can act under their own names or on behalf of the original right-holders, or both. The significance of this issue becomes pronounced as these organisations may be better positioned and equipped than the right holders

themselves to initiate legal proceedings, especially concerning intellectual property infringements involving small and medium-sized enterprises (SMEs) as right-holders. The case of Kopiosto v Telia (C-201/22) delves into the

core of this matter, seeking to comprehend the discretion afforded to Member States in recognising collective rights management societies as legal entities entitled to seek, in their own name, the application of the remedies outlined by the Directive.

Kopiosto v Telia and the Intricacies of Legal Standing The dispute unfolded between Kopiosto, a collective management organisation that administers licenses on behalf of numerous authors through mandates granted by those authors, and Telia, the operator of a cable television network in the Nordic region responsible for broadcasting domestic free-to-air television channels.

Central to the case were Telia’s operations in Finland, where the Internet Service Provider (ISP) provides broadband customers with the option to access various TV channels through their internet broadband subscriptions. The key

focus of the disagreement was on TV channels simultaneously broadcast free-to-air. Importantly, the dispute did not involve the reproduction right, and considerations regarding storage capabilities or time-shifting were

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excluded. Telia had retransmitted television broadcasts, and the contention arose from the absence of prior authorisation for this retransmission. It was argued that such retransmission infringed the copyright works of the authors represented by Kopiosto. This infringement was primarily posited on Kopiosto’s role as a contractual licensing organisation, and alternatively, through the mandates conferred upon it by the copyright holders.

Against this backdrop, Telia decided to challenge the legal standing of Kopiosto to bring an action for copyright infringement. The Finish Supreme Court eventually decided to seek clarification from the Court of Justice on the interpretation of Article 4(c) of the Enforcement Directive.

The Intersection of National Discretion and Legal Standing for Collective Rights Management Bodies Before the present case, the Court of Justice had already highlighted that if the national law of a Member State acknowledges a body collectively representing intellectual property right-holders as possessing a direct interest in the defence of IP rights and permits it to bring legal proceedings for that purpose, the state must recognise

such a body as a legal entity entitled to pursue, in its own name, the application of the measures, procedures, and remedies provided for by the Directive SNB-REACT (C-521/17, paras. 32 & 34). Hence, this is contingent

upon the requirement that the said body is considered by the relevant national laws to possess a direct interest in safeguarding these rights, and such legislation grants it the authority to initiate legal proceedings for that objective (Telia, at para. 31).

SNB-REACT has previously rejected the notion that Member States have unrestricted discretion in deciding

whether collective rights management bodies should possess legal standing. Such discretion, if left unchecked, would contradict the directive’s spirit and the EU’s harmonisation objectives, as maintaining divergent national laws would undermine these goals.

The question then arises: to what extent does national discretion play a role in determining the legal standing of collective rights management bodies? While there is a suggestion that all such bodies should have the ability to

initiate legal proceedings, the inclusion of ‘in so far as permitted by and in accordance with the provisions of the applicable law’ prompts scrutiny. Some argue that collective rights bodies should be allowed to sue but only under

specific conditions established by national law. Alternatively, others contend that the reference to applicable law

involves a conflict of laws rule, granting Member States the authority to determine which law applies to decide the issue of legal standing in a given case. This may include, for instance, the substantive law of the country where

the infringement occurred and protection is sought, the country of origin of the work, or the country where the contract was executed.

Extensive Member State Discretion in Determining Legal Standing In the Kopiosto v Telia case, the Court of Justice determined that the legal standing of collective rights management organisations under the Enforcement Directive 2004/48/EC hinges on their capacity to initiate infringement proceedings of intellectual property rights in member states. This capacity may arise from specific legal provisions

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or general procedural rules. Furthermore, the Court emphasised the need to interpret Article 4(c) in conjunction

with recital 18 of the Directive, which aims to extend recognition not only to intellectual property right-holders but also to other entities or individuals with a direct interest in defending those rights. They should be acknowledged as persons entitled to seek the application of the measures, procedures, and remedies provided by the directive, ‘in so far as permitted by and in accordance with the applicable law.’

In this context, Member States possess greater discretion in acknowledging various entities, including specific

bodies, as having the same legal standing (Telia, para. 42; SNB-REACT, para. 28). The term ‘applicable law’ encompasses both EU and national legislation. However, the Court acknowledges the limitations of harmonisation regarding the conditions under which a collective management organisation is deemed to have a direct interest

in defending intellectual property rights. Notably, as it currently stands, the ‘provisions of the applicable law’ mentioned in Article 4(c) of Directive 2004/48 specifically refer to the national law of the Member States (Telia, para. 48). Consequently, member states are not obliged to recognise that collective rights-management bodies, regularly acknowledged as having the right to represent intellectual property rights holders, inherently possess a

direct interest in seeking the application of the directive’s measures, procedures, and remedies in their own name. Recognition of such a direct interest must align with the applicable national legislation (Telia, 50). Conclusion While the goal should be to enhance the legal standing of collective management societies managing catalogues

of works, additional efforts in harmonisation are required. This involves establishing a rebuttable presumption, allowing the court, the original right-holder, or anyone deriving rights or interests from the specific case, to demonstrate the absence of such authorisation.. In Telia, the Court of Justice reminds us that member states

bear an important role in determining whether a collective management organisation has the standing to bring legal action. If the national law does not explicitly recognise or establish a direct interest, it may impact the organisation’s ability to initiate legal proceedings under Directive 2004/48/EC.

Dr Sabine Jacques is a senior lecturer at the University of Liverpool, school of law and social justice.

SUGGESTED CITATION: Jacques, S.; “Collective rights management bodies do not automatically have legal standing under the Enforcement Directive 2004/48/EC says the Court of Justice (Case C-201/22 Telia)”, EU Law Live, 04/12/2023, https://eulawlive.com/op-ed-collective-rights-managementbodies-do-not-automatically-have-legal-standing-under-the-enforcement-directive-2004-48-ec-says-the-court-of-justice-case-c-201-22-telia-by-sabi/

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A critique of AG Emiliou’s Opinion in Commission v UK (C516/22) regarding Article 351 TFEU Paschalis Paschalidis AG Emiliou had the rare opportunity to render an Opinion in a case that, in many respects, is one of a kind. Commission v UK (judgment of the Supreme Court) (C-516/22) is an infringement action against a former Member State for breach of EU law arising out of a judgment of the UK Supreme Court rendered after the withdrawal of the UK from the EU but prior to the end of the transition period.

Readers may have been surprised by the fact that, out of all possible issues on which the Commission could have pursued the UK following its withdrawal, it chose to do so in respect of the recognition and enforcement of the

Micula v Romania award (the ‘Award’) in the UK. In 2015, the Commission had taken a Decision declaring

that Romania’s payment of a 2013 ICSID Award would constitute incompatible State aid (the ‘Decision’). The Commission considered that, by recognising and enforcing the Award, while the Miculas’ challenge to the Decision before the EU Courts was still pending, the UK Supreme Court had infringed the principle of sincere

cooperation, the grandfathering clause contained in Article 351 TFEU, the preliminary reference procedure and the standstill obligation contained in Article 108(3) TFEU.

The present Op-Ed limits itself to the second of these issues (for a general overview of the AG’s Opinion, see Trajan Shipley’s Op-Ed): AG Emiliou’s assessment of the Commission’s allegation according to which the UK

Supreme Court breached Article 351 TFEU by giving priority to the recognition and enforcement of the Award over its EU-law based obligations to respect the terms of the Commission’s Decision.

This issue is significant not only because it concerns the interplay of EU and international law but also because, if the UK Supreme Court correctly applied Article 351 TFEU, it is not evident that it should have stayed proceedings and/or referred any questions for a preliminary ruling to the Court of Justice. It is also the one issue which suggests that the Commission’s decision to pursue the UK may also have served other more questionable aims and in respect of which AG Emiliou’s Opinion opens itself to considerable criticism.

The infringement action: does the Commission intend to present the General Court with a fait accompli? Those who have been following the Micula case cannot help but question the motives behind the Commission’s decision to pursue a former Member State for a decision that – it must be remembered – its Supreme Court could have taken without any question of infringement of EU law only months later, ie after the end of the transition period.

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The question of how Article 351 TFEU extends to the obligations of Member States to comply with an Award under the ICSID Convention is a key part of the Miculas’ challenge to the Commission’s Decision. More than 8 years since the Commission took the contested Decision, it is still sub judice before the General Court. Central to their case, however, is the argument that the obligations owed by ICSID States under Article 54 of the ICSID

Convention, to recognise and enforce ICSID awards as if they were final judgments of their own state, are owed not just to the investor’s (and award creditor’s) home State, but to all ICSID states. It is worth noting that, like

the UK, both Romania (the addressee of the Decision) and Sweden (the Miculas’ home State) ratified the ICSID Convention before acceding to the EU, so it was evident that Article 351 TFEU was potentially in play.

In this context, one cannot help but think that the Commission’s decision to initiate a proceeding against the UK regarding this question may have been intended to present the General Court with a fait accompli: a judgment by

the Court on the application of Article 351 TFEU, including the interpretation of Article 54 of ICSID, in the context of the Micula case but in proceedings in which the Miculas cannot participate.

The Court should bear this in mind, should it decide that, contrary to AG Emiliou’s principal line of argument (points 113-120), Article 351 TFEU can form the basis of an infringement action. Article 351 TFEU does not authorise the Court to interpret Art 54 ICSID AG Emiliou considered that in order to assess whether the UK infringed Article 351 TFEU, ‘the Court must be

able to incidentally interpret clauses of international agreements, even where those agreements are not part of EU law’ (point 92, emphasis added).

The AG’s reference to ‘incidental’ interpretation is unfortunate because the Court does not have the power to

interpret provisions of international treaties to which the EU is not a party (Commission v Slovakia, C-264/09, para. 40), let alone offer binding interpretations of such provisions. Rather, as the Court held in Commission v Slovakia, it can at most ‘examine the factors which make it possible to determine’ whether the treaty at issue imposes

an obligation which cannot be affected by the TFEU (para. 40). This means that whether Article 54 of the ICSID

Convention creates an obligation for the UK and corresponding rights for non-EU member States is – as far as the Court is concerned – a question of fact. By contrast, ‘incidental interpretation’ implies that the ICSID

Convention is – as far as the Court is concerned – part of the applicable law that the Court has the authority to ‘interpret’ (albeit incidentally). This, however, is not the case.

Moreover, as the Court’s case law has consistently held (Levy, C-158/91, para. 21; Evans Medical, C-324/93, para. 29), when the interpretation of a treaty (other than one to which the EU is a party) arises in the context of a preliminary ruling, the interpretation of that treaty is entirely a matter for the national court. It seems equally

clear that this should no less be the case when a national court is interpreting a treaty for the purpose of deciding whether a reference for a preliminary ruling under Art 267 TFEU is, or is not, necessary.

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The implications for the present case are significant because, while the Commission generally has to establish the

facts that constitute the alleged infringement, in this case one key fact is the meaning of Article 54 of the ICSID Convention. The supreme court of the Member State concerned – a court which has the power to interpret Article 54 of the ICSID Convention not only as a question of fact (from the perspective of EU law), but also as a question of law by virtue of the fact that the UK is a party to the ICSID Convention – has clearly decided that

Article 54 of the ICSID Convention is owed to all the Contracting States to the ICSID Convention, including

several non-EU Member States, each of which can demand from the UK to comply with that obligation (see paras. 101-108 of the contested judgment).

Whether this is the correct interpretation of Article 54 can be authoritatively decided only by the International

Court of Justice pursuant to the procedure laid down in Article 64 of the ICSID Convention. However, neither Romania – which presumably would have had every interest in doing so – nor any other State party to the ICSID Convention has brought proceedings challenging the UK’s interpretation of Article 54. In fact, the only entity

challenging this interpretation of Article 54 of the ICSID Convention by the UK is the Commission, a body in relation to which the ICSID Convention is res inter alios acta.

Given that, unlike the Court of Justice, the UK Supreme Court has the power to interpret Article 54 of the

ICSID Convention, the Court of Justice must surely be bound to accept the Supreme Court’s interpretation.

Indeed, given that that interpretation is a matter exclusively for the national court, it is not for the Commission, still less the Court, to determine that that interpretation is wrong. At any event, where a national court has, as here, carried out a bone fide interpretation of Article 54 of the ICSID Convention pursuant to the rules of treaty

interpretation laid down in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (‘VCLT’), that should be the end of the matter.

Therefore, even if certain aspects of the UK Supreme Court’s interpretation of Article 54 of the ICSID Convention were to appear as ‘problematic’ as AG Emiliou suggests (point 144), that is not enough to consider, in the context

of infringement proceedings, that Article 54 does not create obligations to third states that must be safeguarded by Article 351 TFEU.

AG Emiliou’s criticism of the Supreme Court’s interpretation of Article 54 is itself ‘problematic’ Until the Court’s judgment in Republic of Moldova, the Court’s established case law and practice was to interpret international treaties in accordance with the rules of treaty interpretation established in Articles 31 and 32 VCLT which the Court considers to bind the EU (see e.g. Brita, C-386/08, paragraphs 40-43).

However, in Republic of Moldova (C-741/19, paras. 40-66), the Court interpreted Article 26 of the Energy Charter

Treaty not in accordance with the VCLT rules of treaty interpretation but in conformity with the rules of EU primary law so as to eliminate the intra-EU application of this provision (see my Op-ed in EU Law Live). This

was a serious faux pas on the part of the Court. It would be the end of the international community as a rulesbased system if its members were allowed to rewrite their treaty obligations by invoking norms of their domestic www.eulawlive.com

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legal order. This is why, as a rule, Article 27 VCLT does not allow parties to treaties to invoke the provisions of their internal law as justification for their failure to perform a treaty.

AG Emiliou made the same mistake. In points 143-158 of his Opinion, he set out to assess whether Article 54 of

the ICSID Convention creates obligations that the UK owes to third countries parties to the ICSID Convention (e.g. USA or Australia) and that these countries can require the UK to comply with. In doing so, he came to the

same view as the Commission, namely that Article 54 of the ICSID Convention did not create an obligation to recognize the Award that the UK owed to third countries parties to the ICSID Convention. With all possible respect to the AG, his analysis is seriously flawed. First, in its analysis of Article 54 of the ICSID Convention, the UK Supreme Court followed the rules of treaty interpretation laid down in Articles 31 and 32 VCLT (paras. 104-108). Indeed, it interpreted Article 54 of the ICSID Convention in good faith in accordance with the ordinary meaning to be given to its terms in their

context and in the light of its object and purpose. In that respect, the Supreme Court took account of the context

of Article 54, namely the structure of the ICSID Convention, and the fact that Article 64 creates an unqualified

right of any state to bring before the ICJ any dispute as to the interpretation of ICSID. As a supplementary means of interpretation, the UK Supreme Court examined the ICSID Convention’s travaux préparatoires and came to the conclusion that they too supported its interpretation of Article 54 of the ICSID Convention.

AG Emiliou’s interpretation of Article 54 of the ICSID Convention, by contrast, does not comply with these mandatory customary rules of treaty interpretation. Indeed, he does not even examine whether the UK Supreme

Court’s interpretation of Article 54 of the ICSID Convention is flawed by reference to Articles 31 and 32 VCLT.

This despite the Court’s case law that treaties must be interpreted in according with the VCLT rules (Brita, C-386/08, paras. 40-43). At no point does he consider the ordinary meaning of the terms of Article 54 of the

ICSID Convention in their context and in the light of the Convention’s object and purpose, as required by Article 31(1) VCLT. Instead, he simply found the UK Supreme Court’s interpretation ‘problematic’. This is, however, not enough to render it a clearly implausible interpretation that deviates from Articles 31 and 32 VCLT.

Second, none of the three reasons given by AG Emiliou to characterise the UK Supreme Court’s interpretation of Article 54 as ‘problematic’, on closer examination, withstands scrutiny.

His first reason, at points 145-147, is that the UK Supreme Court supposedly failed to examine whether Article

54 of the ICSID Convention does not only create obligations on the UK but also corresponding rights for non-member States. He considered that the UK Supreme Court ‘glossed over’ the question whether ‘would each and every third State which is party to the ICSID Convention (currently, well over 150) be able to invoke the United

Kingdom’s international responsibility for that refusal, and to act against that State, through the procedures provided for

in international law, in order to obtain cessation of the wrongful act and/or reparation of the injury caused?’ (point 147).

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Yet, this is precisely the question that the UK Supreme Court sought to answer in paragraphs 103-108 of its judgment. It is alarming that the AG failed to grasp this. The fact that the UK Supreme Court used the appropriate terminology of public international law (ie ‘obligations owed by the UK’) without translating this into the EU jargon of ‘corresponding rights’ in favour for third countries may explain the source of the AG’s confusion.

Indeed, at paragraph 101 of its judgment, the Supreme Court expressly held that the Miculas could succeed on Article 351 TFEU ‘only if a relevant obligation under ICSID is owed by the United Kingdom to a non-member

state’ and that the question before it was, therefore, ‘whether the specific obligation of the United Kingdom under the

ICSID Convention to enforce this award is owed by the United Kingdom to non-member states’ (emphasis added). At paragraphs 104-108, the Supreme Court continued to refer to the obligations created by Article 54 of the ICSID Convention as ‘owed by’ the UK to each of the Contracting States to the ICSID Convention, which include

several non-EU member States. At the end of that analysis, it came to the conclusion that Article 54 created

obligations for the UK and that the UK owed these obligations not only to Sweden (the Miculas’ home State)

but to each and every State party to the ICSID Convention (para. 108), therefore also to each and every third (ie non-EU) country which is party to the ICSID Convention.

In other words, the UK Supreme Court came to the clear conclusion that, pursuant to Article 64 of the ICSID Convention, any non-EU member State that is party to the ICSID Convention (eg Australia) would be able to sue the UK before the International Court of Justice for its failure to recognise and enforce the Award pursuant to Article 54 of the ICSID Convention.

What is, therefore, genuinely ‘problematic’ is how AG Emiliou managed to conclude that ‘[t]hat question, despite

its significance, was not addressed in the contested judgment’: the only conceivable explanation is that he must have misapprehended what the Supreme Court was doing when it examined the meaning of ‘obligations owed by’ the UK.

Indeed, AG Emiliou’s criticism seems to consider that Article 54 could create an obligation owed by the UK

to the non-EU member States parties to the ICSID Convention in respect of the Award’s recognition and enforcement without creating a corresponding right to claim the performance of these obligations.

However, this is not possible. The AG referred himself to Article 48 of the International Law Commission’s

Articles on the Responsibility of States for Internationally Wrongful Acts (‘ARSIWA’) (footnotes 99 and 103), according to which even a State other than an injured State is entitled to invoke the responsibility of another

State provided that ‘the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group’ (Article 48(1)(a)). As the UK Supreme Court accepted in paragraph 106 of the contested judgment, Article 54 creates such an obligation for the protection of a collective interest, namely

the creation of a scheme which encourages investment by ensuring that monetary awards will be recognised and

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enforced throughout the Convention States. Non-EU parties to the ICSID Convention could, therefore, demand that the UK complies with the Award in the same way that their courts are required to do so.

The AG’s second supposed ‘problem’ concerns the UK Supreme Court’s view that Article 54 created obligations

owed individually to all Contracting States and he suggests that, in reaching this finding, it over-relied on the Convention’s travaux préparatoires that confirm this finding (paragraphs 107-108).

In points 148-149 of his Opinion, AG Emiliou suggests that the UK Supreme Court applied a standard that was

‘quite low’ in assessing whether Article 54 of the ICSID Convention creates obligations to all Contracting States, pointing out that, while there were many references to international sources in the judgment ‘none of these seems specific or conclusive on the matter’ (paragraph 149). He also suggests that the travaux préparatoires relied upon by

the Supreme Court point only to the existence of ‘an interest of general character by the contracting parties of the ICSID Convention that the agreement is complied with’ (point 149).

As explained above, the Court of Justice is not entitled to second guess the UK Supreme Court’s interpretation

of Article 54 of the ICSID Convention. At the very least, it would have to find that it is so plainly wrong that no bona fide interpreter of Article 54 could have reached that interpretation.

AG Emiliou’s stated concerns fails to meet this standard. While he criticises UK Supreme Court’s reliance on the

travaux préparatoires, the fact remains that this is a valid interpretation method provided by Article 32 VCLT. It is also supplementary in nature. This means that the UK Supreme Court’s analysis of Article 54 of the ICSID

Convention that relies on the ordinary meaning and wording of Article 54 in their context and in the light of the Convention’s object and purpose, would stand even without paragraph 107 of the contested judgment.

Furthermore, it is remarkable that, while AG Emiliou criticises these aspects of the UK Supreme Court’s reasoning, he fails to put forward any element that suggests that Article 54 does not create obligations owed to

all Contracting States to the ICSID Convention. In other words, he does not identify any legal authority that

ought to have guided the UK Supreme Court to a different interpretation of Article 54 of the ICSID Convention. In these circumstances, it is not credible to allege that the UK Supreme Court’s interpretation of Article 54 is ‘problematic’.

More fundamentally, AG Emiliou appears to challenge the finding that Article 54 creates obligations owed to all Contracting States, despite the fact that this proposition is supported by the authorities he cites. Indeed, the Commentary to Article 42 ARSIWA to which he refers in footnote 99 of his Opinion provides that ‘although a

multilateral treaty will characteristically establish a framework of rules applicable to all the States parties, in certain cases its performance in a given situation involves a relationship of a bilateral character between two parties’ (para 8 of the Commentary).

Although AG Emiliou made a big deal out of the distinction between obligations of a collective nature and or

bilateral or reciprocal nature (points 135 et seq), he seems to have lost sight of the fact that multilateral treaties

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normally create obligations that are collective in nature and only exceptionally obligations of bilateral or reciprocal character. The ARISWA Commentary he cites makes the point: a multilateral treaty will ‘characteristically establish

a framework of rules applicable to all the State parties’, namely collective obligations. Only ‘in certain cases’ will it establish obligations that are bilateral in nature. The AG appears to have assumed that Article 54 of the ICSID

Convention, exceptionally, creates obligations that are only bilateral in nature without any evidence or argument to suggest that such is the case.

AG Emiliou was also wrong to assume that the question of whether the ICSID Convention creates collective or

bilateral obligations, as he calls them, is a matter of a high or low standard (point 148). In reality, the standard is

neither high nor low. Each multilateral treaty needs to be examined individually, in accordance with the rules of treaty interpretation laid down in Articles 31 and 32 VCLT, in order to assess whether it establishes collective or bilateral obligations. This the AG did not do, while the Supreme Court manifestly did.

AG Emiliou’s third and last ‘problem’ set out in points 150-157 of his Opinion, raises as a concern about the fact that, in interpreting Article 54 of the ICSID Convention, the UK Supreme Court did not take into account the

fact that the obligations whose breach that gave rise to the Award arose from the Romania-Sweden BIT, and that that Article 8(6) of the BIT also imposed an obligation on Romania to pay the Award. Had the UK Supreme

Court taken the Sweden-Romania BIT into account, it would, in his view, have realized that Article 54 did not create rights in favour of third countries.

This is plainly wrong. The Sweden-Romania BIT, involving only two of the parties to ICSID, and having been

concluded more than thirty years after the ICSID Convention, cannot offer any guidance as to how Article 54 is to be interpreted. Indeed, the suggestion that it might, does not fall with any of the rules of international law that are referred to in Article 31(2)-(3) VCLT. As such, the Supreme Court cannot be criticized for not taking it into account when interpreting Article 54 of the ICSID Convention. Conclusion If AG Emiliou sees Article 54 of the ICSID Convention as operating, in this case, between Sweden and Romania,

it is because his Opinion is premised on the belief that multilateral treaties are bundles of bilateral obligations. The AG is not alone is seeing multilateral treaties as bundles of bilateral obligations. The Court assumed that a

multilateral treaty such as the ECT is a bundle of bilateral obligations (Republic of Moldova, C-741/19, para. 64)

and to do so without any reasoning or analysis of the ECT and its travaux préparatoires pursuant to the VCLT which, in fact point to the opposite conclusion (see my analysis here, at pp. 14-15 and 25-27).

The same applies to the ICSID Convention. For the reasons given by the UK Supreme Court (para. 107 of the contested judgment), its travaux préparatoires do not support that idea that the Convention was intended to create a bundle of bilateral obligations. The AG was too fast in dismissing them given that they form part of the appropriate manner in which treaties must be interpreted (Article 32 VCLT).

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The fact is that each treaty needs to be examined individually in order to establish whether it creates collective

obligations or bundles of bilateral obligations. It is hoped that the Court will come to acknowledge that this question is one of treaty interpretation that has to be performed in accordance with the VCLT rules, even when establishing the meaning of a treaty as a fact for the purpose of applying Article 351 TFEU. Paschalis Paschalidis is Associate Professor of Public Law at University Lyon III ‘Jean Moulin’.

SUGGESTED CITATION: Paschalidis, P.; “A critique of AG Emiliou’s Opinion in Commission v UK (C-516/22) regarding Article 351 TFEU”, EU Law Live, 07/12/2023, https://eulawlive.com/op-ed-a-critique-of-ag-emilious-opinion-in-commission-v-uk-c-516-22-regarding-article-351-tfeu-bypaschalis-paschalidis/

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Standards for Granting Refugee Status to Family Members – Case C-374/22 Giulia Raimondo Background The case C-374/22 involves a Guinean national, XXX, who is the father of two minor refugee children born

in Belgium. XXX sought international protection in Belgium, claiming a derived right as the father of refugee children. However, his application was rejected as inadmissible. Against this decision, XXX brought an action

before the Conseil du contentieux des étrangers (CCE), which hearing an appeal against that decision revolving around the interpretation of Directive 2011/95/EU (Qualifications Directive), decided to stay the proceedings and refer the case to the Court of Justice of the European Union for a preliminary ruling.

The questions referred to the Court revolve around the correct interpretation of Article 2(j) and Article 23 of the Qualifications Directive. Article 2(j) defines ‘family members’ as individuals present in the same Member

State in relation to the application for international protection, including the spouse, unmarried partner, minor children, and the father, mother, or another adult responsible for the beneficiary when the beneficiary is minor

and unmarried. This definition is valid in so far as the family already existed in the country of origin, therefore

before departure. In turn, Article 23 addresses the issue of family unity and stipulates that family members who

do not individually qualify for international protection are entitled to certain benefits enumerated in the Directive, most notably a residence permit, travel documents, access to education as well as social welfare and healthcare (see Articles 24-35).

XXX maintains that, as the father of refugee children in Belgium, he has the right to obtain international

protection as a ‘family member’ under Article 23(2) of the Qualifications Directive, read in conjunction with

Article 2(j) thereof. The CCE opposes that the same Directive does not foresee an obligation for Member States to grant international protection if the person concerned does not individually qualify. The key issue is whether

Article 23 applies to XXX, given that his family did not exist in his country of origin but was formed in Belgium. Before delving into the Court’s ruling, it is worth mentioning that this question arises in an evolving national

context. Until 2018, the General Commissariat for Refugees and Stateless Persons automatically granted the

parent of a refugee child a derived protection status, irrespective of any consideration relating to the existence,

on the part of that parent, of the requirements necessary for the granting of international protection. In 2019, this practice was discontinued. Currently, the parents of a refugee who have been denied international protection because they are not individually entitled to it must submit an application for regularisation on humanitarian

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grounds based on Article 9bis of the Belgian 1980 Law on access to land, residence, establishment and removal of

foreigners (AG Opinion, paras 10 and 19). According to the applicant in the main proceedings, such a common law procedure would be subject to its own eligibility conditions and would offer limited procedural guarantees. The Judgement The judgment underscores the distinction between individual eligibility for international protection and the

derived rights of family members. The Court of Justice ruled that Article 23 of Directive 2011/95 does not require Member States to grant the parent of a child with refugee status the right to international protection in

that Member State. Article 23 of the Qualifications Directive merely requires the Member States to amend their national laws so that those family members are entitled to certain benefits (including a residence permit, access to employment or education) which are intended to maintain family unity.

In this case, the father’s claim for international protection could not be based on the refugee status of his children

alone. Instead, the court seems to suggest that the applicant should have sought a specific benefit from those listed under Articles 24 to 35 of the Qualification Directive. Namely, XXX should have applied for a residence permit based on Article 23(2) of that Directive and on the applicable national provisions.

The Court emphasised that EU law does not provide for the extension of refugee status to family members who do not individually meet the conditions for such status (para. 19). Concomitantly, it clarified that Member States

may grant refugee status to family members to maintain family unity under more favourable national provisions

than those included in the Qualification Directive (Article 3). Yet, this remains an option for Member States and is subject to compatibility with the Directive (para. 21).

As highlighted by the current changes in Belgian State practice, although there is an internationally protected

right to marry and form a family (Article 23 ICCPR, Article 12 ECHR, Article 9, CFR) whose unity states must ensure (see eg CCPR General comment No. 19, para 5), not least in light of the best interest of the children which

might be involved (Article 3 CRC, recitals 18, 19 and 38 Directive 2011/95), refugees’ family unity in the country

of asylum, if the family relation was established after the recognition of the refugee status, is often perceived as a generous and discretionary practice (see generally here).

In this context, the Court did not consider whether the best interest of the child would support a more generous application of Article 23 read in conjunction with Article 2, or whether it would support the application for a residence permit under the Qualification Directive. The decision affirms the principle that family members must

individually qualify for international protection, and any extension of such rights is subject to the discretion of

Member States. The Court’s emphasis on the absence of a right to international protection for the parent, despite the children’s refugee status, reflects a strict interpretation of EU asylum law.

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Concluding Remarks The judgment stresses the importance of complying with the specific criteria outlined in the Qualification Directive and reinforces the discretionary nature of more favourable national provisions. Ultimately, this ruling

highlights the need for a nuanced approach to family-related aspects within the framework of refugee status in the European Union.

Giulia Raimondo is Postdoctoral Researcher at the Faculty of Law, Economics and Finance of the University of Luxembourg

SUGGESTED CITATION: Raimondo, G; “Standards for Granting Refugee Status to Family Members – Case C-374/22”, EU Law Live, 08/12/2023, https://eulawlive.com/analysis-standards-for-granting-refugee-status-to-family-members-case-c-374-22-by-giulia-raimondo/

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The Court of Justice of the European Union upholds the fine imposed on Altice for gun jumping Camila Sánchez On 9 November 2023, the Court of Justice upheld the judgment of the General Court and confirmed that Altice

gun-jumped the acquisition of PT Portugal (Case C-746/21 P, Altice Group Lux v Commission). The Court of Justice affirmed the fine imposed by the European Commission on Altice for breaching the standstill obligation

and failing to notify the acquisition. However, the Court of Justice lowered the fine for failure to notify by €3.1 million.

Background On 9 December 2014, Altice, a telecommunications company based in the Netherlands, agreed to acquire PT Portugal, a major telecommunications operator in Portugal. Altice entered into a share purchase agreement (SPA)

with the Brazilian telecommunications operator Oi SA. The SPA provided that Altice would acquire sole control

of PT Portugal. Given that the acquisition required authorisation from the European Commission (Commission), the SPA included specific provisions governing the management of PT Portugal from the date of SPA signing until the transaction’s closure following approval by the Commission.

On 25 February 2015, Altice notified the operation to the Commission. On 20 April 2015, the Commission

adopted the clearance decision, contingent on Altice divesting its existing Portuguese subsidiaries, Cabovisão and ONI. Altice complied with this condition and divested the subsidiaries by September 2015.

The Commission learned from the press that Altice and PT Portugal had held a meeting between their executives prior to the Commission’s clearance decision. Following several requests for information, on 17 May 2017, the

Commission sent a statement of objections concluding, on a preliminary basis, that Altice had infringed the standstill obligation laid down in Article 4(1) and Article 7(1) of Merger Regulation 139/2004. European Commission decision On 24 April 2018, the Commission found that Altice ‘had had the possibility of exercising decisive influence or

had exercised control over PT Portugal prior to the adoption of the clearance decision and, in some instances, prior to notification, in breach of Article 7(1) and Article 4(1) respectively’ Altice Group Lux (C-746/21 P, para 26).

On the decision, the Commission concluded that Altice had implemented the SPA before the clearance decision based on the following:

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• Specific clauses of the SPA gave Altice the right to veto decisions regarding PT Portugal’s commercial policy. • Altice was involved in the day-to-day running of PT Portugal. In particular, the Commission found that Altice had exercised a decisive influence over the business of PT Portugal in seven instances, and the companies exchanged sensitive information.

• The terms of the SPA constituted implementation of the SPA before the Commission declared the transaction compatible with the internal market.

The Commission found that Altice had ‘at least negligently’ implemented a concentration before its clearance and

before its notification. Consequently, the Commission imposed two fines on Altice, each in the sum of €62.25 million.

The General Court judgment Altice brought an action primarily seeking the annulment of the Commission’s decision or a reduction in the fines

imposed (Case T-425/18). On its appeal, Altice claimed that the imposition of two fines by the Commission

infringed the principle ne bis in idem and the principle of proportionality. The General Court rejected this claim, clarifying that the two provisions of the Merger Regulation pursue two autonomous objectives. Article 4(1) imposes a positive obligation on merging parties to notify transactions before implementation, constituting an

instantaneous infringement. On the other hand, Article 7(1) lays down an obligation not to act, a continuous infringement by prohibiting implementation before notification or authorisation.

Altice contended that the pre-closing covenants in the SPA were ancillary and did not constitute early

implementation. Consequently, it had no decisive influence over PT Portugal before the transaction closed. Moreover, Altice claimed that the contested decision contains an error of fact and law as regards the exchange of information and the conclusion that Altice acquired sole control of PT Portugal.

The General Court found that the pre-closing covenants gave Altice a right to veto certain decisions of PT Portugal. For example, veto rights over the appointment or dismissal to the terms of employment of any officer or director, pricing policies, and entering, terminating, or modifying certain types of contracts. The General Court concurred with the Commission, affirming that the veto rights went beyond what was necessary to preserve the

value of the target’s business until the transaction’s closing and conferred decisive influence on Altice over PT Portugal.

In addition, the General Court noted that the parties exchanged competitively sensitive information before signing the SPA and receiving the clearance decision. In particular, the executives of Altice and the target held

meetings intended to coordinate key decisions. At those meetings, PT Portugal provided Altice with detailed, precise information on strategy and commercial objectives. PT Portugal also provided Altice with information

on future pricing strategies for customers. Therefore, the General Court agreed with the Commission that the information exchanges contributed to demonstrating that Altice had exercised decisive influence over the target. www.eulawlive.com

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On 22 September 2021, the General Court largely upheld the Commission’s decision but reduced the original

fine by 10%, as Altice had taken steps to inform the Commission of the concentration before the SPA was signed. The judgment of the Court of Justice On its appeal, Altice argued that the General Court had mistakenly found that Article 4(1) and Article 7(1) pursue ‘autonomous objectives’. According to Altice, those provisions are redundant and protect a single legal

interest. Moreover, it argued that the General Court was wrong in finding that the cumulative imposition of two fines did not infringe the principle of proportionality and double punishment.

The Court of Justice dismissed these arguments and confirmed that the notification and standstill obligations are two separate infringements that can lead to different fines. In addition, the Court of Justice reiterated the

holding of the General Court, stating that the imposition of two penalties for the same conduct by the same

authority in a single decision cannot be contrary to the principle of proportionality. According to the Court of Justice, the fines imposed are below the limit of 10% of the aggregate turnover of the parties, and having regard

to the nature, gravity and duration of each infringement is appropriate for ensuring the effectiveness of the

control of concentrations with a community dimension. Likewise, the Court of Justice dismissed the arguments of Altice concerning the violation of the prohibition of double punishment as that principle does not prevent the imposition of two fines because of an infringement, by the same conduct, of Article 4(1) and Article 7(1).

Altice further contests the interpretation of the General Court of the concept of ‘implementation’ of a concentration and its application to the pre-closing covenants. The Court of Justice explains that the ‘implementation’ of

a concentration, within the meaning of Article 7, arises as soon as the parties to a concentration implement operations, contributing to a lasting change in the control of the target undertaking. In that respect, the preclosing covenants conferred Altice the possibility of exercising decisive influence over PT Portugal by obliging Oi

SA to obtain Altice’s written consent to modify a wide range of contracts and therefore allowing it to determine PT Portugal’s commercial policy, without it being established that it was necessary to protect the value of PT Portugal.

Last, as regards the assessment of the fines, the Court of Justice determined that account must be taken of the

fact that Altice, of its initiative, informed the Commission of the concentration well before the SPA was signed

and sent the Commission a request for the allocation of a case-handling team three days after that signature. Accordingly, the Court of Justice notes that in those circumstances, a fair assessment of the case will be made by

setting the amount of the fine imposed on Altice for the infringement of Article 4(1) at €52.9 million. The Court of Justice states that, in the light of the nature, gravity and duration of the infringement, the amount is sufficiently dissuasive.

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Camila Sánchez is an antitrust and competition lawyer with experience working in Europe and Latin America. The views presented in this article are issued in the author’s capacity and do not reflect the opinions of any organisation with which the author is associated.

SUGGESTED CITATION: Sánchez, C.; “The Court of Justice of the European Union upholds the fine imposed on Altice for gun jumping”, EU Law Live, 07/12/2023, https://eulawlive.com/analysis-the-court-of-justice-of-the-european-union-upholds-the-fine-imposed-on-altice-for-gun-jumping-bycamila-sanchez/

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A winegrower can use the term ‘wine-growing estate’ for wine produced from grapes pressed at the facilities of another winegrower Erriketi Tla da Silva On 23 November 2023 the Court of Justice rendered its judgement on Case C-354/22. The case is a preliminary

reference seeking clarifications on the terms that can be used to refer to a holding as indications for grapevine products and more specifically on the interpretation of the second subparagraph of Article 54(1) of Commission

Delegated Regulation (EU) 2019/33 of 17 October 2018 supplementing Regulation (EU) No 1308/2013 of

the European Parliament and of the Council as regards applications for protection of designations of origin,

geographical indications and traditional terms in the wine sector, the objection procedure, restrictions of use, amendments to product specifications, cancellation of protection, and labelling and presentation (‘Delegated Regulation 2019/33’). Background Weingut A, a German winegrower, concluded a contract with winegrower B providing for a lease of a vineyard, where grapes would be cultivated as per Weingut A’s instructions. Additionally, Weingut A leased a winepress facility from winegrower B for 24 hours annually for the exclusive pressing of grapes from the leased vineyards in accordance with Weingut A’s oenological practices.

The rejection of Weignut A’s application to use the labels ‘wine-growing estate’ and ‘bottled at the estate’ as

indications for his holding by the German ‘Land’ of Rhineland-Palatinate, resulted in a dispute before the Federal Administrative Court of Germany which gave rise to a preliminary reference before the Court of Justice for the interpretation of the second subparagraph of Article 54(1) of Delegated Regulation 2019/33. According to this

provision, terms referring to a holding, such as the ones in question, are to be used only if the grapevine product

is made solely from grapes harvested within the holding’s vineyards and if the entire winemaking process is conducted on that holding.

The central issues revolve around two main points: whether the temporary and exclusive use of a pressing facility by the eponymous winegrowing holding under a lease with another holding prevents considering winemaking as fully conducted by the eponymous holding.

whether winemaking can be deemed entirely conducted at the eponymous holding only if the pressing of grapes is done by the holding’s staff or if it can be performed by the staff of the lessor holding, with the latter staff being authorised to intervene in case of unexpected issues. The referring Court also inquired about the impact of the fact

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that the lessor holding had its own interest in the pressing process, as evidenced by a contractual clause related to a price supplement tied to yield and quality per hectolitre of wine. The Court’s judgment Regarding the first point, the Court firstly pointed out that in light of a lack of definition of the term ‘holding’ in Article 54(1) of Delegated Regulation 2019/33, it constitutes an autonomous concept of EU Law, which must

be uniformly interpreted across the EU, considering the provision’s wording, context, and objectives. The Court clarified that while Regulation No 1308/2013 does not define ‘holding’, it points to Article 4 of Regulation No

1307/2013, according to which a ‘holding’ includes all units used for agricultural activities managed by a farmer within the same Member State, without requiring ownership of the facilities. The concept of ‘management’ does

not demand unlimited power over the area, but sufficient autonomy for agricultural activity and thus, the notion

of ‘holding’ can be extended to leased vineyards. Regarding the term ‘bottled by the producer’, which signifies that the producer and the entity conducting the bottling are identical, the Court emphasised that the producer must perform the bottling at their vineyard or under conditions ensuring the same guarantees.

The Court sided with the Opinion of AG Campos Sánchez-Bordona and concluded that according to Article 54(1) of Delegated Regulation 2019/33, there is no requirement for the cultivation, harvesting, and pressing of

grapes to occur on the land owned by the winegrower. However, for these tasks, given that the objective of optional indications for a holding is to assure consumers that key winemaking stages are under the actual management and exclusive responsibility of the winegrower, it is crucial that the owner of the holding actively manages the entire

operation. Therefore, pressing can be considered as conducted by the winegrowing holding, even if it occurs at a

leased press provided that the press is exclusively available to the lessee holding for the duration of the operation. Regarding the second point, the Court firstly stated that the wording of the second subparagraph of Article 54(1) of Delegated Regulation 2019/33 does not specify any requirement regarding the connection between the

eponymous winegrowing holding and the staff conducting grape pressing. The Court reminded that this provision

aims to ensure that consumers are informed about the superior quality of the wine guaranteed by a specific

indication and are not misled about the identity of those responsible for winemaking. For this requirement to be met, the wine production should be under the direct, continuous supervision and exclusive responsibility of the eponymous winegrowing holding. Thus, in cases of unexpected issues, only the eponymous winegrower or their

staff can make immediate decisions. In addition, the Court pointed out that any interest of the lessor holding, such as a price supplement based on yield and quality, does not affect whether winemaking is considered as entirely conducted at the eponymous winegrowing holding. Conclusion To conclude, the judgment provides essential guidance regarding the indications to refer to grapevine products and more specifically clarifies that the term ‘wine growing estate’ can be used by a holding active in wine production even if the grapes have been pressed in a leased vineyard.

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Erriketi Tla da Silva is a PhD candidate in Wageningen University and an Academic Assistant at the College of Europe. She holds an LL.M. in European Legal Studies from the College of Europe as well as an LL.M. in Environmental Law from the National and Kapodistrian University of Athens. She is a qualified lawyer, registered in the Athens Bar Association.

SUGGESTED CITATION: da Silva, E; “A winegrower can use the term ‘wine-growing estate’ for wine produced from grapes pressed at the facilities of another winegrower”, EU Law Live, 04/12/2023, https://eulawlive.com/analysis-a-winegrower-can-use-the-term-wine-growing-estate-for-wineproduced-from-grapes-pressed-at-the-facilities-of-another-winegrower-by-erriketi-tla-da-silva/

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THE LONG READ

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A truly responsible lending: patching or rearranging consumer credit law?

Comments on the new Directive on consumer credits (CCD II) Dominik Dworniczak 1 On 9th October 2023,2 the Council of the European Union approved a new Directive on consumer credits (“CCD

II”)3 repealing the current Directive on credit agreements for consumers from 2008 (“CCD I”).4 The new directive will enter into force on the twentieth day following its publication.

The CCD II introduces some awaited changes, including more extensive transparency requirements towards creditors, more thorough and comprehensive creditworthiness assessment or new ground principles of business

conduct on the consumer credit market. But the new directive falls short in other areas. It does not address issues such as sustainable development on the internal market and effective national enforcement of EU law.

The commentary is centred on two themes. The first one is about the most essential changes the new Directive on consumer credits brings (patching). They are analysed and then evaluated with references to the topical scholarly

literature. The second theme, in contrast, is about changes the new directive does not bring (rearranging). In this part, it is argued that while the CCD II introduces many essential changes, it does not rearrange European

consumer credit law in such a way that it is consistent with some EU law principles. To elaborate the argument

further, the concept of truly responsible lending is defined in relation to the concept of responsible lending.5 The last two sections summarise how the new directive fulfils its objectives and what is missing. It is also indicated what role the Court of Justice can have in the future litigation on the basis of the CCD II.

1. Dominik Dworniczak is a PhD Researcher in Law at the European University Institute (Florence, Italy). His research interests include European private law, consumer protection, contract law, tort law and legal history. E-mail: Dominik.Dworniczak@eui.eu. 2. Council of the EU, ‘Asking for a loan will be safer in the EU after the Council’s final approval of the Consumer Credit Directive’, Press Release, 9 October 2023. 3. Directive (EU) 2023/2225 of the European Parliament and of the Council of 18 October 2023 on credit agreements for consumers and repealing Directive 2008/48/EC, OJ L 2225. 4. Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC, OJ L 133, p. 66. 5. Olha O. Cherednychenko, ‘The proposal for a new EU Consumer Credit Directive: towards responsible lending in the digital age?’, 3-4 Law and Financial Markets 15, 2021, pp. 183-206.

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Patching European consumer credit law In the following sections, selected changes brought by the CCD II are presented and clarified. At the end, it

is critically assessed whether the new legislation will serve its very objective, namely achieving high level of consumer protection and improving the internal market for consumer credits.6 I. Extending the scope The scope of the CCD II has been widened in comparison to the CCD I. The new directive will now also apply to credit agreements below €200, as well as buy-now-pay-later services (“BNPL”) and unsecured credit agreements above €100 000 with the purpose of the renovation of a residential immovable property.7 Moreover, the CCD II aims to establish some rules for credits granted through crowdfunding credit services. This is, however, not explicitly mentioned in the provisions of the new directive, but merely in its preamble.8 II. Adapting consumer credit to the digital environment The new directive adapts European consumer credit law to the digital environment. Above all, the Member States

(“MS”) will now be obliged to require from creditors and intermediaries to inform consumers in a clear and comprehensible manner when they are presented with an offer presented on the basis of automated processing of personal data.9 The pre-contractual information sheets and the credit agreement will now, as far as their form

is concerned, be consistent and clearly legible taking into account the ‘technical constraints’ of the medium (e.g., mobile phones) on which it is displayed and the interoperability of the devices.10 Within the framework of the creditworthiness assessment involving the use of automated processing of personal data, the consumer will have a right to request and obtain human intervention that would consist of explaining the assessment and that would enable the consumer to express her own point of view.11

III. Extending the transparency requirements and introducing ground principles of business conduct The new directive introduces more extensive transparency obligations towards the creditors in comparison to the CCD I. The catalogue of pre-contractual information has been broadened12 and the concept of ‘adequate

6. Recitals 10-12 CCD II. 7. Article 2(1) CCD II and a contrario Article 2(2) CCD II. When it comes to the credit agreements below 200 euros (Recital 15 of the Preamble), BNPL (Recitals 16-17) and the unsecured credit agreements for the renovation of the immovable property (Recital 25). 8. Recitals 22, 81, 93 as interpreted together with Article 2(1) CCD II. In the draft proposed by the Commission this type of credit agreements was directly mentioned in the provisions, see Article 2(1) of the Proposal for a Directive of the European Parliament and of the Council on consumer credits, COM/2021/347 final. 9. Article 13 CCD II. 10. Articles 10-11 and 21 CCD II. 11. Article 18 (8) CCD II. 12. Articles 10-11 CCD II. Compare with Articles 5-6 of the Directive 2008/48.

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explanations’ further specified and placed in a separate provision.13 The scope of information in the credit

agreement, similarly to the pre-contractual information, has also been extended.14

A novelty are the requirements towards the creditors’ staff. First of all, the staff should act honestly, fairly, transparently, and professionally, taking account of the rights and interest of the consumers.15 The rules of

enumeration should not impede with the possible compliance with these obligations. Moreover, the CCD II will now require the staff to possess and keep up to date an appropriate level of knowledge and competence in relation to the services provided.16

IV. Advancing responsible lending (and responsible intermediaries) The CCD II further specifies and extends the lenders’ obligations within the framework of creditworthiness assessment (responsible lending). Now, the consumer’s creditworthiness will be assessed in accordance with the

interest of the consumer, to prevent irresponsible lending practices and over-indebtedness. The creditors will also

take into account factors relevant to meet consumer’s obligations under the credit agreement. For this, the CCD II specifies the list of documents on which basis the creditworthiness should be assessed. The general rule will now

be: credit will be made available only if there is probability that the consumer will meet her obligations under the credit agreement.17

The new directive will also require the MS to ensure that credit intermediaries disclose and indicate additional information regarding their professional activities, such as the fees payable by the consumer to the credit intermediary for the services provided and whether they work exclusively with one or more creditors or as an independent intermediary.18

V. Promoting responsible borrowing Another novelty is that the MS will now be responsible for promoting measures supporting the financial education

of consumers (responsible borrowing). They will do so, for instance, by disseminating information about the guidance that consumer organisations and national authorities may provide to consumers. But the Commission will not

remain passive; it is expected to publish a report on the financial education in the MS and identify the examples of best practices that could be further developed to increase the financial awareness of consumers.19

In addition to this, the MS will ensure that independent advisory services are readily available and easily accessible to consumers who encounter (or might encounter) difficulties in repaying their credits. If a credit application

13. Article 12 CCD II. Compare with Article 5(6) of the Directive 2008/48. 14. Article 21 CCD II. Compare with Article 10 of the Directive 2008/48. 15. Article 32 CCD II. 16. Article 33 CCD II. 17. Article 18 CCD II. 18. Article 38 CCD II, in particular Article 38 (a)-(b) CCD II. 19. Article 34 CCD II.

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is rejected, the creditor will now be required to refer the consumer to easily accessible debt advisor services.20

Similar to the financial education, the Commission is expected to present a report providing an overview of the availability of debt advisory services and the best practices for their further development.21 Patching the consumer credit legislation The new Directive on consumer credits introduces many awaited changes.22 Its scope has been significantly

broadened in comparison to the CCD I,23 thus contributing to providing broader and more versatile protection

of consumers on the credit markets. Yet, there are doubts about the way in which the CCD II addresses credits granted with the help of crowdfunding services. It has already been criticised for the lack of comprehensive regulation and not considering peculiar characteristics of this type of credit agreements.24

A strong advantage of the new directive is that it adapts consumer credit law to the digital environment, in particular

when it comes to the form of documents and the automated processing of personal data. This corresponds to some of the concerns raised in the literature,25 as well as in the New Consumer Agenda of the Commission.26

The transparency requirements for both pre-contractual and contractual information have also been expanded. Even though one could doubt in the ability of consumers to always fully comprehend information they are

presented,27 the CCD II introduces a dual transparency approach to tackle this issue. On the one hand, the

creditors will be required to provide adequate explanation and conduct their business in a fair and transparent manner, mirroring the obligation from the Directive on markets in financial instruments (“MiFID II”).28 On

the other hand, the MS (together with the Commission) will contribute to raising the financial awareness of

consumers, recognising the need for more informed and conscious consumers, another concern raised in the New Consumer Agenda.29 This all will be complemented by embracing, in comparison to the old Consumer Credit Directive,30 responsible lending through the creditworthiness assessment. This issue had been raised in the

literature,31 had appeared in the Court of Justice’s case law32 and had been conceptualised in the Mortgage Credit

Directive from 2014,33 before the CCD II was drafted by the Commission. 20. Article 18(9) CCD II. 21. Article 36 CCD II.

22. On the need of the reform of the old consumer credit framework, see Olha O. Cherednychenko, Jesse M. Meindertsma, ‘Irresponsible Lending in the Post-Crisis Era: Is the EU Consumer Credit Directive Fit for Its Purpose’, Journal of Consumer Policy 42, 2019. 23. Compare Article 2(1)-(2) of the Directive 2008/48 and Article 2(1)-(2) CCD II. 24. Filippo Morello, ‘From Consumer Credit to Consumer Credits? Merits and Flaws of the 2008/48/EC Directive’s Reform Proposal’, 4 European Review of Private Law 31, 2023, pp. 862-864. 25. Cherednychenko, ‘The proposal for…’, p. 189. 26. European Commission, ‘New Consumer Agenda – Strengthening consumer resilience for sustainable recovery’, 13 November 2020, pp. 12-13. 27. In particular, see Oren Bar-Gill and Elizabeth Warren, ‘Making Credit Safer’, 1 University of Pennsylvania Law Review 15, 2008, pp. 27-44. 28. Morello, ‘From Consumer Credit…’, pp. 857-858. 29. In the document, there is even a direct reference to behavioural economics. European Commission, ‘New Consumer Agenda…’, pp. 17-18. 30. Compare Article 8 of the Directive 2008/48 with Article 18 CCD II. 31. Cherednychenko and Meindertsma, ‘Irresponsible Lending…’, pp. 485-490. 32. Judgment of the Court of Justice of 6 June 2019, Schyns (C‑58/18, EU:C:2019:467, paras 45-47). 33. Articles 18-20 of Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010, OJ L 060, p. 34.

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All in all, the new Directive on consumer credits patches the legislation (the CCD I) according to the new

challenges on the market and the concerns raised in the literature. It is likely to give a new impetus in providing more adequate and better tailored information to consumers and in promoting, not just assuming, a model of risk-aware financial consumers. Time will tell whether this all will effectively contribute to responsible lending on the side of creditors and responsible borrowing on the side of consumers. What is apparent at the moment is that the CCD II does not rearrange European consumer credit law, it merely patches it.

Rearranging European consumer credit law? If responsible lending requires that the lender assesses, prior to concluding a credit agreement, that the borrower will meet her obligations and that it will be done without ‘incurring under financial hardship’,34 then a truly

responsible lending would require more than this. In other words, it would require that the consumer credit

legislation fits well with other EU law principles than achieving high level of consumer protection as well as with other policies than the ones making the credit more available and secure to consumers. But this could mean

abandoning the sectoral rationale of European private law,35 towards its systematic rearrangement. The CCD II, therefore, symbolises a chance for such a rearrangement in favour of truly responsible lending. The question is whether it succeeds.

This part starts with a ‘teaser’ regarding the non-discrimination principle and EU competences, followed by

examination of if and how the new directive contributes to realising the principles of sustainable development

and effective enforcement of EU law at the national level. At the end, I will come to back to the concept of truly responsible lending to assess whether the CCD II introduces it. Teaser: non-discrimination and EU competences The new directive, in contrast to its predecessor, makes one explicit reference to the EU law principles: it obliges the MS to ensure that the conditions to be fulfilled for being granted a credit do not discriminate against consumers

legally resident in the EU on the ground of their nationality, place of residence or any ground referred to in

Article 21 of the Charter.36 The CCD II reaffirms the principle of non-discrimination from primary law and…

that would be all. It does not offer a new perspective on consumer credit that would better align with other EU principles than its predecessor. But is it because the EU lacks the competence?

The competence of the EU to legislate in the area of consumer credit is derived from Art. 114 TFEU concerning the objective of achieving internal market together with Art. 169 TFEU stating that the Union contributes to

the attainment of high level of consumer protection and Article 38 of the Charter providing that Union policies

34. Cherednychenko, ‘The proposal for…’, p. 194. 35. Hans-W. Micklitz, ‘European European Regulatory and Private Law - Between Neoclassical Elegance and Postmodern Pastiche’, 2021, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3753712, pp. 10-11. 36. Article 6 CCD II.

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are to ensure a high level of consumer protection.37 Nothing is, however, mentioned in the preamble to the

CCD II that the completion of internal market is also conditioned by the principles enshrined in Art. 3 TEU, namely that internal market should work for, among others, the sustainable development based on a high level of protection and improvement of the quality of the environment.38 The answer to the question posed at the end

of the previous paragraph is thus straightforward: the EU does not lack the competence to align the legislation

aiming at improving internal market with the principle of sustainable development. The CCD II seems, however, indifferent, except the non-discrimination principle, to other EU law principles not explicitly related to high level of consumer protection. Yet is it (just) a matter of principles? Green transition and consumer credit It is not just a matter of principles, but also of policies aiming at their realisation. It is thus essential to examine how the CCD II stands in relation to them. Two policies of the Commission have been selected: the European

Green Deal and the New Agenda for Consumers. At the outset, they are outlined and then their objectives are compared with the changes the CCD II does and does not bring.

European Green Deal was adopted by the Commission in 2019. It aims at overcoming climate challenge and environmental degradation and transforming the EU into a resource-efficient and competitive economy.39 To this

effect, the Commission has been advocating the changes on the internal market by recently proposing a regulation establishing a framework for setting ecodesign requirements for sustainable products,40 a directive to prevent the green-washing and provide consumers more clarity on the misleading environmental claims,41 or a directive on

common rules promoting the repair of goods.42 The financial markets has also been affected. For instance, the

Commission proposed introducing a common European green bonds standard.43 Two complementary regulations regarding disclosure duties have already come into force: one concerning corporate sustainability reporting44 and another one ESG benchmarking.45

Another policy, the New Consumer Agenda, was adopted in 2020. The Commission made it clear that green transition is one of five key priority areas in consumer law. The challenge, according to the Commission, would 37. See Recitals 9-12 CCD II. 38. A similar principle regarding the Union policies is enshrined in Art. 37 of the Charter. 39. More on the European Green Deal, see https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/european-green-deal_en (accessed: 1910-2023). 40. Proposal for a Regulation of the European Parliament and of the Council establishing a framework for setting ecodesign requirements for sustainable products and repealing Directive 2009/125/EC. 41. Proposal for a Directive of the European Parliament and of the Council on substantiation and communication of explicit environmental claims (Green Claims Directive). 42. Proposal for a Directive of the European Parliament and of the Council on common rules promoting the repair of goods and amending Regulation (EU) 2017/2394, Directives (EU) 2019/771 and (EU) 2020/1828. 43. Proposal for a Regulation of the European Parliament and of the Council on European green bonds. 44. Directive (EU) 2022/2464 of the European Parliament and of the Council of 14 December 2022 amending Regulation (EU) No 537/2014, Directive 2004/109/EC, Directive 2006/43/EC and Directive 2013/34/EU, as regards corporate sustainability reporting, OJ L 322, p. 15–80. 45. Regulation (EU) 2019/2089 of the European Parliament and of the Council of 27 November 2019 amending Regulation (EU) 2016/1011 as regards EU Climate Transition Benchmarks, EU Paris-aligned Benchmarks and sustainability-related disclosures for benchmarks, OJ L 317, p. 17–27.

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consist of unlocking the potential of consumers contributing personally to green transition ‘through measures that empower, support and enable every consumer, regardless of their financial situation, to play an active role in the green transition (…). Access to sustainable products should not be dependent on the level of income or where you live, but should be available to everyone.’46 The question arises at this point – how does the new Directive on

consumer credits align with the principles on the sustainable development and the two policies aimed at realizing it?

The CCD II does not align with them. The environmental concerns are neither mentioned in the text of the

directive, nor in its preamble. Yet, Buy Now, Pay Later (BNPL) services, linked and revolving credit agreements, not to mention ‘ordinary’ credit agreements, are strongly intertwined with the choices consumers make on the market, regarding the products and services they choose.47 The instruments provided for by the new directive

do not offer more than responsible lending understood as tailored to the financial capabilities and the needs of consumer at stake, whatever these needs would be. The adequate information provided by the creditors, the high level of knowledge and fair conduct of business do not relate, for instance, to the reparability of products

purchased or environmental impact of services provided within the framework of linked credit agreements. On the top of that, the BNPL services encourage even higher volume of consumption but nothing is mentioned

about compensating the consequences it could potentially have on the environment.48 The lenders are also not

required to engage in the promotion (or, at least, nudging) of sustainable consumption, even though many of them would be required to report it according to the new CSR Regulation.

The new consumer credit directive will not contribute to the achievement of sustainable internal market. It will not direct consumers towards a truly responsible (also environmentally conscious) borrowing and creditors

towards a truly responsible lending, in other words: it will not align consumerism (underpinned by lending) with sustainability. It will, however, contribute to achieving higher level of consumer protection and improving the

market for consumer credits by patching the legislation. But, at the end of the day, does it even patch it effectively? Effective enforcement at the bottom The CCD II does not provide a comprehensive system of enforcement based on the experiences with its predecessor. First of all, the new directive envisages that the penalties provided for shall be ‘effective, proportionate

and dissuasive’ following the exact wording of Article 23 of the CCD I.49 There is no further elaboration on what

kind of penalties a MS should introduce in the event of the lack or incomplete assessment of creditworthiness50

as a part of pre-contractual information duty,51 even though this problem has already been tackled at the Court of

46. European Commission, ‘New Consumer Agenda…’, p. 5. 47. Richard Ahlström et al., ‘Affluence and unsustainable consumption levels: The role of consumer credit’, 1 Cleaner and Responsible Consumption, 2020, available: https://www.sciencedirect.com/science/article/pii/S2666784320300036. 48. On the higher volume of consumption, in particular, see Tobias Berg et al., ‘The Economics of “Buy Now, Pay Later”: A Merchant’s Perspective’, 2023, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4448715. 49. Compare Article 23 of the Directive 2008/48 with Article 44 CCD II. 50. Judgment of the Court of Justice of 27 March 2014, LCL Le Crédit Lyonnais (C‑565/12., EU:C:2014:190, para 56). 51. Judgment of the Court of Justice of 5 March 2020, OPR-Finance (C-679/18, EU:C:2020:167, para 47).

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Justice level. The same can be said about the calculation of the Annual Percentage Rate (APR). The CCD II does

not say anything about sanction in the event of an inaccurate APR. This is, however, the reality of some national courts. For instance, in the French Cour de cassation it is a frequently recurring problem.52

Nor has the character of the enforcement been specified. There is no indication whatsoever whether penalties

should have solely public nature, or whether national courts should be allowed, just like in one case before the

Court of Justice,53 to provide for private law penalties. The CCD II envisages for now that the MS have competent

authorities to impose fines on the creditors.54

But is it enough to provide effective enforcement of EU consumer credit law at the bottom, i.e., at the national

level? After all, financial consumers already benefit from the protection granted under the Unfair Contract Terms Directive (“UCTD”) and the Unfair Commercial Practices Directive. It does not mean, however, that

this protection is comprehensive.55 Specifying penalties, like public and private law sanctions, could enhance the

overall efficacity of the new EU consumer credit law at the national level. Failure to do so could be detrimental

to both consumers and to the very objective of improving internal market on consumer credits. On the one

hand, the consumers in some MS will be better protected than in other MS thanks to a more efficient system of enforcement through a mix of public and private law sanctions. On the other hand, the lack of equal enforcement will not only fail to promote a common market in consumer credit but will be counterproductive to the objective of the directive itself, namely, to achieve a high level of consumer protection. It is even more striking knowing that

the problem of underenforcement of the previous directive is recognised in the preamble of the CCD II,56 as well as in the literature.57

A truly responsible lending? It is true that the new Directive on consumer credits introduces necessary changes. It has a broader scope, is

better suited to the digital environment, introduces higher transparency standards than its predecessor, obliges the creditors to fairly conduct business together, develops a comprehensible framework for responsible lending and obliges to MS to promote the financial awareness of consumers. The CCD II patches the European consumer credit law, but it does go beyond it.

If the new directive symbolises a chance for such a rearrangement towards a truly responsible lending, it fails to be one. It does not provide for a more comprehensive framework for consumer credit by addressing other EU law

principles in a systematic manner. It includes the principle of non-discrimination, but it does not mention the

sustainable development. There is even a risk that it will not be properly enforced. Its blurry system of penalties, 52. For example, see L’arrêt de la Cour de cassation, 22 September 2021 (19-25.316, Publié au bulletin). More on the APR litigation in France, see Jean Bruttin, ‘Flux et reflux des recours TEG’, 3 RDI, 2022. 53. Judgment of the Court of Justice of 10 June 2021, Ultimo Portfolio Investment (C-303/20, EU:C:2021:479, paras 31 and 37). 54. Articles 41 and 44 CCD II. 55. Geraint Howells, Christian Twigg-Flesner and Thomas Wilhelmsson, ‘Rethinking EU consumer law’, Routledge, 2017, pp. 333-334. 56. Recitals 3-6 and 79 of the CCD II. 57. Cherednychenko and Meindertsma, ‘Irresponsible Lending…’, pp. 507-511.

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dependent on each MS, is unlikely to work towards achieving the directive’s (limited) objectives. And this is notwithstanding the experiences of some national courts and of the Court of Justice.

The reason for all this may be simple: it is only a sectoral instrument. It does not rearrange European consumer credit law and, therefore, does not provide for a truly responsible lending taking into account the objective of

achieving sustainable internal market and effective enforcement of the regulatory instruments on the ground. By galvanising the sectoral status quo of European consumer law, the new directive either makes false promises without taking the green transition into account, or does not live up to its expectations by not concentrating enough on enforcement at the national level.

Is it just the beginning of the discussion? But maybe that all hope should be vested in the Court of Justice? There could be some objections. First, does the Court have the competence to supplement the CCD II?58 Considering its creative interpretation of EU consumer

legislation over the last decade, it may be the case.59 But even if the CCD II is ‘corrected’, will the national courts

follow the Court? Second, some of the concepts employed in the CCD II are vague, such as adequate information and fair conduct of business. It could constitute a basis to link the informational duties with the principle of sustainable development. But the existence of the vague terms does not mean necessarily that they are going to be

concretised and interpreted together. For instance, the clauses of good faith and significant imbalance from Art. 3(1) UCTD had not been concretised by the Court of Justice up until 2013 even though the directive was adopted in 1993.60 Third, future developments in case law cannot be predicted: these are national courts referring questions

to the Court in the preliminary procedure and each question will depend on the context of a specific case. One cannot also exclude reluctance of national courts in referring questions to the Court.

Perhaps it is a high time to rethink whether the newly adopted CCD II already requires some amendments. Or whether this and perhaps other sectoral regulatory instruments should be systematically reviewed to ensure

the achievement of the EU law principles. At the end of the day, it is also secondary law through which these principles are articulated and specified.

58. Hans-W. Micklitz, ‘The ECJ between the Individual Citizen and the Member States: A plea for a judge-made European law on remedies’, Working Paper, EUI LAW, 2011/15. 59. Betül Kas and Hans-W. Micklitz, ‘Judge-Made European Private Law and European Polity Building’ in: Chantal Mak and Betül Kas (ed.), ‘Civil Courts and the European Polity’, Hart Publishing, 2023. 60. Judgment of the Court of Justice of 14 March 2013, Aziz (C‑415/11, EU:C:2012:700, para 77).

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HIGHLIGHTS OF THE WEEK

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ISSUE Nº6 4-8 DECEMBER 2023

Preliminary reference concerning the cross-border transport of excise goods, published in OJ Monday 4 December

Official publication was made of a request for a preliminary ruling from the Helsinki Administrative Court (Finland), lodged on 26 September 2023, regarding proceedings involving a vendor of excise goods and the Finnish tax authorities: Pohjanri (C-596/23). Read on EU Law Live

Preliminary ruling request concerning the interpretation of EU provisions on interchange fees for cardbased payment transactions, published in OJ Monday 4 December

A preliminary reference from the College van Beroep voor het bedrijfsleven (Netherlands), lodged on 29 August 2023, concerning the consequences of treating a three-party payment card scheme with a co-branding partner as equivalent to a four-party payment card scheme under Regulation 2015/751 on interchange fees for card-based payment transactions: American Express Europe and Others (C-549/23). Read on EU Law Live

Action for annulment concerning public access to documents related to irregularities in the management of allowances by MEPs for accredited parliamentary assistants, published in OJ Monday 4 December

In the case of Kaili v Parliament (Case T-1031/23), Eva Kaili brought an action against the European Parliament concerning the latter’s decision on 31 July 2023, where the Vice-President of the Parliament rejected Kaili’s confirmatory application for public access to documents related to irregularities in the management of allowances by Members of Parliament for accredited parliamentary assistants, in accordance with Regulation (EC) No 1049/2001. Read on EU Law Live

Preliminary ruling request concerning pastiche limits in the context of artistic engagement and sampling, published in OJ Monday 4 December

Official publication was made of a request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 25 September 2023 concerning the interpretation of Article 5(3)(k) of Directive 2001/29/EC and its application to pastiche, specifically in the context of artistic engagement and sampling. Read on EU Law Live

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Court of Justice to clarify the intersection of online advertising platforms and data protection Monday 4 December

Official publication was made of a preliminary ruling request from the Curtea de Apel Cluj (Romania), lodged on 3 August 2023, concerning the responsibility and liabilities of a storage and hosting information service provider in the context of online advertisements containing personal data: Russmedia Digital and Inform Media Press (Case C-492/23). Read on EU Law Live

Council adopts position concerning measures for safer road traffic in the EU Monday 4 December

In a significant move towards enhancing road safety in Europe, the Council approved its common positions on two key components of the ‘road safety’ legislative package proposed by the European Commission, namely rules related to driving licenses and cross-border exchange of information on road-safety-related traffic offenses. Read on EU Law Live

Commission publishes annual report on the application of the Charter of Fundamental Rights Monday 4 December

The European Commission published its annual report on the application of the EU Charter of Fundamental Rights focusing on the recent developments regarding access to justice and detailing the comprehensive legal framework that the EU has put in place to enable fair resolution through legal and judicial means. Read on EU Law Live

Council agrees on framework for cross-border criminal proceedings transfer Monday 4 December

The Council reached a significant milestone in the advancement of EU rules pertaining to the transfer of criminal proceedings between member states aiming to address the complexities arising from criminal acts that impact multiple EU countries. Read on EU Law Live

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The Week

ISSUE Nº6 4-8 DECEMBER 2023

Council and Parliament reach agreement on the Ecodesign Regulation Tuesday 5 December

The Council and the Parliament reached a provisional political agreement on the proposed regulation establishing a framework for setting ecodesign requirements for sustainable products. Read on EU Law Live

EU and Chile strengthen ties with modernized association agreement Tuesday 5 December

The Council approved two decisions to sign the Advanced Framework Agreement (AFA) and the interim Trade Agreement (iTA) with Chile, collectively constituting an enhanced version of the existing EU-Chile Association Agreement. Read on EU Law Live

Court of Auditors’ report highlights declining competition in EU public procurement Tuesday 5 December

A recent report by the European Court of Auditors revealed a concerning trend of diminishing competition for public tenders in the EU over the past decade, with fewer businesses participating in public procurement processes, and authorities increasingly engaging specific companies directly, bypassing open competition. Read on EU Law Live

CPVO: Vacancy positions for Legal Advisors - Intellectual Property and International Relations Tuesday 5 December

The Community Plant Variety Office (CPVO) published a call for expressions of interest intending to establish 2 reserve lists: one for Legal Advisor – Intellectual Property, and one for Legal Advisor - International Relations & CPVR Registry Affairs. Read on EU Law Live

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The Week

ISSUE Nº6 4-8 DECEMBER 2023

Court of Justice validates COVID-19 travel bans and health measures with conditions Tuesday 5 December

The Court of Justice delivered its judgment in NORDIC INFO (C-128/22), a case concerning a preliminary reference by which clarification was sought on whether a general national measure imposing a ban on the entry and exit of Union citizens based on a color code drawn up based on epidemiological data is compatible with the provisions of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States and the provisions of the Schengen Borders Code. Read on EU Law Live

Court of Justice annuls Commission’s decision establishing unlawful State aid resulting from tax rulings issued by the Luxembourg authorities Tuesday 5 December

The Court of Justice delivered its judgments in two cases on appeal, concerning actions by which the appellants sought, in essence, the annulment of the respective judgments of the General Court confirming two sets of tax rulings as ‘selective’ advantage, in light of a Commission’s State aid decision: Luxembourg v Commission (C-451/21 P); Engie Global LNG Holding and Others v Commission (C-454/21 P). Read on EU Law Live

ECtHR: Violation of Article 1 of Protocol No. 7 to the Convention in the case of F.S. v. Croatia Tuesday 5 December

The European Court of Human Rights delivered its judgment in f F.S. v. Croatia, a case revolving around the applicant’s expulsion from Croatia on national security grounds, conducted without providing reasons, leading to a complaint of a violation of Article 1 of Protocol No. 7. Read on EU Law Live

Court of Justice clarifies the concept of ‘controller’ and the imposition of administrative fines to undertakings, as prescribed by the GDPR Tuesday 5 December

The Grand Chamber of the Court of Justice delivered its judgments in two cases concerning the interpretation of certain provisions of the GDPR regarding the concept of ‘controller and the imputability of administrative offenses to undertakings: Nacionalinis visuomenės sveikatos centras (C-683/21) and Deutsche Wohnen (C-807/21). Read on EU Law Live

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The Week

ISSUE Nº6 4-8 DECEMBER 2023

Council and Parliament strike deal on two legislative proposals concerning the designs package Wednesday 6 December

The Council and the European Parliament reached a provisional agreement on the revision of two legislative proposals regarding the designs package: the Directive for the legal protection of designs and the Regulation on Community designs. Read on EU Law Live

Council Recommendation on strengthening social dialogue published in OJ Wednesday 6 December

On 6 December, the Official Journal published the Council Recommendation on strengthening social dialogue in the European Union, which was ratified in Luxembourg on 12 June 2023, reminding the Member States, among other things, of the importance of ratifying and applying all relevant ILO Protocols and Conventions. Read on EU Law Live

Council and Parliament reach agreement on new labelling and packaging rules for chemicals Wednesday 6 December

On 5 December, the Council and the European Parliament reached a provisional agreement on the Regulation for the classification, labeling, and packaging of chemicals (CLP Regulation), which aims to clarify the rules on labeling chemical substances and the required information for chemicals sold online. Read on EU Law Live

EU medicines agencies publish report on lessons learned from COVID-19 Wednesday 6 December

On 1 December, the European Medicines Agency (EMA) and the Heads of Medicines Agencies (HMA) published a joint report on the response of the European Medicines Regulatory Network (EMRN) to the COVID-19 pandemic, highlighting some of the unprecedented challenges the pandemic gave rise to. Read on EU Law Live

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The Week

ISSUE Nº6 4-8 DECEMBER 2023

Zubitskiy v. Council: General Court upholds Council’s restrictive measures Wednesday 6 December

On 6 January, the General Court delivered its judgment in Zubitskiy v. Council (T-359/22), following an action for annulment filed by the applicant against Implementing Regulation (EU) 2022/581 (the contested implementing regulation). Read on EU Law Live

Council and Parliament strike deal on provisional text for the Daisy Chains proposal Wednesday 6 December

The Council and the European Parliament reached a provisional political agreement on the Daisy Chains proposal, which aims to amend the Bank Recovery and Resolution Directive (BRRD) and the Single Resolution Mechanism Regulation (SRMR) to include targeted proportionality requirements for the treatment of the internal minimum requirement for own funds and eligible liabilities in bank resolution groups. Read on EU Law Live

Hiring of a personal assistant to help a disabled person can be limited to individuals within the person’s same age range, holds Court of Justice Thursday 7 December

On 6 December, the Court of Justice delivered its judgment in AP Assistenzprofis (C-518/22), a case concerning the compatibility of national legislation establishing a preference for personal assistants within a given age range with Union law. Read on EU Law Live

Iceland addresses shortcomings in implementing EEA rules facilitating the free movement of workers Thursday 7 December

The EFTA Surveillance Authority (ESA) terminated an own-initiative case against Iceland for failing to designate national administrative bodies to promote equal treatment and support EEA workers and their family members, thus facilitating the implementation of the free movement of workers. Read on EU Law Live

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The Week

ISSUE Nº6 4-8 DECEMBER 2023

Regulation on the protection of the Union and its Member States from economic coercion by third countries and two Statements, published in OJ Thursday 7 December

Official publication was made of Regulation (EU) 2023/2675 on the protection of the Union and its Member States from economic coercion by third countries, Joint Statement of the European Parliament, the Council and the Commission on the said Regulation, and Statement by the Commission on the use of examination procedure for Union response measures under the same Regulation. Read on EU Law Live

Commission unveils comprehensive measures to strengthen citizenship rights: a package addressing consular protection, free movement, and electoral practices Thursday 7 December

The Commission published a comprehensive set of measures aimed at reinforcing EU citizenship rights, common values, and democratic participation on the 30th anniversary of European citizenship. Read on EU Law Live

Syngenta Agro: Court of Justice clarifies labelling obligations of plant protection product importers Thursday 7 December

On 6 December, the Court of Justice handed down its judgment in Syngenta Agro (C-830/21), a preliminary reference from the High Court of Justice in Hamburg (Germany) concerning labeling requirements for plant protection products. Read on EU Law Live

Court of Justice rules on lawfulness of personal data processing by credit information agencies Thursday 7 December

The Court of Justice delivered its judgment in the cases SCHUFA Holding (C-26/22) and SCHUFA Holding (C-64/22), regarding the lawfulness of processing of personal data by credit information agencies from public registers under the General Data Protection Regulation (GDPR). Read on EU Law Live

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The Week

ISSUE Nº6 4-8 DECEMBER 2023

National courts can order the recovery of State aid granted in breach of the prior obligation notification even where the limitation period has expired Thursday 7 December

On 6 December, the Court of Justice delivered its judgment in RegioJet and STUDENT AGENCY (C700/22), a preliminary reference from the Supreme Court of the Czech Republic concerning the limitation period for the recovery of State aid as set out in Article 17 of Directive 2015/1589. Read on EU Law Live

AG Collins: Claims for damages by a tenderer unlawfully excluded from a procurement process fall within Member States’ national procedural autonomy Thursday 7 December

Advocate General Collins handed down his Opinion in INGSTEEL (C-547/22), a preliminary reference from the District Court in Bratislava concerning the interpretation of Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts. Read on EU Law Live

Commission proposes ‘one Substance, one Assessment’ chemicals reform for enhanced safety and transparency Thursday 7 December

The European Commission introduced a set of three legislative proposals aimed at revolutionizing the assessment processes of chemicals within the EU, as part of the ‘one substance, one assessment’ package. Read on EU Law Live

ECtHR declares inadmissible complaints brought by former judges and President of Armenian Constitutional Court Thursday 7 December

The European Court of Human Rights (ECtHR) delivered its judgment in Gyulumyan and Others v. Armenia (application no. 25240/20), a case concerning the termination of the terms of office of four judges of the Constitutional Court of Armenia. Read on EU Law Live

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The Week

ISSUE Nº6 4-8 DECEMBER 2023

AG Richard de la Tour: Retrospective application of employee involvement rights would affect the stable operation of a European company Thursday 7 December

Advocate General Richard de la Tour delivered his Opinion in Konzernbetriebsrat (C-706/22), a case concerning a request for a preliminary ruling from the Bundesarbeitsgericht (Germany), lodged on 17 November 2022, seeking clarification, primarily, on the provisions of the Council Regulation 2157/2001 on the Statute for a European company and Council Directive 2001/86/EC supplementing the Statute for a European company with regard to the involvement of employees. Read on EU Law Live

Commission adopts Guidelines clarifying the exclusion of sustainability agreements from EU competition rules Thursday 7 December

The European Commission adopted Guidelines on how to design sustainability agreements in the field of agriculture using an exclusion from EU competition rules introduced by the newly reformed Common Agricultural Policy. Read on EU Law Live

AG Pikamäe suggests Court of Justice declare appeals concerning removal from post and compensation of FRA staff member as well founded Thursday 7 December

Advocate General Pikamäe delivered his Opinions in DD v FRA (C-587/21 P) and DD v FRA (C680/22 P), cases concerning appeals brought by DD against the judgments of the General Court in cases T-470/20 and T-632/19, concerning the disciplinary sanction of removal from post, adopted against the appellant and the subsequent compensation claimed for the non-material prejudice suffered. Read on EU Law Live

State Aid approval decisions in the Official Journal Friday 8 December

Information was published regarding the European Commission’s decisions pursuant to Articles 107 and 108 TFEU not to raise objections against certain State aid measures. Read on EU Law Live

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The Week

ISSUE Nº6 4-8 DECEMBER 2023

Institutions reach agreement on reform of the Court of Justice and decentralisation of preliminary reference procedure Friday 8 December

On 7 December 2023, the Council presidency and European Parliament representatives, together with representatives of the European Commission and the Court of Justice of the EU, reached a provisional agreement on a reform of the Statute of the Court that will permit the transfer of jurisdiction over preliminary rulings to the General Court in specific areas. Read on EU Law Live

Urgent binding measures regarding processing of personal data collected by META published by EDPB Friday 8 December

Following the European Data Protection Board’s urgent binding decision of October 2023, the Irish data protection authority (IE DPA) adopted its final decision imposing a ban on Meta Ireland Limited (Meta IE) for the processing of personal data for behavioral advertising purposes. Read on EU Law Live

Council and Parliament strike deal on revision of rules concerning the energy performance of building stocks Friday 8 December

The Council and the Parliament reached a provisional political agreement on a proposal to revise the energy performance of buildings directive, thus setting more ambitious energy performance requirements for new and renovated buildings in the EU and encouraging the Member States to renovate their building stock. Read on EU Law Live