The Week Nº7 by eulawlive

ISSUE Nº7

Y EAR 2 0 2 3

11-15 December 2023

IN-DEPTH: General Court confirms the Council’s possibility to list Russian leading businesspersons under EU sanctions Celia Challet In case of part-time employment, additional work needs to be calculated on the basis of the pro rata temporisprinciple and therefore the reduction of threshold hours applies (MK v Lufthansa CityLine GmbH, C-660/20) Kristina Balenovic The Court of Justice confirms the strict interpretation of jurisdiction for tenancies of immovable property under the Brussels I Regulation (C-497/22 EM v Roompot Service BV) Michiel Poesen Unacceptable Risks Under Water: When the Bioconcentration Factor is Given Priority – the Global Silicones Council litigation (cases C-558/21 P and C-559/21 P) Carme Ribes Ortega SYMPOSIUM ON EU ENLARGEMENT: The Franco-German report on EU institutional reform: Origins, recommendations and the role of lawyers Franz Mayer and Thu Nguyen Reforming the Treaties Gavin Barrett THE LONG READ: Special Issue on Young FIDE Seminar. FIDE Congress HIGHLIGHTS OF THE WEEK

ISSN: 2695-9593 2 0 2 3 © A L L R I G H T S R E S E RV E D

IN-DEPTH General Court confirms the Council’s possibility to list Russian leading businesspersons under EU sanctions ....5 Celia Challet In case of part-time employment, additional work needs to be calculated on the basis of the pro rata temporisprinciple and therefore the reduction of threshold hours applies (MK v Lufthansa CityLine GmbH, C-660/20) ................................................................................................................................................................ 8 Kristina Balenovic The Court of Justice confirms the strict interpretation of jurisdiction for tenancies of immovable property under the Brussels I Regulation (C-497/22 EM v Roompot Service BV) ....................................................................... 11 Michiel Poesen Unacceptable Risks Under Water: When the Bioconcentration Factor is Given Priority – the Global Silicones Council litigation (cases C-558/21 P and C-559/21 P) ........................................................................................ 15 Carme Ribes Ortega

SYMPOSIUM: On EU Enlargement The Franco-German report on EU institutional reform: Origins, recommendations and the role of lawyers ..... 21 Franz Mayer and Thu Nguyen Reforming the Treaties .......................................................................................................................................... 25 Gavin Barrett

THE LONG READ Young FIDE Seminar. FIDE Congress Introduction: Reflections on the Young FIDE Seminar 2023 The Youg FIDE Board and the Young Rapporteurs .............................................................................................. 30 Maria Fartunova-Michel, Ivan Stoynev, Cecilia Rizcallah, Agapia Kirilova and Lorenzo Cecchetti Discretionary power – a revered instrument in the toolbox of autocrats ............................................................. 40 Jonas Bornemann Squaring the Circle: The Quest for an Open, Sustainable and Assertive Trade Policy and the EU-Mercosur Trade Agreement ................................................................................................................................................... 44 Piotr Krajewski Opportunity or Threat to Cohesion? Brain Drain and Young People’s Geographical Mobility in the EU .......... 48 Marc Steiert

IN-DEPTH

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ISSUE Nº7 11-15 DECEMBER 2023

General Court confirms the Council’s possibility to list Russian leading businesspersons under EU sanctions Celia Challet The saga of the sanctioned Russian businesspersons continues. On 15 November 2023, the General Court, in

extended composition, handed down its judgment in OT v. Council (T-193/22), in which it upheld the applicant’s

listing under the EU Ukraine territorial integrity’s restrictive measures. This was not the first time that the General Court upheld a listing of a Russian businessperson in connection with the war in Ukraine. However, this ruling

is noteworthy as it further supported the Council’s use of the listing criterion of leading businesspersons involved in economic sectors that provide a substantial source of revenue to the Russian Government.

This listing criterion, which the Council introduced the day after the start of Russia’s war against Ukraine (see Decision 2022/329), allowed to impose travel bans and asset freezes on Russian individuals that the EU considered

as so-called ‘oligarchs’. The hope was that they would pressure the Russian government into ending the war. By targeting a range of individuals that are much more remote from the circle of power than what has been seen in

other sanctions regimes, this new criterion was not only legally innovative. It also sent the political message that

the EU would not shy away from targeting an ever-increasing number of individuals within Russia’s political and economic system.

Dozens of Russians were listed under this criterion, among which the applicant, OT. He was targeted as being, inter alia, a major shareholder of a conglomerate that includes Alfa Bank, one of Russia’s largest taxpayers. Like

numerous businesspersons targeted under that criterion, the applicant challenged his listing before the General Court. And just like most of the judgments that have ruled on these actions for annulment over the past months

(see cases T-270/22, T-335/22, T-305/22, T-248/22 and T-282/22), the OT v. Council ruling confirmed the

listing. However, it allowed the General Court to go further this time. Not only did it confirm its flexible approach to the notion of ‘leading businessperson’ (1). Since the applicant also challenged the listing criterion under a plea

of illegality in the meaning of Article 277 TFEU, this was an opportunity for the General Court to state that

the listing criterion was indeed lawful under EU law. OT v. Council thus provided another confirmation of the resilience of this listing criterion (and its use by the Council) to judicial review (2).

1. The preservation of an ‘effet utile’ approach to the notion of ‘leading businessperson’ A first takeaway from the judgment is that it confirmed the General Court’s flexible approach towards the notion

of ‘leading businessperson’ for the purpose of the listing criterion. The Court repeated what it had stated in its

other recent judgments: the purpose of the listing criterion is to pressure Russian authorities into ending the war.

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It is not required that these ‘leading businesspersons’ have any direct or indirect link with the Russian government, let alone its military actions. What matters is the importance of these persons by reference to a number of

parameters such as their professional status, the importance of their economic activities, the scale of their capital

holdings, or their functions within one or more companies in which they carry out these activities. The Council ought to provide a set of indicia supporting the qualification of ‘leading businessperson’, and the General Court has proved rather flexible with respect to these indicia. In particular, it stated in Khudaverdyan v. Council (T335/22) that the fact that an individual ceased his/her functions in a given undertaking does not necessarily result

in his/her former functions being irrelevant. Insofar as past activities could influence the individual’s behaviour, they may still be part of the set of indicia required from the Council.

This reasoning was applied in OT v. Council: the applicant is the co-founder of Alfa Group, a large industrial and financial group that has interests in various key sectors of the Russian economy. He was listed in Forbes’ ranking of the hundred most influential Russian individuals and, more convincingly, he was a member of the supervisory

board of the Alfa Group consortium until his listing. He was also a major shareholder in the holding that owned

Alfa Bank. While he gave up his functions and shares in these entities before his listing, the fact that he did so

the day before his inclusion in the sanctions list could not rule out his qualification as a ‘leading businessperson’. Neither did it prevent the Council from maintaining him on the list when it reviewed the restrictive measures. This is because, to quote the General Court, the concept of leading businessperson ‘refers to factual elements that are both past and long-term’. While this statement remains particularly vague, the General Court has evidently

maintained the effectiveness of this listing criterion. Its approach to temporality in Khudaverdyan and OT v. Council allows the Council to take account of the reality of (Russian) undertakings’ activities and evolutions. More importantly, it prevents the preemptive strategy of giving up shares or executive functions (which several Russian businesspersons did as a result or in anticipation of their listing) from undermining the restrictive measures. 2. The broader confirmation of the challenged listing criterion’s legality However, the main contribution of the OT v. Council ruling lies in its dismissal of the plea of illegality raised

against the listing criterion on the basis of Article 277 TFEU. It is not unusual that applicants rely on a plea of

illegality (be it based explicitly on Article 277 TFEU or on a substantial EU law provision) in their litigation against restrictive measures before the Court of Justice. However, this plea has gained new salience since the

start of the war. Numerous Russian applicants have argued that the listing criteria used against them, or even the

restrictive measures, do not comply with EU law (see cases T-301/22, T-304/22, T-737/22, T-739/22, T-740/22,

T-742/22, T-270/23). In view of the CJEU’s previous case law on such illegality-based claims, and as pointed

out by Antje Kunst here, there was little doubt that the applicant’s plea of illegality in OT v. Council would fail. However, in view of the abundant litigation against the use of this listing criterion, and given the political

considerations at the heart of its adoption, the judgment can be seen as a clear endorsement of the Council’s (current) sanctions practice.

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This is all the more so that the applicant’s arguments in OT v. Council echoed some of the criticisms that were

expressed with respect to the Council’s sanctions practices towards Russia. The applicant alleged, in essence, that the listing criterion removed the link between the situation in Ukraine and the targeted individuals, that it

did not contribute to the sanctions’ objective and that it breached legal certainty. The General Court discarded

these arguments by recalling the Council’s wide margin of discretion for the general and abstract definition of listing criteria. It also stressed that the objective of the restrictive measures and the scope of the listing criterion

were worded in a clear manner. Furthermore, there is a logical link between targeted leading businesspersons in economic sectors that provide a substantial source of revenue to Russia’s government and the objective to increase the pressure on that state. As a result, there was no breach of the principle of legal certainty. 14 days after the

judgment, the General Court’s ruling in Khan v. Council (T-333/22) applied the same reasoning to reject the applicant’s plea of illegality based on a lack of legal basis of the criterion and on an infringement of the principle of proportionality.

Overall, therefore, OT v. Council has been a clear confirmation of the Council’s possibility to resort to broader listing criteria to achieve the restrictive measures’ objectives. This may be a welcome development for the Council

as it amended this listing criterion in June 2023 to further broaden its scope. Restrictive measures can now target

‘leading businesspersons operating in Russia […] or businesspersons, legal persons, entities or bodies involved in economic sectors providing a substantial source of revenue to the [Russian Government]’ (see Decision 2023/1094). While one cannot predict the outcome of a potential challenge against the legality of this listing criterion before the Court of Justice, it is fair to assume that the OT and Khan v. Council rulings would heavily

weigh in the assessment. Provided that the Council supplies sufficient and accurate sets of indicia in support of

the listings of Russian businesspersons, it would thus seem that these listings have a rather sustainable future ahead of them.

Celia Challet is Ph.D. candidate at Ghent University (Belgium). Her doctoral research analyses the CJEU’s judicial review of EU restrictive measures adopted since 2014 in response to the crisis and the war in Ukraine. She is also Assistant to the Director of European Legal Studies at the College of Europe (Belgium).

SUGGESTED CITATION: Challet, C., ‘Op-Ed: “General Court confirms the Council’s possibility to list Russian leading businesspersons under EU sanctions” by Celia Challet’, EU Law Live, 12/12/2023, https://eulawlive.com/op-ed-general-co…by-celia-challet/

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In case of part-time employment, additional work needs to be calculated on the basis of the pro rata temporisprinciple and therefore the reduction of threshold hours applies (MK v Lufthansa CityLine GmbH, C-660/20) Kristina Balenovic Facts of the case MK is a Lufthansa CityLine GmbH employed pilot. In 2010, his working hours were reduced to 90% of full-time working hours. Similarly, his basic salary reduced by 10%. MK’s working time as member of the flying staff is not

fixed, but he does receive remuneration for additional flying duty hours on top of the basic remuneration – this is only when he works a certain fixed number of flying duty hours in a month. For example, when a threshold of 93 hours is reached in intercontinental flights on Airbus A340 aircraft and applies to all workers, regardless of their part-time of full-time employment.

Therefore, Lufthansa CityLine GmbH pays MK additional hours only after reaching the threshold of 93 hours per month. On the contrary, he claims that the fixed threshold for additional hours cannot be equal to both part-

time and full-time workers. MK suggests that the calculation of additional hours must be done considering his reduced working time, which is 90% of full working time.

Council Directive 97/81/EC on Framework Agreement on part-time work Main provisions applicable to the case include Clauses 4(1) and 4(2) of the Council Directive 97/81/EC Framework Agreement on part-time work. These provisions define that part-time workers shall not be treated

in a less favourable manner than comparable full-time workers shall solely because they work part-time unless

different treatment is justified on objective grounds. Furthermore, where appropriate, the principle of pro rata temporis shall apply. In case of part-time work, the following means that equal treatment must apply accordingly to workers’ (reduced) working time and obligations.

As the referring court noted (MK v Lufthansa CityLine GmbH, C-660/20, para. 23) the Court of Justice has adopted two different approaches in matters of application on Clauses 4(1) and 4(2) mentioned:

1) In the earlier case (Helmig & Others, C-399/92), the Court of Justice decided that there is no discrimination if a worker under 20 hours employment contract is paid the same way for the 21 up to 40 hours worked (defined

as ‘full-time’), regardless of the fact that for the worker in question, this is overtime. That judgment finds its

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foundation in the concept of ‘total pay’ as the part-time worker will receive the same payment as the full-time worker, until the threshold of full working time, as defined by the company policy, is reached.

2) A different approach was taken in the later case (Elsner-Lakeberg, C-285/02). The Court of Justice decided

to consider worker’s efforts needed to reach the additional hours and therefore, the right to additional pay when comparing part-time and full-time workers. If one needs to work, for example, 5% more of their regular hours

when working part-time, compared to a 3% increase, for a full-time worker in order to reach additional hour pay, this amounts to unequal treatment.

This occurred to Ms Elsner-Lakeberg, a part-time secondary school teacher (Elsner-Lakeberg, C-285/02). Full-

time teachers were required to work for 24.5 hours per week, or 98 hours per month. Ms Elsner-Lakeberg was teaching for 15 hours per week, corresponding to 60 hours per month. Additional paid hours would have been remunerated only after more than three additional hours performed. Therefore, in order to be paid for

additional hours, a full-time teacher was required to work three additional hours over his or her regular monthly schedule (which is approximately 3% extra), whilst a part-time teacher was required to work three additional

hours (which is 5% extra). The Court of Justice stated that ‘since the number of additional teaching hours giving entitlement to pay is not reduced for part-time teachers in a manner proportionate to their working hours, they receive different treatment compared to full-time teachers in regards to pay for additional teaching hours’ (ElsnerLakeberg, C-285/02, para. 17). Application to the case The judgment of the case (MK v Lufthansa CityLine GmbH, C-660/20), concerning the situation where a pilot

(MK) working for a 10% reduced salary is expected to perform 90% of the full-time hours. In order to reach additional hourly remuneration MK was expected to fulfil a certain threshold of working hours. This threshold

was defined by a fixed number of hours (for example 93 flying hours) and the employer envisaged no adjustments for part-time workers relative to full-time workers.

The Court of Justice decided to apply the principle of non-discrimination to part-time workers in order to prevent

an employer to deny rights to part-time workers recognised to full-time workers. Therefore, the Court of Justice found MK was treated in a less favourable manner, as he has been paid for additional hours only after he reached

the number of hours full-time pilot makes. The difference between his working hours reduced by 10% and fixed threshold of 93 hours was not treated as additional hours. This means MK had to first work his reduced hours

and then reach an overtime remuneration, while full-time pilot would be paid for overtime starting from any additional hour worked beyond his regular hours. In summary, reaching overtime pay was harder for MK as a part-time pilot than it was for full-time pilots.

Concretely, the Court of Justice ruled that ‘national legislation which makes the payment of additional remuneration for part-time workers and comparable full-time workers uniformly contingent on the same number of working

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treatment of part-time workers’ (para. 50). National legislation that allows fixed and uniformly contingent of

hours for the occasion described above is not in line with Clauses 4(1) and 4(2) Council Directive 97/81/EC. Therefore, the Council Directive 97/81/EChas direct effect and applies accordingly in favorem MK and not the TzBfG Gesetz über Teilzeitarbeit und befristete Arbeitsverträge (Teilzeit- und Befristungsgesetz) (Law on

part-time work and fixed-term employment contracts) of 21 December 2000 (BGBl. 2000 I, p. 1966), national legislation by which Directive 97/81/EC was transposed into German law.

In conclusion, additional hours of overtime should be calculated starting from an individual worker’s working hours are fulfilled. For illustration, a worker with a 20 hours per week part-time employment agreement should receive additional hours remuneration starting from 21 working hour onwards. Conclusion Previously used criteria on equal position in terms of ‘total pay’ does not seem to be found sufficient in satisfying

current legal theoretical and substantial advancements when facing part-time and full-time employment

requirements. In this latest European Union labour law judgment, the Court of Justice has given and confirmed prevailing attention to expectations placed in front of a worker. Although previously not at the front, nowadays

when imposing additional work unilaterally by an employer, changes to a workers’ position and obligation is

being placed at the centre of the decision making. In the event that employers, in establishing workers’ rights and obligations for additional work, do not acknowledge this request, they face the risk of their decisions being interpreted as treating workers’ in a less favourable manner and in breach of principle of equal treatment.

Kristina Balenović is a lawyer and expert in EU labour law and social policies. She provides legal analyses and research to European institutions, agencies and private consultancies as an independent consultant.

SUGGESTED CITATION: Balenovic, K.; ‘In case of part-time employment, additional work needs to be calculated on pro rata temporis principle and therefore the reduction of threshold hours applies (Case C-660/20, MK v Lufthansa CityLine GmbH)’, EU Law Live, 13/12/2023, https://eulawlive.com/ analysis-in-case…-hours-applies-m/

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The Court of Justice confirms the strict interpretation of jurisdiction for tenancies of immovable property under the Brussels I Regulation (C-497/22 EM v Roompot Service BV) Michiel Poesen EU law contains a bespoke rule of international jurisdiction for cross-border disputes about certain tenancies

of immovable property. Said rule is currently laid down in Article 24(1) Brussels Ia Regulation 1215/2012. It

establishes jurisdiction in the courts of the Member State where the property is located. The rationale of this

rule is to allocate jurisdiction to the court that is best positioned to adjudicate given its close connection to the property. The case of EM vRoompot Service BV (Case C-497/22) entertains the question whether a contract

relating to the letting of a holiday accommodation and the provision of an array of additional services can be considered a tenancy of immovable property. Factual Background In June 2020 EM, domiciled in Germany, booked a bungalow in Noardburgum, the Netherlands via the website of Roompot Service BV, a Dutch company. The bungalow was located in a holiday park, and had direct access

to a lake. Boats and canoes could be hired for an additional charge. EM intended to stay in the bungalow from Newyear’s eve 2020 until 3 January 2021 together with 9 other guests. By the end of 2020, the Dutch government

had however put in place stricter measures to tackle the COVID-19 pandemic. Due to these measures, EM could only stay with her own family and up to two people from other families. Roompot Service offered the alternative option to rebook the stay for a later date. EM however did not respond to the rebooking offer nor stayed in the bungalow. As a result, Roompot Service partially reimbursed EM.

EM then sought full reimbursement of her booking. To that aim she started proceedings against Roompot Service

in the Local Court of Neuss, Germany, which dismissed the claim as unfounded. On appeal against the Local

Court, the Regional Court of Düsseldorf questioned whether it had jurisdiction to adjudicate on EM’s action. It raised the question whether EM’s action was one related to ‘tenancies of immovable property’, jurisdiction

for which is exclusively with the court of the place where the property is located (in this case; Noardburgum, the Netherlands). This rule of jurisdiction is contained in Article 24(1), first subparagraph of the Brussels Ia Regulation. The reason why the Court doubted is two-fold. First, Roompot not only let a bungalow to EM; it also provided a range of other services alongside letting the bungalow, such as the offer, on the internet page of

the defendant in the main proceedings, of a variety of bungalows with different facilities, the booking of the

bungalow chosen for the customer, reception of the customer at the destination and the handing over of the keys,

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the provision of bed linen and the carrying out of cleaning at the end of the stay. Second, Roompot did not own the bungalow it let; it acted as an intermediary between the owner and EM. Decision The decision first outlined that the rule of jurisdiction for ‘tenancies of immovable property’ in Article 24(1) deviates from the default rule of jurisdiction of Article 4(1) Brussels Ia. According to the default rule, defendants

ought to be sued in the courts of the Member State where they are domicile. Article 24(1) deviates from the default rule for reasons of sound administration of justice: the courts of the place where the property is located are ‘the best placed, for reasons of proximity, to ascertain the facts satisfactorily and to apply the rules and practices which are generally those of the State in which the property is situated’ (para 26). In particular, the courts of

the place where the property is located will be best-positioned to apply the special legislative provisions related to tenancies, such as provisions determining who is responsible for maintaining the property and paying land taxes, provisions governing the duties of the occupier of the property as against the neighbours, and provisions controlling or restricting the landlord’s right to retake possession of the property on expiry of the lease.

The Court of Justice continued by adding that the notion of ‘tenancies of immovable property’ should not be

given a meaning that is broader than necessary to enable Article 24(1) to achieve its aim. Therefore, this notion only extends to disputes concerning the conditions of enjoyment of immovable property. For instance, it covers disputes between lessors and lessees relating to the existence or interpretation of tenancies, repair of damage caused by a lessee or giving up possession of the premises (para 28).

The judgment then entertained two related questions posed by the referring court. First, is Roompot’s contract

with EM a tenancy in light of the other services offered to EM alongside the letting of a bungalow? Second, should any weight be given to the fact that Roompot did not own the bungalow it let to EM?

The Court explored the boundaries between a tenancy, and a complex holiday organisation contract comprising of

the provision of services in addition to the letting of an accommodation. Such a complex contract does not come

within the scope of Article 24(1) Brussels Ia. The Court first summarised existing case law. In particular, it referred to its C-280/90 Hacker and C-8/98 Dansommer decisions. In Hacker, a travel organisation booked a holiday

accommodation and a ferry crossing to the destination on behalf of its costumer. It also provided information and advice, suggesting a range of holiday destinations out of which its customers could choose. The Court held that this was a complex contract.

The Court also referred to its decision in Dansommer. Here, a professional travel organisation served as an intermediary between the customer and the owner of the accommodation that was booked. The price paid

included cancellation insurance and reimbursement of the price in case of insolvency. The Court decided that this was a contract solely for the letting of immovable property. The services were merely ancillary to the contract’s main purpose.

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The judgment than added that ‘the referring court will have to examine whether the additional services concerned, provided in addition to the letting of the holiday accommodation which is the subject of that contract, confer a complex nature on that contract’ (para. 38). It continued by stating that ‘[that] would be so inter alia where those

services are offered in return for a lump sum on the same terms as those offered to customers of a hotel complex […]’ (para. 39).

Having considered the principles developed in case law, the Court deferred the eventual categorisation of the

contract made by Roompot and EM to the referring German court. It did however give some useful pointers. First, neither cleaning of the accommodation at the end of the stay nor providing bed linen are sufficiently weighty

services liable to distinguish, in and of themselves, a tenancy from a complex contract. Second, ‘information and

advice, booking and reception services forming part of the offer proposed by a tourism professional, together with the letting, in return for a lump sum, constitute services which are generally provided as part of a complex holiday organisation contract’ (para. 41).

The Court finally added that the fact that a travel organisation did not own the property (but was subrogated in

the rights of the owner) is immaterial to the analysis. What matters is the nature of the contractual relationship between the travel provider: the provision of additional services may indicate that the contract is a complex contract instead of a tenancy.

In conclusion, the Court suggested that on the balance of the information submitted by the referring court, it seemed that Roompot’s contract with EM is more likely to be a complex holiday organisation contract than a tenancy. The Court however left the final assessment to the referring court. Conclusion The Court’s decision in Roompot BV is a useful reminder of the principles developed by the Court of Justice for

interpreting the scope of Article 24(1) Brussels Ia. In general, it is indicative of a rigorous interpretation based on well-developed principles. The decision also illustrates that the national courts of the Member States have an important role to play in establishing the factual elements necessary to examine their jurisdiction under the Brussels Ia Regulation.

Of note is that the German domiciled claimant EM may still attempt to base the jurisdiction of the German courts on Article 18(1) Brussels Ia. This provision allows consumers to start proceedings in the courts for the place

where the consumer is domicile. It sits lower in the hierarchy of jurisdictional bases in Brussels Ia, since it only is available unless a rule of exclusive jurisdiction such as Article 24(1) is applicable. It applies on the condition that

the defendant directed his commercial or professional activities to that Member State, and that the contract falls within the scope of such activities.

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Dr Michiel Poesen is lecturer in private international law at the University of Aberdeen, where he is a member of the Centre for Private International Law. His research interest is among other things in the harmonisation of the law of international jurisdiction and the intersection between private international and fundamental rights and values

SUGGESTED CITATION: Poesen, M.: ‘The Court of Justice confirms the strict interpretation of jurisdiction for tenancies of immovable property under the Brussels Ia Regulation (C-497/22 EM v Roompot Service BV’, EU Law Live, 12/12/2013, https://eulawlive.com/analysis-the-cou…ompot-servicebv/.

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Unacceptable Risks Under Water: When the Bioconcentration Factor is Given Priority – the Global Silicones Council litigation (cases C-558/21 P and C-559/21 P) Carme Ribes Ortega There is growing social concern about the continued exposure to chemicals that may pose risks to human health and the environment (see Eurobarometer 2020). The European Union institutions are working on the protection

of these legal assets from various angles, since the presence of such chemical substances is very diverse and

persistent, as they are present in a number of products that consumers use or with which they have daily contact:

the mattress they sleep on, the clothes they wear, the water they drink, the household appliances they work with, the paint on the walls or the materials of the furniture that surrounds them are some of the sources of exposure. Many of such chemicals are also present in commonly consumed food resulting in a wide range of dietary sources

of exposure. The presence of chemicals with properties of high concern originates from a variety of sources, including the composition of certain food contact materials, the use of some plant protection products, and the

trophic amplification that occurs when other animal species are ingested along the food chain. In particular, aquatic species are often exposed to chemical substances that enter their natural environment through water as a result of human activities (EEA Technical Report No 8/2011, sections 4.4 and 7.1.).

These chemicals include octamethylcyclotetrasiloxane (‘D4’), decamethylcyclopentasiloxane (‘D5’), and

dodecamethylcyclohexasiloxane (D6). They are the main protagonists in the present cases, which revolve around their legal status, precisely due to their high presence in the aquatic environment, according to the opinions of the public bodies responsible for the respective assessments, i.e., Member State Committee (‘MSC’), Committee for Risk Assessment (‘RAC’) and Committee for Socio-economic Analysis (‘SEAC’).

This Analysis presents two recent cases brought before the Court of Justice of the European Union, namely

Global Silicones Council and Others v Commission and Others (C-558/21 P) and Global Silicones Council and Others v ECHA and Others (C-559/21 P). These judgments were delivered on 9 November 2023 and concern two related

actions for annulment. Both cases have in common similar appellants, substances, and dates, although they refer

to different REACH Regulation (annexes: the first case regards Annex XVII (restrictions process), and the second case regards Annex XIV (authorisation process). Both appeals have been dismissed in their entirety. The Court’s

judgment caught the attention of the legal community specialised in cases related to risk assessment. Indeed, the Court was expected to rule on relevant aspects detailed in the following.

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I. Global Silicones Council and Others v EC (C-558/51 P) Case C-558/21 P concerns Commission Regulation (EU) 2018/35 (‘the regulation at issue’) by which the Commission amended Annex XVII of REACH Regulation to include the ban of certain uses of the aforementioned

substances (D4 and D5) on the grounds that they pose risks to human health and the environment. Following

the dismissal by the General Court of the action brought against the contested regulation, the appeal before the Court of Justice raised a number of questions, including inter alia whether the Commission itself should have determined that the substances in question pose unacceptable risks, how the concept of unacceptable risk should be applied and whether the prohibition had been sufficiently reasoned.

More specifically, the appellants submitted five grounds of appeal, which the Court of Justice ruled on as follows: The first ground of appeal concerns the concept of ‘unacceptable risk’ in Article 68(1) of REACH. In this respect, it is for the European Commission to determine whether there is an ‘unacceptable’ risk to human health and

the environment. Although this decision is taken by the European Commission, its determination is based on

the opinions of the Committees (the RAC and SEAC), as clarified by the General Court in paragraph 217 of its judgment. This is due to the single administrative procedure for identifying such type of risks, in which the

European Commission does not need to carry out a new assessment at a later stage but relies on the information provided in the course of the procedure. The Court’s findings on this regard answers the question of whether the Commission itself should have determined that the substances concerned posed unacceptable risks.

When applying of the precautionary principle to assess the (un)acceptability of the risk, interestingly, no precise definition or quantifiable critical probability threshold for adverse effects is required. Thus the

determination as to whether the risk is unacceptable must be based on two factors: (1) risk assessment of the

restriction (in accordance with Annexes I and IV REACH) and (2) consideration of the socio-economic impact of such a restriction (this is also AG Kokott’s view, point 81), which in turn cites previous cases: C-333/08 and C-616/17 P). This provides answers to the question of how the concept of unacceptable risk should be applied.

As to the second ground of appeal, the Court of Justice upholds the General Court’s decision (para. 327 to 331) affirming that the absence of the expression ‘unacceptable risk’ in the contested regulation does not constitute a gap in the statement of reasons. The Court states that the Commission was justified in deeming the presence of

D4 and D5 in wash-off cosmetic products as an unacceptable risk based on the regulation’s wording and context (para. 44). This confirms the sufficiency of the Commission’s reasoning for the ban.

Further questions raised by the appellants in their appeal and answered by the European Court of Justice were the following:

As regards the third ground of appeal, the European Court of Justice considers several arguments to be inadmissible

for various reasons (e.g., some complaints were not raised in the appeal but in a later stage of the procedure).

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Notably, it highlights the appellants’ misunderstanding of the alleged ‘zero’ risk. The Court clarifies that, in the

context of a restrictions procedure, a quantitative risk assessment is not necessarily carried out for substances such as D4 and D5, which have been identified as PBTs or vPvBs. Instead, a qualitative assessment in accordance with Annex XIII is required.

The fourth ground of appeal concerns the priority given to bioconcentration factor (BCF) data. The Court of Justice clarifies that Annex XIII requires consideration of all available evidence applying a weigh-of-evidence

approach. However, the Court of Justice states that if there are studies which determine the BCF in a relevant and reliable manner, such data will be given greater weight than other data within the application of Annex XIII

(same line of argument as that put forward by AG Kokott, points 44-50). Consequently, the Court of Justice upholds the General Court’s finding that the EU legislature gave priority to the results of such studies on the BCF of substances in aquatic species.

The fifth ground of appeal addresses the hybrid nature of substances D4 and D5 (i.e. they are both organic and

inorganic). The appellants argued that this hybrid nature gives rise to unique properties, which, in their view, suggests an ‘adjusted’ consideration of the criteria set out in Annex XIII. In this regard, the European Court of Justice upholds the General Court affirming that the consideration of this hybrid nature is a preliminary step

in the analysis and assessment of substances with PBT and vPvB properties without changing the overall risk assessment outcome.

In conclusion, the appeal in case C-558/21 P is dismissed in its entirety. II. Global Silicones Council and Others v ECHA and Others (C-559/21 P) This case concerns the classification of the D4, D5 and D6 as substances of very high concern (SVHC) due to their intrinsic properties as PBT and mPmB, in accordance with Article 57 (d) and (e) of REACH.

The aim is their eventual inclusion in Annex XIV, following the authorisation procedure set out in Article 58 REACH. Notably, all three substances are currently on the Candidate List, a status that has been maintained pending the outcome of the legal proceedings culminating in the judgment of the Court of Justice in Case C-559/21 P, the results of which are summarised below:

As to the first ground of appeal, the Court reiterates essentially its position in the previous case and emphasises that, where the corresponding analysis are reliable, BCF data is to be given priority. Similarly, on the second ground of appeal, the Court repeats its findings on the hybrid nature of these substances (these findings correspond to the fourth and fifth grounds of appeal in the previous case, C-558/21 P).

The third ground of appeal focuses on the consideration of data for the assessment of PBT/vPvB properties, which

shall be obtained under ‘relevant conditions’. The appellants draw a distinction between risk assessment and hazard assessment. Citing previous case-law, the Court of Justice clarifies that the concept of hazard assessment

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applies to both authorisation (Article 64(4) of REACH) and restrictions procedures (Article 70 of REACH). In

line with the General Court, the Court of Justice clarifies that the ‘relevant conditions’ in Annex XIII relate to the suitability of the test methods for determining the intrinsic hazard of the substances concerned.

The fourth ground of appeal concerns the application ‘mutatis mutandis’ of the CLP Regulation (Regulation (EC)

No 1272/2008). The Court rejects the application by analogy in this respect, emphasising that the appellants have not shown how a combined reading of both REACH and CLP Regulations could have led to a different result. In conclusion, the appeal in case C-559/21 P is also dismissed in its entirety. III. Conclusion The judgments reviewed contain relevant insights into the risk analysis of chemical substances and mixtures regulated under the umbrella of REACH Regulation. This comprehensive regulation puts in place various

procedures, which offer the procedural guarantees inherent to our legal system. However, as a negative externality, it should be noted that the administrative and judicial procedures are considerably long in duration, although this does not necessarily imply undue legal delays.

For instance, in the same ECHA decision ED/61/2018, which determined that substances D4, D5 and D6

should be included in the candidate list, other substances were also mentioned that have already completed the

authorisation procedure and have been included in Annex XIV of the REACH Regulation. Nevertheless, the

procedure for substances D4, D5 and D6 was delayed due to the initiation of these court cases, which have now

come to an end with the judgments of the European Court of Justice. With the conclusion of the judicial process, these substances can now continue their administrative authorisation procedure and, eventually, be included in Annex XIV.

This case highlights the persistent challenge of prolonged legal processes. The extended duration, spanning for at least five years from ECHA’s decision in 2018 to the present in 2023, has kept these three substances of very

high concern on the candidate list. This lengthy period raises concerns about the potential lack, or sufficiency, of protection of human health and the environment during this period.

Carme Ribes Ortega is PhD researcher at the Department of Public Law, University of Lleida, Lleida, Spain; Chair of Food Law, University of Bayreuth, Bayreuth, Germany. She is the author of “The Law Is Elastic but Does Not Bend: A Literal Interpretation of European Union Chemical Legislation Could Leave Health and the Environment Unprotected”. European Journal of Risk Regulation, 2023 14(3), 612-625. https://doi.org/10.1017/err.2023.41

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Acknowledgement is made of the University of Lleida Scholarship. This work is supported by the project “Public Health in Transformation: Disinformation, Food and Climate Change (SPenT)” (PID2019-107212RA-I00), funded by the Spanish Ministry of Science and Innovation.

SUGGESTED CITATION: Ribes Ortega, C.; “Unacceptable Risks Under Water: When the Bioconcentration Factor is Given Priority – the Global Silicones Council litigation (cases C-558/21 P and C-559/21 P)”, EU Law Live, 08/12/2023, https://eulawlive.com/analysis-unacceptable-risks-underwater-when-the-bioconcentration-factor-is-given-priority-the-global-silicones-council-litigation-cases-c-558-21-p-and-c-559-21-p-by-carme-rib/

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SYMPOSIUM ON EU ENLARGEMENT

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The Franco-German report on EU institutional reform: Origins, recommendations and the role of lawyers Franz Mayer and Thu Nguyen This Op-Ed the first contribution to a Symposium on EU Enlargement, which will take place over the next two months.

Fundamental questions are back on Europe’s agenda: the European Union is reconsidering its geography, institutions, competencies, and funding. For geopolitical reasons, EU enlargement is high on the political agenda, but the EU is not ready yet to welcome new members, neither institutionally nor policy-wise. Its institutions

and decision-making mechanisms were not designed for a group of up to 37 countries and, as they are currently constituted, make it difficult even for the EU27 to manage crises effectively. The mandate Against this backdrop, the French and the German Ministers of State for Europe, Laurence Boone and Anna

Lührmann, invited 12 independent experts to form a ‘working group on EU institutional reforms’. Our task was

to develop reform proposals that would help to increase the EU’s capacity to act, protect its fundamental values, strengthen its resilience, and bring it closer to European citizens in preparation for potential future enlargement

and as a follow-up to the Conference on the Future of Europe. Our group’s mandate was set as the following:

How can the EU be made enlargement ready while also improving its capacity to act, protecting the rule of law, enhancing democracy and preserving fundamental European values?

The Group of Twelve, as we call ourselves, met at least biweekly in digital two-hour sessions and as well as in

several in-person meetings over almost eight months. While our composition was Franco-German, we approached

the questions from a trans-European perspective. During our work, we invited experts, decision-makers – both

former and active – as well as advisors from other EU and candidate countries to numerous confidential exchanges, during which we received valuable input. Notably, while we had many intense discussions on the content of the questions, we never experienced a division line between the French and German experts in the group. The report The recommendations in our report are divided into three chapters: 1) protecting the rule of law as a fundamental

principle underlying the EU’s functioning; 2) addressing institutional challenges in five key areas of reform; and 3) managing the process of widening and deepening the European Union.

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It was not clear from the beginning that the protection of the rule of law would receive a chapter separate from the other reform areas, but something that only emerged during our discussions as we discussed the centrality of rule

of law principles for the EU’s functioning. After all, the rule of law is not only one of the fundamental values on which the EU is based. Most of the EU’s policies, including the single market, rely on the assumption that member states have functioning justice systems. To strengthen EU rule of law instruments, we make recommendations in two areas: First, to make the rule of law conditionality mechanism an instrument to sanction breaches of the

rule of law and, more generally, systematic breaches of the European values enshrined in Article 2 TEU and to introduce conditionality, similar to the model of NextGenerationEU, for all future funds. Second, to refine Article

7 TEU by removing the possibility of one member state blocking the whole procedure and by introducing more automaticity into the decision-making process.

In the main reform chapter, we address five areas of reform, which we consider to be the most crucial for the EU’s future. Two aspects should be noted here: First, not every idea which we discussed in the group is included

in the final report. We neither propose reforms which would radically change current institutional balance of the

EU, nor do we recommend ideas which we consider to be politically too difficult to implement at this moment in time, even if they are good ideas. Second, while the premise of the report is the question of how the EU should prepare for enlargement, we believe that some of the reforms proposed in the report should be implemented even if enlargement was substantially delayed.

The first key area of institutional reform is making the EU institutions enlargement-ready. This relates to practical questions such as the size and organization of the EU institutions in an enlarged EU. Recommendations include

not to increase the number of seats in the European Parliament beyond 751 MEPs as well as to extend the trio format of the Council presidencies to a quintet of presidencies, each spanning half of an institutional cycle. We also propose two options on how to avoid a too big and ineffective Commission with more than 35 Commissioners.

The second key area of reform is the issue of decision-making in the Council and in particular the danger of

blockages in areas where unanimity still prevails. We recommend that, before the next enlargement, all remaining policy decisions should be transferred from unanimity to QMV. To make this transition more acceptable for sceptical and smaller member states, we also propose the creation of a ‘sovereignty safety net’ as well as a recalculation of QMV voting shares and an opt-out option for policy areas transferred to QMV.

In the third area, to improve EU-level democracy, we make recommendations relating to the EP elections as well as the appointment of the next Commission President after the 2024 European elections. We also recommend making use of existing participatory instruments to prepare for enlargement by including citizens from candidate countries. In addition, we propose the establishment of a new independent Office for Transparency and Probity (OTP) in charge of monitoring the activities of all the actors working in or for the EU institutions.

In the fourth area of reform, which concerns the EU’s powers and competences, we inter alia recommend strengthening provisions on how to deal with unforeseen developments, competency-wise, and a better inclusion

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of the EP in Article 122 TFEU. We also propose to create a ‘Joint Chamber of the Highest Courts and Tribunals of the EU’ to foster non-binding dialogue between European and Member States’ courts.

Lastly, we consider the question of EU resources to be the fifth vital area of reform for enlargement. A reform of the policies of the budget itself would have exceeded our mandate, which is why we limit ourselves to the

recommendation of establishing a thorough spending review to reduce the size of some spending areas and to

increase others. In addition, we make proposals on how to make the EU budget more flexible and apt for the

future. In particular, we recommend increasing the EU budget in the coming budgetary period both in nominal

size and in relation to GDP as well as the introduction of new own resources to limit tax optimisation, avoidance and competition within the EU. We also propose to move decisions on the multiannual framework towards QMV for spending and to align its length to the institutional cycle of the EU. Lastly, we think the EU should be enabled to issue common debt in the future.

Our third chapter deals with the question of how manage the process of widening and deepening the EU. We lay out six different options for Treaty change and explain their advantages and disadvantages. At the same time, we believe that an enlarged EU will require a degree of flexibility to function. For this, we lay out different principles

for differentiation within the EU, with the most fundamental ones being the respect for the acquis communautaire and the integrity of the EU’s policies and actions, and the use of the EU institutions to avoid an intergovernmental Europe à la carte. In a simplified manner, we envision the future of European integration as four distinct tiers: the inner circle, the EU; associate members, and the EPC, with a rule of law frontier around the third tier.

The enlargement process itself also fell outside our mandate. Nonetheless, we felt that the report would not be

complete without at least some general principles on how to manage the enlargement process. We also believe

that there should be a mutual commitment goal for the EU to try and become ready for enlargement by 2030; candidate countries should work to fulfil all accession criteria by then. The accessions themselves should be broken down into smaller groups of countries (‘regatta’) with a set of principles to guide future enlargement strategies. The role of lawyers There were three lawyers in the group. Why lawyers? Lawyers do not normally concern themselves with the

future. Even in the present, they look to the past. The law we apply today is the political wrangling of yesterday, the passionate debates and battles that have coagulated into law. As lawyers, we spend most of our time looking in the rear-view mirror. So it is probably not the best idea to ask us about the road ahead.

At the same time, lawyers are needed at some point. They have to put the political choices into coherent legal language, consistent terminology. They can say what the framework of the political choices is, what is possible

and what is not possible. They are the gatekeepers. But normally, the hierarchy is clear: the political decision comes first. This may lead to results that do not correspond to legal textbook solutions or established conventional

legal doctrinal wisdom. Famously, Deirdre Curtin considered the result of the 1993 Maastricht Treaty ‘a Europe of bits and pieces.’ Nevertheless, the role of law and lawyers is to process political choices even if they lack www.eulawlive.com

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coherence: law can transform complexity into coherence, avoiding constitutional chaos. Consider the example of

differentiated integration that we discuss in the report. If principles for differentiated integration are not agreed upon beforehand, then lawyers and courts will develop them. Or take the example of Treaty change, which is another topic we cover in the report: if standard approaches do not work, untested options may lead further. Conclusion Although many things have changed profoundly in the past two decades, we see a lasting value in the EU legal framework, its institutional system, and its procedures, which have allowed for joint progress and inclusive decision-making that serve EU citizens’ and countries’ interests. This is why our report does not rethink European integration ‘from scratch’ but proposes adjustments to fit the new realities, both in terms of deepening and in terms of flexibility.

Arguably the most crucial insight is that we highly recommend thinking in terms of ‘the cost of non-action’. Given that neither global changes nor internal challenges will become lighter, time and decisiveness is of the

essence. Choosing to not reform the EU or not to integrate candidate countries with a strong commitment to the EU and its principles and values would come at an even higher price for the EU, its Member States and its citizens.

The EU could be in very real danger if not enough is done to prepare it for the future. Franz Mayer is professor at the Faculty of Law at the University of Bielefeld. He holds the chair of Public Law, European Law, Public International Law, Comparative Law and Law & Politics.

Thu Nguyen is Deputy Director of the Jacques Delors Centre, Hertie School.

SUGGESTED CITATION: Mayer, F., and Thu Nguyen: ‘The Franco-German report on EU institutional reform: Origins, recommendations and the role of lawyers’, EU Law Live, 13/12/2023, https://eulawlive.com/op-ed-the-franco…r-and-thu-nguyen/.

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Reforming the Treaties Gavin Barrett This Op-Ed is part of a Symposium on EU Enlargement, which will take place over the next two months. The first Op-Ed was authored by Franz Meyer and Thu Nguyen.

A spectre is haunting European capitals – the spectre of Treaty reform. Across Europe, debate is quietly ongoing regarding whether, when and how the EU’s basic Treaties can be revised. This debate has surfaced a few times – for example, in a September expert report advanced (although not endorsed) by France and Germany; in an October 25th report of the European Parliament’s Constitutional Affairs Committee; and earlier (at least implicitly) in the 2022 proposals of the Conference on the Future of Europe.

Why now? First, change is overdue: the foundational Treaties have not been overhauled since the entry into force

of the 2007 Lisbon Treaty (which itself largely reflected compromises arrived at in the failed 2004 Constitutional Treaty). Remarkably, the Treaty provisions on EMU have stayed largely unchanged since the Maastricht Treaty

was agreed in 1992 (an omission which has necessitated their being supplemented by non-EU Treaties, secondary legislation and soft law).

Secondly, crises have abounded since Lisbon, revealing weaknesses. Most recently, the Ukraine war, which exposed

the EU’s inadequacies in foreign, defence and energy policy. The consequent shock has added a sense of urgency to the drive for EU reform.

Most importantly though (and also linked with the Ukraine situation) is the need for the EU to enlarge. By now, eight central and eastern countries on the Eastern borders have been granted candidate status – Türkiye, North Macedonia, Montenegro, Serbia, Albania, Ukraine, Moldova and Bosnia-Herzegovina (with Georgia and Kosovo

still seeking candidate status). Admittedly, some candidatures lack reality. Türkiye’s relapse into autocracy has meant its admission process has been frozen indefinitely. Serbia’s approach to Kosovo and, latterly, its ambiguous stance towards Ukraine has caused problems, and until recently, political turmoil in Montenegro has led to its admission process stalling too. Nevertheless, enlargement is coming – and requires preparation Otherwise, the

EU could glide into the fatal trap of expanding without an adequate strategy to ensure its continued efficient functioning.

Preparations for enlargement will require far more than treaty reform. Hence, enlargement will require major

financial preparations – and sacrifices. An internal paper by the Council secretariat leaked to the press in October noted that the accession of nine new states (excluding Türkiye) under current rules would add €256.8bn to the cost of the multiannual financial framework, increasing the EU’s budget by 21 per cent to €1.47 trillion and

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concluded ‘all member states will have to pay more and receive less from the EU budget; many member states

who are currently net receivers will become net contributors’. The budgetary implications of enlargement will thus need to be agreed by 2027 which is when the next MFF cycle begins.

Yet Treaty change will also have to be part of the enlargement dynamic. We have been here before. The same

phenomenon drove agreement on the 1997 Amsterdam Treaty and the 2001 Nice Treaty, allowing the enlargement of the EU by ten states in 2004 and two more in 2007.

In her September State of the Union speech to the European Parliament, Commission President Von der Leyen

explicitly anticipated the possibility of a European Convention and Treaty change in the context of enlargement. Nonetheless, there still tends to be hesitancy about promising Treaty change. Von der Leyen carefully hedged her

bets by saying the EU should not wait for Treaty change to move ahead with enlargement. The October Granada

declaration by the European Council merely declared ambiguously of enlargement that ‘the Union needs to lay the necessary internal groundwork and reforms. We will set our long-term ambitions and the ways to achieve

them. We will address key questions related to our priorities and policies as well as our capacity to act.’ Ultimately however German Europe Minister Lührmann – brandishing a paper advocating Treaty changes – is correct in asserting that enlargement and reform ‘go hand in hand. And we need to begin this now’.

What Treaty amendments await? So far, there have been three prominent generators of ideas. The May 2022

report of the Convention on the Future of Europe issued 49 recommendations and 200 individual proposals to

improve the EU on areas as varied as education, digital transformation, European democracy, the rule of law, climate change, health and migration. Some would require Treaty change. Thirteen Member States (Bulgaria, Croatia, Czechia, Denmark, Estonia, Finland, Latvia, Lithuania, Malta, Poland, Romania, Slovenia and Sweden)

attempted to strangle at birth any idea that the Convention’s ideas should lead to treaty reform, by immediately publishing a non-paper recalling that ‘Treaty change has never been a purpose of the Conference we do not support unconsidered and premature attempts to launch a process towards Treaty change’ and asserting that ‘we

already have a Europe that works. We do not need to rush into institutional reforms in order to deliver results’. The Conference’s proposals live on as ideas (burnished by their advocacy by ordinary citizens) however, and have influenced European Parliament calls for Treaty change.

Secondly, the September 2023 Report of the Franco-German Working Group on EU Institutional Reform advanced

jointly by France and Germany advocated several ideas for change. These include a widespread end to unanimity

voting (with smaller Member States compensated by increased voting power), strengthening rule of law requirements; facilitating the issuance of common debt and shortening of the budget cycle; and a budget more

commensurate with the size of the EU’s tasks. Most eye-catchingly, the Report also revived the idea of concentric

circles of integration – an inner circle of Members who would freely integrate further; then EU members; then

associate members; then (outermost) the European Political Community. The attractiveness of the model to candidate or existing Member States remains unclear.

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Thirdly, an October report of the European Parliament’s Constitutional Affairs Committee advocated extensive

Treaty change. Alongside proposals on foreign, security and defence policy (including more QMV), the single market, education, trade and investment, non-discrimination (including using the language of gender equality in

the Treaties), climate and environment, energy policy, security and justice (including enhanced Europol powers)

and migration (including common minimum citizenship requirements), it advocates shared competences e.g., in health and education and makes (unlikely-sounding) calls for exclusive EU competence for the environment and biodiversity, for EU-wide referendums (both in the EU legislative process and the treaty amendment process). It advocates more decision-making by QMV and the ordinary legislative procedure and a more politically-flavoured

Commission. More self-interestedly, it also demands a right of legislative initiative for Parliament, co-legislative budgetary power and the reversal of the current roles of Council and Parliament in electing the Commission President.

Such ideas represent only the first shots fired in a Treaty reform debate. Various Member States have been

working on their own proposals on Treaty reform. Moreover, issues such as enhancing EU level democracy, adjusting the EU’s crisis response framework and updating provisions in areas such as EMU will doubtless appear

on the agenda. A CFSP dominated by unanimity voting has proved problematic, as the Ukraine crisis has shown, although changing voting rules is no cure-all, since the problem is sometimes widespread disunity, witnessed over Iraq and, more recently, Gaza.

No discussion of Treaty reform can avoid discussion of the stone in the midst of all: the Article 48 TEU Treaty

amendment process, arguably utterly unfit for purpose. Its giving each State a veto over Treaty change for all Member States seems an overhang from when European integration involved fewer States, and democratically unnecessary. The US Constitution needed only nine of thirteen states to ratify it (a wise precaution since Rhode

Island initially rejected it). Amendment of the UN Charter requires inter aliaratification by just two thirds of

UN Members. NATO’s Constitution entered into force between the States which had ratified it as soon as the ratifications of the majority of the signatories had been deposited. In 2013, the Fiscal Stability Treaty could enter

into force when a mere twelve Contracting Parties whose currency was the euro had deposited their instrument of ratification. The ESM Treaty could enter into force when instruments of ratification had been deposited by signatories whose initial subscriptions represent only 90% of the total. A similar approach of allowing arrangements to enter into force only for those States which have ratified them once this reaches a certain minimum number seems vital for the success of future constitutional change. This seems to be anticipated in the Franco-German

paper, which advocates, in case of negotiation deadlock, the fallback option of ‘a supplementary reform treaty (such

as the ESM Treaty) between the Member States willing to move forward’. The ESM reference may (and should) be taken to imply the approach of permitting entry into force for ratifying states of such supplementary reform

treaties once a certain minimum number of ratifications is reached. Without such an approach, a new Treaty

may not be agreed in the first place, or once agreed may not be ratified – especially given the unpredictability of national referendums in an age of internet disinformation. That would risk Treaty reform negotiations becoming a tale full of sound and fury, signifying nothing – a fate Europe can do without.

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Gavin Barrett is a Professor at UCD Sutherland School of Law and the sometime Jean Monnet Professor of European Constitutional and Economic Law there.

SUGGESTED CITATION: Barrett, G.: ‘Op-Ed: “Reforming the Treaties’, EU Law Live, 15/12/2023, https://eulawlive.com/op-ed-reforming-…bygavin-barrett/

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THE LONG READ YOUNG FIDE SEMINAR 2023 FIDE CONGRESS

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Introduction:

Reflections on the Young FIDE Seminar 2023 The Youg FIDE Board and the Young Rapporteurs Maria Fartunova-Michel, Ivan Stoynev,1 Cecilia Rizcallah,2 Agapia Kirilova 3 and Lorenzo Cecchetti 4 On the first day of the XXVV FIDE Congress (Wednesday 31 May 2023), The University of Sofia in tight

cooperation with Centre européen universitaire and IRENEE (Laboratoire de droit public et science politique, University of Lorraine, Nancy, France) hosted the Young FIDE Seminar in Sofia (Bulgaria).

The Seminar was opened by Lars Bay Larsen, Vice-President of the Court of Justice of the European Union. In his welcome addresses, he focused on the legal challenges emerging in relation with the mutual trust and the respect of rule of law and European values, the new geopolitical dimension of the EU competition and trade policies and the reinforcement of the social aspect of European Union.

Young scholars, PhD students and young practitioners were invited to submit original papers dealing with one

of the three main topics of the FIDE Congress: (1) Mutual trust, mutual recognition and rule of law; (2) The new

geopolitical dimension of the EU Competition and Trade policies and (3) The European Social Law. This provided the basis for stimulating discussions together with the audience, Young Rapporteurs and other expert panelists. The concluding plenary session was chaired by María Lourdes Arastey Sahún, Judge, President of the VII chamber of

the Court of Justice of the EU. During this concluding session the Young rapporteurs reflected on the presentations and discussions in the different parallel sessions.

In the following, the three Young Rapporteurs – Cecilia Rizcallah, Agapia Kirilova, Lorenzo Cecchetti – share their insights from the parallel sessions on the three FIDE topics. The additional fourth contributions of this

Weekend Edition are written by EU lawyers who presented their papers during the Young FIDE Seminar: Jonas Bornemann, Piotr Krajewski and Marc Steiert.

1. Maria Fartunova-Michel is Associate Professor, Chaire Jean Monnet EUBioethics, IRENEE, University of Lorraine (FRANCE), while Ivan Stoynev is Assosiate Professor, University of Sofia (BULGARIE). The organisers wish to express their gratitude to Professor Anastasia Iliopoulou-Penot, University of Paris II, Panthéon-Assas, Chair of the Panel on European Social Law. 2. Associate Professor, University of Saint-Louis (BELGIUM). 3. PhD Researcher, University of Sofia, University of Lorraine (FRANCE). 4. Postdoctoral Research Fellow, Luiss University, and Trainee judicial clerk, Italian constitutional Court (ITALY).

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Young FIDE Seminar Topic I: Mutual trust, mutual recognition and rule of law, by Cecilia Rizcallah The aim of the topic of the first panel, introduced by Maria Fartunova-Michel, associate professor of the University

of Lorraine, was to examine the links between the principles of mutual trust and mutual recognition and the rule

of law as defined in the recent case law of the Court of Justice. More specifically, the concept of the rule of law and the place of the values of EU shall be analysed in the light of Article 2 of the EU Treaty and the consequences of the axiological approach to European construction.

The reference to the principle of mutual trust is not new to the EU legal system. It is now accepted that the ‘principle of mutual trust’ is fundamental not only to the area of freedom, security and justice, but also to justifying

the specific nature of the European Union and its construction as a Union based on the rule of law. The purpose was to focus on the contribution of the principle of mutiual trust and on what it reveals about the European dynamic as a whole process in the light of three main points of view thanks to contributors to this panel.

The first one concerns the contribution of the the mutual trust to the construction of EU a complex legal space

troughout the mutual trust and the respect for some fundamental values. Raquel Cardoso, Assistant Professor, PhD researcher at Faculty of law Coimbra, Portugal, has proposed to discuss this point in the light of European Constitutional Identity as mirror and reflection of national constitutional identities – concessions, limits and trust

within the EU. Raquel Cardoso’s paper indeed brings a fresh outlook on the concept of European constitutional identity, which has recently gained prominence due to the Court of Justice’s rulings regarding the conditionality

regulation. She argues that this notion actually limits the margin of action for member states, as they can no longer contravene the values that form the core of this common identity.

This extremely interessant and relevant exposé introduced to the second point of the first panel: the mutual

trust has been connected at some extend with defiance, mefiance or mistrust and it does reveal a crisis of values. Which is the consequence of such a crisis for the model of European economic governance? Guillermo Íñiguez

Martinez, Phd Researcher at Somerville College, University of Oxford, explored this point and shed light on

the crisis of values, the rule of law and mutual recognition. Guillermo Íñiguez Martinez’s paper addresses a

relatively understudied area: the consequences of the values crisis on economic integration. While research has predominantly focused on the consequences within the Area of Freedom, Security, and Justice, Guillermo demonstrates that the rule of law crisis can also have significant adverse effects on the internal market.

This particularly enlightening presentation, which brings us to the third point on our panel and mutual trust: the

interaction between the principle of mutual trust, the democratic regime and the rule of law. This connection is increasingly highlighted in the recent case law of the Court of Justice, which links it to a fundamental issue in

a liberal and democratic society: the division of powers. Jonas Bornemann, assistant professor of European law

at the Rijksuniversiteit Groningen, discussed this point and proposed an original analysis about Discretionary powers – an (often overlooked) focal point of the rule of law crisis. The author analysed the decay of the rule of law www.eulawlive.com

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from an original perspective by focusing on a well-known concept in administrative law: the power of discretion. Throughout his paper, he demonstrated how the abuse of this tool can serve illiberal goals.

These three presented contributions underlined that the principle of mutual trust did reveal the advances and uncertainties, both in terms of strengthening the constitutional foundations and asserting the autonomy, opening up the prospect of the development of the European integration process.

Young FIDE Seminar Topic 2: The new geopolitical dimension of the EU Competition and Trade policies, by Agapia Kirilova The second panel focused on the new geopolitical dimension of the EU Competition and Trade policies, introduced

by Ivan Stoynev, Associate professor at the University of Sofia. In 2021 the European Commission promote the concept of so called ‘open strategic autonomy’: a concept that aims to enhance Europe’s self-sufficiency and independence in critical areas while staying open to global trade and cooperation. This aims to make Europe more united, assertive and stronger; putting the interests and values of its citizens first.

To stay influential globally, the vision of the Commission is focused on the ability of the EU to act independently

in key matters while collaborating with partners when it is possible. This requires efficient and sustainable use of strategic assets – making the EU less reliant on other countries.

Open strategic autonomy is the concept that can help achieve this goal by promoting collaboration and coordination across different policies within the EU. As a result of the young FIDE seminar’s discussion, the

three contributions have opened a new perspective of geopolitical dimension of the EU competition and trade policies and three main priorities for Europe’s open strategic autonomy could be clearly outlined: investing in

digital autonomy and becoming a global leader in technology; increasing the international role of the EU towards a more sustainable trade policy; strengthening the application of EU competition rules.

Concerning the first priority, Digital Market Act regulation, adopted in 2022, represents a fundamental piece

of the legal foundations of the digital Europe of the future. In this sense, as it was mentioned in the contribution of M. Kaboré, the legal standards established in DMA will play a very important role in Europe’s goal of greater

technological autonomy, understood as open technological autonomy – digitalisation is necessarily global – and based on European values.

The ‘European way’ of doing business has been a success story for its industry and, as such, has benefited society as

a whole. This approach is reflected in Europe’s values and its single market principles: openness and inclusiveness, fostering competition, innovation, and free trade, and increasing efficiency. The concept of ‘open strategic autonomy’ encompasses all these principles and promotes a positive vision that builds on Europe’s strategic assets and remains grounded in its values.

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With the DMA, the European Union aims to lead competition in the digital market and to curb potential abusive

practices by Internet giants whose size transcends that of many national economies. Far from limiting innovation, Europe seeks to ensure that the development of the future digital economy is based on stronger guarantees for users – including commercial or business users – and for free competition.

As it was well explained by Hamidou Kaboré, PhD Researcher at University of Artois, the DMA provides the

legal definition of gatekeeper for large online platforms, under which fall practically all Big Tech companies,

and establish regulations for their operations in the EU internal market. This could seem like a ‘discriminatory’ measure, however, it targets specifically gatekeepers, as they are not simple business competitors but real ‘business

enablers’ therefore having specific obligations, that nonetheless apply equally for every company with this powerful

influence on the markets. The DMA aims at striking the gatekeepers’ power over who enters the market and how and, in general, their power to manage demand and supply interactions. Mainly, the DMA forbids the practice of self-preferencing and establishes the duty of granting multi-homing and interoperability. Moreover, it allows

businesses to access their data produced on the platform. The enforcement mechanism provides for Commission investigations and potential fines of up to 10% of the global revenues of gatekeepers.

So, the DMA reflects the Commission’s ambitions to build sovereignty through regulation on its digital space and

to reach autonomy by establishing fair competition and demolishing market barriers that will favor economic and industrial developments.

Concerning the second priority, it is necessary to be mentioned that trade policy for decades has played a key role in supporting the EU’s competitiveness and in influencing investment decisions in Europe. At the same time in the last ten years EU tried to renew its trade policy by achieving new objectives: increasing resilience

through diversification of imports; creating market opportunities for European companies; improving security and mitigating geopolitical risks; promoting more sustainable standards and ensuring a level playing field.

To achieve those objectives EU should continue to pursue a positive trade agenda that aims at increasing market

access in third countries as it is mentioned by Piotr Krajewski in his contribution, analysing the EU–Mercosur Association agreement.

This agreement not only will open the doors between two of the largest markets and will generate real opportunities

for businesses on both sides, but also will liberalise progressively the trade, thereby giving to the relevant economic sectors enough time to modernise and become competitive worldwide.

Last but not least, the EU–Mercosur agreement has a potential to advance climate action and environmental protection. In fact, as Piotr Krajewski, PhD Researcher at University of Amsterdam, mentioned the political

accord the EU and Mercosur reached in 2019 was among the first of its kind to include a reference to the Paris climate agreement. In Europe, however, there are doubts about the extent of this commitment, especially in view of the accelerating deforestation in Brazil in recent years.

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In fact, agreements such as the one proposed with Mercosur constitute the core of new European trade policy. Admittedly, each agreement of this type, taken individually, generally concerns only a very small part of the

European economy. This is, incidentally, an argument that is sometimes used to minimise the scope of a particular trade treaty, when criticism of sustainability or agricultural interests is too strong. But it is indeed through these

agreements that changes are introduced in relation to the general regime of rights, quotas and rules of international trade that are also defined by the agreements at the World Trade Organisation. And it is through their progressive accumulation that, in the end, the negotiated clauses produce significant inflections on the European economy.

At the end, concerning the third priority, we should say that based on the current discourse around open strategic

autonomy and the role of competition, it seems reasonable to infer that pursuing autonomy is unlikely to bring about any imminent ideological or policy shift under EU competition law soon. On the contrary, the concept of

autonomy seems to be expressly invoked to justify the current competition policy and enforcement strategy at the EU level: as the argument goes, more vigilant competition enforcement creates better conditions for market players, including for domestic companies. When understood in this way, open strategic autonomy could also be

equated with Europe’s ambitions to independently set and subsequently export its values and norms, inspiring

regulatory and enforcement actions in national competition jurisdictions as it was mentioned by Emmanuil Kolev, PhD Researcher at University of Sofia, in his contribution.

Young FIDE Seminar Topic 3: The European social law-by Lorenzo Cecchetti The topic of the third panel was to discuss European social law introduced by Anastasia Iliopoulou-Penot, Professor of University Paris II Panthéon-Assas. The three contributions presented concerned three different –

albeit to some extent interconnected – open issues and developments concerning European social law. Let me

thus introduce the authors and the three presentations. Mr Théodore Plat, a young practitioner from France and

ancien élève of the College of Europe, delivered the first presentation, titled ‘The effectiveness of social directives in the light of the Charter of Fundamental Rights of the European Union - a mirage on the social horizon?’, which

focused on the developments in the Court of Justice of the European Union (‘Court’)’s case law in that regard. Ms Eva Meyermans Spelmans and Mr Jesse Peters, both lecturers at the University of Amsterdam, analysed two pending legislative initiatives presented by the European Commission, adopting a novel approach. Their paper was titled ‘The True Price of Fast Fashion: How the Green Deal Can Contribute to Better Labour Conditions in

the Fashion Industry’. Mr Marc Steiert, PhD Researcher at the European University Institute in Florence, instead

examined the European Union (‘EU’) policy and regulatory approach to youth’s mobility, presenting a paper on ‘Individual Opportunity or Collective Threat to Cohesion? The Regulation of the Youth’s Mobility and Brain

Drain in the EU’s Legal Order’. These papers can be seen as complementary to each other. Such complementarity

does not regard only the particular perspective they adopt but also the methodology used in each research. Indeed, the first paper carried out an analysis centred on the Court’s case law, the second paper focused on the EU legislative procedure, whereas the third paper drew our attention, inter alia, to the Commission’s normative and practical initiatives. Jointly considered, these three papers shed light on the past, the present, and the future of EU social law.

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The paper written by Théodore Plat analysed the effectiveness of EU secondary law, with specific regard to

the effectiveness of ‘social directives’ (and, mainly, Directives 2000/785, 2003/88,6 and 2006/547) ‘in the light

of ’ the Charter of Fundamental Rights of the European Union (‘Charter’). As it seems clear from the outset, with ‘social rights’ reference is made to ‘workers’ rights’, on which the study mainly centres. Also, the Delphic expression ‘in the light of’ the Charter, frequently used on the Kirchberg plateau (not necessarily in a coherent

manner), here encompasses all situations where the Charter’s fundamental rights and the directives are used jointly. Most notably, the paper adopted a bipartite structure. In the first part, the author laid down an in-depth examination of the trajectory through which social rights have been granted effectiveness by the Court, taking the

relationship between the Charter and secondary law provisions as the principal lens of inquiry. The several phases

of the ‘emancipation’ of the Charter have been outlined with references to the well-known rulings in this regard, including Mangold,8 AMS,9 Egenberger,10 and Bauer.11 The Court’s rulings in Max-Planck,12 Cresco Investigation,13

and CCOO14 are also interestingly examined and associated with the doctrine of ‘positive obligations’.

In the second part, Théodore looked at the ‘limits’ and ‘ambiguities’ surrounding these judicial developments from both a theoretical and practical perspective. The main objective was to address one central question: is

the effectiveness of EU law enhanced in practice? Amongst the issues touched upon, suffice it to mention the

following ones: (a) the applicability of the direct effect test to the Charter’s fundamental rights; (b) the role played by the wording of the Charter’s provisions to this end; and (c) the distinction between the ‘core’ and ‘non-

essential elements’ of those fundamental rights. Specific attention was paid to the ‘horizontal direct effect’ issue, which – as rightly stressed in the analysis – is of primary importance for any study on fundamental social rights. Based on this analysis, the author advocated that the Court should reconsider its case law according to which

references to national and European legislation in the Charter’s provisions normally rule out their direct effect. The proposed reconsideration would contribute to enhancing the effectiveness of the EU fundamental social rights constitutionalised in the Charter.

I would argue that ‘effectiveness’, a term resulting from the title of the paper, is the leitmotif of Théodore’s work, which has the merit of shedding light on one of the major conundrums of EU social law, namely the absence

of a particular legal regime capable of distinguishing ‘fundamental social rights’ from ‘ordinary social rights’.15 5. Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. 6. Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time. 7. Directive 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast). 8. Judgment of 22 November 2005, Case C-144/04, Mangold, EU:C:2005:709. 9. Judgment of 15 January 2014, Case C-176/12, Association de médiation sociale, EU:C:2014:2 (AMS). 10. Judgment of 17 April 2018, Case C-414/16, Egenberger, EU:C:2018:257. 11. Judgment of 6 November 2018, Joined Cases C-569/16 and C-570/16, Bauer, EU:C:2018:871. 12. Judgment of 6 November 2018, Case C-684/16, Max-Planck, EU:C:2018:874. 13. Judgment of 22 January 2019, Case C-193/17, Cresco Investigation, EU:C:2019:43. 14. Judgment of 14 May 2019, Case C-55/18, Federación de Servicios de Comisiones Obreras (CCOO), ECLI:EU:C:2019:402 (CCOO). 15. Sophie Robin-Olivier, ‘Les droits sociaux fondamentaux dans l’Union européenne: quelle force juridique?’ in Ségolène Barbou des Places, Etienne Pataut, Pierre Rodière (eds), Les frontières de l’Europe sociale, Pedone, 2018, pp. 77-91, p. 78.

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The case law analysis in the paper showed the great activity performed by the Court in protecting and ensuring

the effectiveness of (fundamental) social rights, without overlooking the major open issues in that regard. It may be also stressed that the paper was ultimately based on an understanding of effectiveness as a synonym of ‘justiciability’. This understanding is not, however, the only dimension of effectiveness that deserves attention. We are indeed experiencing a convergence of both the Court’s and the legislator’s activity in developing the EU social

policy. As the author acknowledged in the conclusion, the European Pillar of Social Rights (‘EPSR’) can certainly contribute to the enhancement of the UE workers’ rights,16 provided that the Charter rights will be – one might

say – ‘taken seriously’. The second paper proved the importance of the EU legislator’s activity in guaranteeing the effectiveness of EU fundamental social rights, as we are about to see.

Eva’s and Jesse’s analysis indeed focused on the role that two pending legislative proposals adopted in the framework of the European Green Deal can play in better labour conditions in the fashion industry if a ‘true pricing’ approach were to be adopted. The two proposals under investigation are the Proposal for a Directive on

corporate sustainability due diligence (CSDD)17 and the Proposal for a Regulation prohibiting forced labour (FLR).18 Although the scope of their analysis was confined to the ‘fashion industry’, whose current model of

business poses severe issues to both social and environmental protection due to the exploitative nature of the ‘fast fashion’ phenomenon, other sectors of the economy can undoubtedly benefit from the recommendations to improve the ‘effectiveness’ of the two acts aired in this work.

The paper comprised two main sections. The first one examined the true pricing approach’s aims, methodology

and relevance. In a nutshell, this approach, elaborated by the True Price Foundation, aimed at resolving market failures resulting from a lack of transparency and remediation by eliminating the competitive advantage deriving from rights violations. Indeed, ‘negative externalities’ were defined as rights-based externalities in terms of

violation in the production process of internationally recognised fundamental rights. As clarified by the authors, a piece of EU legislation is in accordance with that approach if a three-limb test is satisfied. In a nutshell, the approach consists of three limbs: (a) incentivising all companies to adopt sustainable practices; (b) creating substantive obligations aimed at reducing the negative environmental and social/labour externalities; and (c) ensuring effective enforcement.

In the second section, the authors applied the ‘true pricing’ approach to the two proposals mentioned above, paying particular attention to the specific features of the fashion industry, among which lies ‘the complex and opaque nature of global fashion value chain’. They thus identified several ways to improve the effectiveness of

these proposals, which translated into a series of recommendations to the EU legislators. By way of example, as regards the CSDD, it was suggested to introduce proportionate obligations for enterprises, requiring responsible

16. On the role of the EPSR’s potential to improve the social output of the EU, see Sacha Garben, ‘The European Pillar of Social Rights: Effectively Addressing Displacement?’, 1 European Constitutional Law Review 14, 2018, pp. 210–230. 17. Proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937, COM/2022/71 final. 18. Proposal for a Regulation of the European Parliament and of the Council on prohibiting products made with forced labour on the Union market, COM/2022/453 final.

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purchasing decisions by enhancing transparency on the value chain and improving the civil liability scheme laid down in the proposal. Regarding the FLR, it was proposed to reverse the burden of proof to allow effective enforcement and introduce a system of remedies.

In my view, the paper’s topic is particularly timely, and the significance of the study by far transcends the two proposals examined and the fashion industry. Besides the specific recommendations formulated, the true pricing

approach could prove helpful in relation to any legislative proposal, especially those adopted in the context of the

European Green Deal or based on internal market legal bases. Assessing these proposals against the three limbs mentioned above would profoundly contribute to achieving the Green Deal’s objectives, and more generally, the Union’s ones, by contributing to the effectiveness of its legislative action. One might even argue that Green Deal

without a true pricing approach should rather be named ‘green washing’,19 since it will largely disregard and fail to address the negative environmental and social/labour externalities. Hence, why do we not proceduralise the

true pricing approach by elaborating a grid similar to that developed for assessing the respect of the subsidiarity principle within the EU legislative process?

This is not to say that social and environmental concerns are not taken into account already in this process. To some extent, any Explanatory Memorandum addresses those issues; beforehand, they are also examined in the Impact Assessment Report accompanying the proposals.20 Nonetheless, if the above-mentioned three-limb test

is translated into a concrete and turnkey grid, the effectiveness of the measures would be enhanced. In turn, this proposal for a ‘True Price Grid’ may contribute to ‘taking seriously’ the social and environmental objectives set out in Articles 8-13 TFEU, of which the EU legislature is obliged to take account in all phases of the legislative process.

Despite the different methodologies and subjects, both this analysis and the previous paper by Théodore underscore the necessity to ensure the effectiveness of fundamental labour rights protected at the international level and in the EU legal order. This holds particularly true considering that – as the three authors stressed – although we live

in a globalised society witnessing the rise (and now consolidation) of ‘private power’, these ‘constitutional norms’ are not directly binding upon private businesses. Furthermore, it is worth noting that Eva’s and Jesse’s work is

premised on the interrelatedness of environmental and social justice concerns, which is particularly evident in the fashion industry. The need of such a ‘holistic approach’, which is not a complete novelty and underlies the European Green Deal as well as other Union policies, lies at the core of the third paper.

Indeed, Marc’s paper examined the EU policy and regulatory approach to youth’s mobility and stresses the need

for ‘a more wholistic and sustainable regulation of mobility’. Most notably, the author outlined the trajectory of the Union’s regulation of intra-EU youth’s mobility from its origins to the present day. In doing so, the analysis

19. Please note that this is my personal take on the question just posed, do not blame the authors for this expression. 20. As regards the proposals examined in the paper, see, for instance, the Annex 4 – Identification and Assessment of Impacts, pp. 95-107, attached to Commission Staff Working Document Impact Assessment Report Accompanying the document ‘Proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937’, SWD/2022/42 final.

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does not overlook broader reflections about the ultimate rationale(s) of the Union’s regulatory activity in the social

field, including the assumptions upon which those origins were based and the twofold soul of any regulation of labour at the EU level (market-correcting vs market-creating function).

Remarkably, the study devoted specific attention to what may be defined as the ‘dark side’21 of the regulatory

framework of mobility in the Union, i.e. the so-called ‘Brain Drain’. In the author’s words, this phenomenon can be described as a situation where ‘workers moving to more prosperous regions, while allegedly leaving their already

disadvantaged home regions without human capital for catching up economically’. In brief, the two main research questions underlying the paper can be summed up as follows: How does the EU engage with the regulation

of the youth’s intra-EU mobility? Does it address brain drain and ‘drawbacks’ of free movement, including the perspective of the stayers?

The paper was structured into three sections. The first one examined the types of mobility at the core of the

European integration process, the rights conferred to workers, self-employed persons, and citizens, the rationales behind exercising these rights, and the allocation of competences between the Union and the Member States in

this regard. The author argued that such division of competences has come under strain and that a ‘sustainable’ regulation of mobility requires considering the perspective of both EU citizens exercising the free movement

rights and stayers. The second section engaged with the three tenets of intra-EU youth’s mobility regulation, such as the free movement provisions enshrined in the treaties – benefitting from a generous interpretation by the

Court –, the coordination of employment policy, and the European Social Fund. In the third section, the author identified three ways to render the regulation of youth’s mobility ‘more sustainable’.

I submit that the added value of the paper lies in the fact that the author rejects the thesis that the EU can only

promote mobility without addressing the perspective of the stayers due to the allocation mentioned above of competences. Indeed, the normative and practical resources identified in the third section are based on the use

of existing legal bases and funding schemes to create rights and opportunities for stayers, thereby addressing the

Brain Drain phenomenon. Amongst the ideas put forward in the paper, it suffices to recall the enhancement of

the role of Article 47 TFEU, Principle 4 of the European Pillar of Social Rights, and the European Social Fund Plus. No treaty reform is thus considered indispensable.

Nevertheless, the other side of the coin is that those proposals are inspired by what can be defined – in my opinion – as an output legitimacy logic.22 In practice, this means that untill the Union delivers good results, the

issues of Brain Drain and the stayers – increasingly experiencing the feeling of being ‘left behind’ – will probably

be alleviated. However, as soon as the Union support becomes temporarily insufficient – imagine an economic

downturn or a change in the policies pursued in Brussels – those issues swiftly re-emerge. In a recent EU Law Live podcast, Professor Weiler has reminded us that an integration primarily based on output legitimacy is, sooner 21. This term was not used in the paper. 22. On this concept, see Fritz W Scharpf, Governing in Europe: Effective and Democratic?, Oxford University Press, 1999, pp. 6-42; and Vivien A Schmidt, ‘Democracy and Legitimacy in the European Union Revisited: Input, Output and ‘Throughput’’, 1 Political Studies 61, 2013, pp. 2-22.

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or later, destined to fail.23 Strengthening the input legitimacy dimension of the European integration process is

also of pivotal importance, allowing ‘the principal stakeholders, the people of the member states to feel they are

in control’.24 These considerations may play a role in reflecting on how to address the issues at the centre of this third paper.

23. EU Law Live Podcasts, ‘A conversation with Joseph Weiler (Part I) on the past, present and future of European integration’, 3rd November 2021. 24. Ibid.

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Discretionary power – a revered instrument in the toolbox of autocrats Jonas Bornemann1 Discretion is a widely used element of autocratic reforms in Europe and elsewhere. This is no coincidence. Discretion proffers both practical and strategic advantages for executive actors pursuing an autocratic agenda. In practical terms, it establishes a mode of executive decision-making authority that is rather easily abused for the

purposes of autocratic reform. Strategically, discretion permits autocrats to undermine the authority of courts and

to benefit from an air of lawfulness in doing so. Against that backdrop, the view can be put forward that discretion constitutes a revered instrument in the toolboxes of most (if not all) autocrats.

This Long-Read will draw attention to discretion as a feature of autocratic reform. It will discuss both the advantages

that discretion generates for autocratic lawmakers and the way in which European courts have responded to it. The Long-Read will illustrate its findings by way of reference to reform measures put into practice in Poland and

Hungary in recent years. It will proceed in four steps. First, it highlights the fact that autocratic reforms tend to

promote a mode of unfettered executive decision making (1.). Subsequently, in a second step, the Long-Read argues that discretion often serves as a smokescreen for autocratic intentions underpinning reforms at national

level, outlining moreover the way in which European courts have responded to such a strategy of disguise (2.).

Third, it focuses on the rhetoric of discretion used by autocratic actors to undermine the authority of courts (3.), before, fourth, briefly summarising the role of discretion as a recurrent building block of autocratic projects (4.).

1. Mirages of discretion: debunking autocratic claims of absolute power It is often acknowledged that the term ‘absolute discretion’ should best be viewed as a contradiction in terms. Conceptually, the notion of discretion does not seem to equate with unfettered freedom of choice. Rather, it resonates with a mode of decision making that is nested in and delineated by standards of law. While instances of very wide discretion certainly exist in administrative systems throughout Europe, it can be viewed as a pan-

European trend that ‘absolute’ discretion finds itself gradually subjugated to standards of legality and (some form of ) judicial review. Yet, by introducing instances of unfettered discretionary power for illiberal purposes, autocratic lawmakers effectively defy this pan-European development.

Autocratic reforms in Europe tend to introduce instances of discretionary power that are virtually unfettered. A specific limb of Hungarian police law, for instance, permitted the competent minister to authorise surveillance 1. Assistant Professor of European Law, Rijksuniversiteit Groningen.

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actions for national security purposes, without however imposing the requirement of involving a court to that end and very limited substantive or procedural limitations to this power. Without beating about the bush, in

Szabo, the European Court of Human Rights (ECtHR) clarified that, in matters affecting fundamental rights, such an instance of absolute discretion ‘would be contrary to the rule of law, one of the basic principles of a democratic society’.2 The Strasbourg court highlighted that respect for fundamental rights, in casu the right to privacy, presupposes that the law in question is of a certain quality. Accordingly, the relevant national legal framework must include ‘adequate and effective safeguards and guarantees against abuse’.3 While Contracting

States have a certain margin of appreciation in this regard, the requirement that the law in question is of a certain

quality equally underpins the court’s perspective on instances of executive discretion. National law must therefore indicate the scope of any such discretion and instruct the manner of its exercise with ‘sufficient clarity’ to give

individuals ‘adequate protection against arbitrary interference’.4 To be sure, this is a relatively low bar to clear. Absence of arbitrariness need not necessarily translate to prudent or fair reasoning. It does, however, impose a

certain minimum standard of clarity on national law that precludes the existence of unfettered executive discretion. Still, the distinction between instances of discretion, on the one hand, and virtually unfettered executive power, on the other, is notoriously difficult to draw – and autocratic lawmakers know it. It is therefore no coincidence that

autocratic reforms often promote instances of discretion that formally include some limits to executive power but make sure that this does not translate to effective barriers in practice. This effect featured prominently in relation to reforms to the retirement regime applicable to judges in Poland. The legal framework established at the time

authorised the minister of justice to prolong judges’ terms of office on a discretionary basis. To that end, the relevant legal framework stipulated that the minister ‘may consent’ to a judge remaining in office by ‘having regard

to the rational use of the staff of the ordinary courts and the needs resulting from the workload of individual courts’ (Art. 69 (1b) of the Law on the Ordinary Courts). On the one hand, it is not inconceivable to read this as a

standard of rationality limiting the Minister’s discretion. On the other hand, as the Court of Justice rightly noted, such limitations are ‘too vague and unverifiable’ to serve as meaningful limits to discretionary decision making that are, moreover, not subject to any judicial scrutiny.5 In fact, this new legal regime amounted to an instance of

unfettered executive power to cherry pick those judges that should be allowed to remain in office.

2. Discretion – the perfect disguise? For autocratic lawmakers, discretion may often serve as a legal disguise. Instead of explicitly drawing out the illiberal workings of reform in legal text, it may be preferable for autocratic lawmakers to couch their true intentions in discretionary legal arrangements, such as vaguely termed preconditions for executive action or decision-making

latitude in opting for a specific legal consequence. In this vein, discretion may be a means to avoid paper trail in 2. Judgment of the ECtHR of 12 January 2016, Szabó and Vissy v. Hungary (application no. 37138/14, para. 65. 3. Judgment of the ECtHR, Szabó and Vissy v. Hungary, para. 59. 4. Judgment of the ECtHR, Szabó and Vissy v. Hungary, para. 65. 5. Judgment of 5 November 2019, Case C-192/18, Commission v. Poland, EU:C:2019:924, para. 122.

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statutory law. As a corollary, it will often be difficult (if not impossible) to grasp the autocratic effects of reform by

merely looking at the legal framework as such. Instead, it would be necessary to equally assess the way in which powers are used in practice to detect the autocratic workings of reforms.

In Europe, such a strategy of disguise has been gleefully put to practice to ward off interventions of European courts. By introducing legal arrangements that broadly rest on discretionary power, autocratic lawmakers may be able to aggravate scrutiny of European courts, rendering it difficult to assess the autocratic nature of such reforms

in the abstract. In the context of changes to the disciplinary regime applicable to judges in Poland, for instance,

Polish government agents went to great lengths to argue before the ECJ that such a legal arrangement would not, in any way, be used by the competent authorities to undermine judicial independence, producing more than 2000 pages of documents to show for it (at para. 78).6 In practical terms, this may be viewed as a deliberate attempt

to paper jam the Court. On an intermediate level of analysis, however, it illustrates how, for judicial actors at European level, it can be rather difficult to apprehend the effects of national reform once the latter entails vastly discretionary legal arrangements.

This suggests that discretionary powers may serve as a smokescreen to disguise autocratic motives. At least for

some time, it permits lawmakers to benefit from the legitimacy associated with lawful conduct by sweeping their illiberal intentions under the carpet of arguably lawful reforms. Unlike more patent institutional attacks on courts

(such as institutional hijacking or court-packing), discretion allows for comparably subtle mode of undoing checks to executive power. To be sure, European courts have found ways to dispel this strategy of disguise. However, the time that it takes for judges – be it at national or European level – to recognise the effects of reforms that largely revolve around discretionary decision-making may play into the hands of autocratic actors.

3. Inroads to judicial authority and the autocratic rhetoric of discretion One of the reasons why discretion features prominently in autocratic reforms may be rooted in the fact that it

allows for the weakening of judicial authority. Discretion does not just establish a mode of relative executive

freedom but corresponds likewise with a method of limited judicial review. Conceptual differences among national

traditions notwithstanding, this would preclude courts from superseding executive decision-making in substance. Against this backdrop, it comes as no surprise that autocratic lawmakers gleefully advocate for discretionary

power in situations where courts would otherwise assume a powerful role. Such an approach featured already in the Szabo judgment. In this litigation, the Hungarian government had argued that executive authorities would be better placed to authorise surveillance measures than judges and, for that reason, there should be a measure of discretion.7 This is not one off. Instead, the argument can be made that autocratic lawmakers endorse the language

of discretion in a strategic fashion, i.e., as a justificatory argument to weaken the authority of judges more broadly.

6. Judgment of 15 July 2021, Case C-791/19, Commission v. Poland, EU:C:2021:596, para. 78. 7. Judgment of the ECtHR, Szabó and Vissy v. Hungary, para. 76.

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In the field of asylum law, for instance, the Hungarian government argued before the ECJ that limited judicial review would be justified by the level of complexity that asylum decision-making entails. According to the

government’s submission, this complexity could only be mastered by virtue of expertise which may exclusively be found in highly specialised administrative migration authorities.8 This suggests that the Hungarian government

employed the rhetoric of discretion to justify reforms establishing a method of limited judicial review.9 While

the ECJ rejected this argument based on the Procedures Directive and Article 47 of the Charter of Fundamental Rights, this illustrates how discretion may be abused by autocratic lawmakers to justify the undermining of judicial authority. In its judgment in Torubarov, the ECJ acknowledged as much, explicitly rebutting the arguments of the Hungarian government that there should be ‘discretion’ for executive authorities in the field of asylum law.10

4. Discretion as a tool of autocratic reform As the preceding sections suggest, discretion may represent a recurrent and revered element of autocratic reform. In this context, discretionary power proffers at least three advantages. It may, first, be used by autocratic lawmakers

to establish a mode of virtually unbridled executive decision-making authority. As the icing on top of the autocratic

cake, second, reforms that introduce discretion may equally undermine the authority of courts, namely where

judges were previously in a position to carry out full judicial review and would, following autocratic reform, be limited to marginal review. Third, discretion may act as a smokescreen, concealing the autocratic intentions underpinning reforms vis-á-vis, among others, European courts. While the latter have found ways to dispel such

a strategy of autocratic lawmaking, these advantages seem to substantiate the impression that discretion is likely to remain a prominent feature of autocratic reform.

8. See Advocate General Bobek’s Opinion of 30 April 2019 in Case C-556/17, Torubarov, EU:C:2019:339, para. 79. 9. Jonas Bornemann, ‘The Role of Member State Governments in Migration Litigation before the ECJ’, in European Journal of Migration and Law, 2020, pp. 541-570, at p. 563. 10. Judgment of 29 July 2019, Case C-556/17, Torubarov, EU:C:2019:626, para. 75.

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Squaring the Circle:The Quest for an Open,Sustainable and Assertive Trade Policy and the EU-Mercosur Trade Agreement Piotr Krajewski 1 Introduction The EU-Mercosur Association Agreement (AA) constitutes a hugely ambitious endeavour. If concluded, the

agreement would create the largest free-trade area in the world covering a population of almost 720 million. As

an association agreement, the deal consists of a trade liberalisation and a political cooperation part. Both sides have reached an agreement in principle as to the two parts – in 2018 for the political and cooperation pillar, and

in 2019 for the trade pillar. The Agreement has not been signed or concluded at the time when this piece is being written, although we have recently seen numerous high-level political efforts to seal the deal, the latter gaining pace after the election of Luiz Inácio Lula da Silva as President of Brazil.

The Agreement was formally negotiated over the course of almost 20 years (1999-2019) which means that in the meantime the EU has thoroughly revised its trade policy framework. The Agreement has generated a lot of

controversy, mostly with respect to its environmental consequences and broader compliance with climate policy objectives of the EU.2 These concerns were only exacerbated by disastrous deforestation of the Amazon rainforest

pursued by the administration of the former Brazilian President, Jair Bolsonaro, sometimes colourfully described as ‘the Trump of the Tropics’. In this connection, the question of trade and sustainable development can be seen

as a focus point for the transformation of the EU trade policy paradigm as well as an illustration of the EU’s normative aspirations and limits thereof in foreign policy. Against this backdrop, this piece examines selected trade-related climate commitments enshrined in the Agreement and puts them in the context of the current

EU trade policy paradigm described as Open, Sustainable, and Assertive Trade Policy.3 I argue that framing of

trade-related climate policy commitments by the European Commission obfuscates difficult trade-offs between

economic opportunities and environmental costs that might result from the conclusion of the Agreement. In this connection, the Commission arguably overplays the importance of Trade and Sustainable Development (TSD) provisions and wrongly suggests that the pursuit of trade liberalisation cannot come into conflict with EU climate policy ambitions.

1. PhD candidate, University of Amsterdam. 2. James Harrison, Sofia Paulini, ‘The Trade and Sustainable Development Chapter in the EU-Mercosur Association Agreement. Is it fit for purpose?’, ClientEarth, July 2020; Guillaume Van der Loo, ‘Mixed’ feelings about the EU–Mercosur deal: How to leverage it for sustainable development’, European Policy Centre, 14 April 2021. 3. European Commission, ‘Trade Policy Review – An Open, Sustainable and Assertive Trade Policy’, 18 February 2021.

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EU-Mercosur Agreement and climate policy objectives Trade and Sustainable Development chapters included in EU trade agreements have constituted the most prominent element aimed at ‘greening’ these agreements, aiming to reconcile trade liberalisation with climate policy provisions and safeguard space for regulation in public interest. The substance of the TSD chapter in the

finalised version of the EU-Mercosur AA does not significantly differ from those included in other comprehensive agreements negotiated around that time, such as the EU-Japan Economic Partnership Agreement or the EU-

Singapore Free Trade Agreement.4 The Chapter in question codifies the right to regulate in the public interest,

in line with the paradigm of EU trade policy since 2015 (Article 2(1) of the TSD Chapter). A closely related provision enshrines the non-regression principle whereby the Parties must not weaken the regulatory standards in order to encourage trade or investment (Article 2(3) of the TSD Chapter). The chapter also includes a reference

to multilateral environmental conventions and the Paris Climate Agreement. In this connection, the Parties commit to effectively implement the Paris Agreement, to shape trade policies in a way that will enable a reduction in greenhouse gas emissions, and to cooperate on trade-related climate change issues (Article 6 of the TSD

Chapter). Finally, the TSD chapter establishes a special dispute resolution mechanism (as opposed to other

parts of the agreement). In the event of a dispute that has not been resolved through dialogue and consultation, the Parties may request the establishment of a Panel of Experts that would produce a report containing the assessment of facts, findings, and recommendations (Article 17(9) of the TSD Chapter).

There is some significance to the fact that before the EU-Mercosur AA was finalised neither Mercosur as a block nor its members had concluded a trade agreement with a dedicated chapter dealing with questions of climate policy.5 That being said, the chapter suffers from several deficiencies. Crucially, the ordinary dispute settlement

mechanism does not cover the TSD part of the agreement (Article 15(5) of the TSD chapter). Likewise, in contrast to the newly updated approach of the Commission to TSD obligations6, there is no possibility to

apply sanctions for non-compliance with TSD commitments. This stands in contrast to enforcement of TSD commitments enshrined in the recent EU-New Zealand Free Trade Agreement.7 Some commentators have

also criticised the vague and aspirational language of TSD obligations, for instance with respect to the “effective implementation” of the Paris Agreement, claiming that it would be impossible to determine a violation of this provision on the part of one of the parties.8

In this context, it is important to reflect on the inherent limitations of TSD provisions seen as an instrument of climate policy. Examining the nature of the Trade and Sustainable Development chapters in Opinion 2/15, the

Court of Justice pointed out that provisions outlined therein do not aim to harmonise labour or environmental 4. The text of the Chapter as per the Agreement in principle reached in 2019 is available here. 5. LSE Consulting, ‘Sustainability Impact Assessment in Support of the Association Agreement Negotiations between the European Union and Mercosur’, December 2020, p. 67. 6. European Commission, ‘The power of trade partnerships: together for green and just economic growth’, 22 June 2022. 7. Article 26.2 of the EU-New Zealand Free Trade Agreement. 8. Marco Bronckers, Giovanni Gruni, ‘Retooling the Sustainability Standards in EU Free Trade Agreements’ (2021) 24 Journal of International Economic Law 25, 29.

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standards but instead are meant to ensure that trade liberalisation would not affect the existing regulatory standards or threaten compliance with multilateral environmental or labour conventions.9 The Court went as far as to claim that trade liberalisation is made conditional on respect for international environmental commitments.10 Such

framing is arguably wrong because it is not possible to suspend trade liberalisation for non-compliance with TSD

provisions, at least when it comes to the EU-Mercosur AA.11 At any rate, even though some of these provisions create self-standing obligations, many of them are aspirational or simply restate existing international obligations without adding normative substance.12 This means that they would be unfit to tackle the most controversial

issue related to the agreement, namely deforestation triggered by increased agricultural production in Mercosur countries and increased transport emissions associated with growing trade volumes.

The most recent Sustainability Impact Assessment for the EU-Mercosur AA likewise emphasised that the most pressing sustainability concerns would above all require legislative action on the part of Mercosur countries.13 With respect to the Commission, it might be politically difficult to admit limited powers of the EU when it comes

to tackling deforestation in Latin America, especially when the Commission tries to convince its institutional partners in the Council and the Parliament that the conclusion of the AA could be squared with sustainability ambitions enshrined in the Trade Policy Review of 2021 and the EU Green Deal.

In this context, addressing the findings of the SIA, the Commission chose to emphasise the potential of unilateral

measures that aim to address the concerns at the intersection of trade and environmental policy.14 This approach is also in line with the current trade policy paradigm as outlined in the Trade Policy Review of 2021 where

the Commission singled out the importance of unilateral instruments such as the Carbon Border Adjustment

Mechanism and the Deforestation Regulation.15 These instruments should be viewed in the context of trade

agreements because they allow the EU to apply extraterritorially its regulatory standards in a more effective way

than through TSD chapters. In this sense, they demonstrate that in the realm of trade policy, the EU is willing to soften its principled and somewhat sanctimonious emphasis on multilateralism and harness its market power

to pursue long-time strategic objectives defined by political actors, at least in the realm of trade policy. However, these instruments still do not make it possible to fully alleviate climate policy concerns associated with the EUMercosur deal. For instance, the range of commodities covered by the Deforestation Regulation is narrower

than a range of goods falling under trade liberalisation in the EU-Mercosur deal.16 The question of emissions

9. Opinion of 16 May 2017, 2/15, EU:C:2017:376, paras. 163-166. 10. ibid. 11. Gracia Marín Durán, ‘Sustainable development chapters in EU free trade agreements: Emerging compliance issues’, (2020), 57, Common Market Law Review, Issue 4, pp.1 1047-1048. 12. Jessica C Lawrence, ‘The EU in the Mirror of NPE: Normative Power Europe in the EU’s New Generation Trade and Investment Agreements’ in Csongor István Nagy (ed), World Trade and Local Public Interest, vol 19 (Springer International Publishing 2020) 46. 13. LSE Consulting, Sustainability Impact Assessment, p.337. 14. European Commission Services’ Position Paper on the Sustainability Impact Assessment in support of Negotiations for the Trade Part of the European Union-Mercosur Association Agreement, March 2021, p.10, 15. European Commission, ‘Trade Policy Review’, p.13. 16. Regulation (EU) 2023/1115 on the making available on the Union market and the export from the Union of certain commodities and products associated with deforestation and forest degradation, OJ L 150, 9.6.2023, p. 206–247, Annex 1.

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stemming from transport of goods remains concerning and would become more acute if the Agreement delivers on its promises and substantially increases trade volumes between the EU and Mercosur.

As a final note, it is important to mention that in an attempt to address sustainability concerns, the Commission

has been negotiating with Mercosur a Joint Instrument concretising obligations outlined in the TSD chapter. According to the textual proposal of the Instrument, it would constitute a statement of the parties outlining an agreed interpretation of the treaty as understood in Article 31 of the Vienna Convention on the Law of Treaties.17

As such, it would not add new normative substance to the Agreement in principle which seems consistent with both the parties trying to avoid reopening the negotiations. On the other hand, some of the provisions of the Joint Instrument arguably go beyond the interpretation of the existing TSD commitments. It remains to be seen if the Joint Instrument is ever agreed and if the proposal will correspond to the final version.

Conclusion Substantive concerns over the compliance of the Agreement with EU climate policy are difficult to dismiss. TSD

commitments set out in the agreement are largely aspirational and symbolic; at the same time, there are inherent limits to what this kind of commitments can achieve, especially when it comes to persuading (or compelling)

EU trade partners to change their domestic policies. The impact assessment studies have demonstrated negative, if limited, impact of the Agreement on agriculture-driven deforestation.18 In turn, the Commission argued that technological changes and increased regulatory measures will alleviate these concerns.19

In my view, the Commission should more candidly discuss difficult trade-offs between economic growth and climate action in the context of trade policy and not overplay the importance of aspirational commitments

enshrined in TSD chapters. Claiming that these commitments make it possible to promote economic growth and

climate policy at the same time amounts to cakeism and does not facilitate an honest debate about redistributive consequences of the green transition. I do not mean to dismiss the importance of promoting economic growth

and its potential to reduce poverty and elevate standards of living, both in Mercosur and the EU. However, the environmental costs of these opportunities should be discussed more openly. This would also reinforce the

credibility of normative aspirations of EU trade policy, focusing the attention of policymakers on substance rather than on rhetoric.

17. EU-Mercosur Joint Instrument, Draft Document. 18. LSE Consulting, Sustainability Impact Assessment, pp. 103-105. 19. European Commission Services’ Position Paper on the Sustainability Impact Assessment, pp. 5-6.

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Opportunity or Threat to Cohesion? Brain Drain and Young People’s Geographical Mobility in the EU Marc Steiert 1 South-North migration in the EU returned unexpectedly during the euro-crisis accompanied by East-West

post-enlargement migration. This phenomenon was characterised by comparatively young and increasingly

skilled migrants.2 These migrants were motivated by an asymmetric unemployment crisis and the segmentation of domestic labour markets. Yet the EU also gradually promoted young people’s geographical mobility as an

employment policy instrument,3 which led to the EU being criticised for promoting Brain Drain.4 Brain Drain can be understood as ‘a tendency for human capital to agglomerate where it is already abundant’5. In the EU, this

often alludes to young, skilled EU citizens moving to more prosperous regions leaving their disadvantaged home regions without the human capital to catch up economically.

I take this critique as a starting point to explore how the EU regulates young people’s geographical mobility. I only discuss intra-EU geographical mobility, whereas EU migration law is becoming increasingly important with regard to the distribution of labour due to our ageing society and emerging skills shortages. My LongRead, therefore, offers three takeaways: first, I emphasise that focusing only on free movement law is too narrow

for understanding geographical mobility and its shortcomings. We should move towards a broader lens that analyses the regulation of intra-EU, geographical mobility. This lens also allows to move beyond this LongRead’s focus on the young generation. Second, I highlight the instruments regulating young people’s geographical

mobility, that is the regulatory framework of the Brain Drain criticism, and stress that this framework promotes

mobility without much regard for the perspectives of those who do not or cannot cross internal borders. Third, the Brain Drain criticism demonstrates that the division of tasks between the EU creating a market corrected by the Member States is also under strain in the free movement of persons.6 We need a more sustainable regulation of geographical mobility that accounts for the Union’s social and economic objectives. This more sustainable

1. Ph.D. Researcher in EU Labour Law, European University Institute. I would like to thank Maria Fartunova-Michel and Ivan Stoynev for organizing the Young FIDE Seminar 2023. I am also very grateful to Anastasia Iliopoulou-Penot, Lorenzo Cecchetti, Théodore Plat, Eva Meyermans Spelmans, and Jesse Peters for our reflections on EU social law in Sofia. 2. Jean-Michel Lafleur and Mikołaj Stanek (eds), South-North Migration of EU Citizens in Times of Crisis (1st edition, Springer International Publishing 2017). 3. European Commission, ‘COM (2010) 477 Final Youth on the Move - An Initiative to Unleash the Potential of Young People to Achieve Smart, Sustainable and Inclusive Growth in the European Union’. 4. Reflected by, e.g., Council of the European Union, ‘Council Decision 2015/1848/EU - of 5 October 2015 - on Guidelines for the Employment Policies of the Member States for 2015, OJ L 268, 15.10.2015, p. 28–32’. 5. Jacob A Hasselbalch, ‘Framing Brain Drain: Between Solidarity and Skills in European Labor Mobility’ (2019) 26 Review of International Political Economy 1333. 6. Diamond Ashiagbor, ‘Unravelling the Embedded Liberal Bargain: Labour and Social Welfare Law in the Context of EU Market Integration’ (2013) 19 European Law Journal 303.

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approach should promote geographical mobility’s take-up, but also the empowerment in the labour market of those who do not or cannot cross internal borders. I identify exemplary sources that can point into this direction with regard to the, albeit limited, group of young people.

Beyond Free Movement Law – Three Tenets Regulating Young People’s Geographical Mobility in the EU The legal analysis of intra-EU geographical mobility tends to look at free movement law strictly understood, i.e., the free movement rights created by EU primary law, secondary law adopted thereunder, such as Regulation

492/2011/EU and Citizenship Directive 2004/38/EC, and their interpretation by the EU’s Court of Justice. This scholarship is an important contribution to European integration given the central role and successful Europeanisation of the fundamental freedom to move. However, it does not capture the entire regulatory framework of geographical mobility and, in particular, its shortcomings. It focuses on the individual dimension of mobility, while its aggregate regulation is not comprehensively taken into account.

Young people’s geographical mobility in the EU operates in an, at least, three-fold regulatory framework. First, the right to move of course enables geographical mobility. Its many manifestations constitute the legal framework for the individual to engage with geographical mobility. The famously abstract definition of work under today’s

Article 45 TFEU in C-66/85 Lawrie-Blum, for instance, very practically rejected the domestic request to exclude a trainee, an archetype of youth employment, from the work-related right to move.7 This inclusive attitude towards

young, marginalised workers was confirmed in decisions such as C-109/04 Kranemann, although C-357/89

Raulin and C-3/90 Bernini give domestic courts some discretion to specifically consider youth employment as not constituting genuine and effective activities, i.e., as being non-economic.8 For example, they can assess whether

a trainee has sufficiently ‘familiarised’ themselves with their work.9 Similarly, C-293/83 Gravier developed a right to learning mobility. Although often understood as a citizenship right,10 this right was justified by the

employment policy objective of learning mobility facilitating labour mobility,11 and has notably justified the EU’s vocational training action programmes, such as Erasmus+.

This link with vocational training policy leads to the second EU instrument regulating young people’s geographical mobility: EU coordination of employment policies. Youth employment and young people’s geographical mobility

are indeed at the heart of the EU’s employment strategy, including the coercive European Semester, which yields capacity to Europeanise domestic regulation in the field.12 The EU response to the euro-crisis, however, illustrates 7. Judgment of 3 July 1986, C-66/85, Lawrie-Blum, EU:C:1986:284. 8. Judgment of 26 February 1992, C-357/89, Raulin, EU:C:1992:87; Judgment of 26 February 1992, C-3/90, Bernini, EU:C:1992:89. 9. C-3/90 Bernini (n 38) para. 16. 10. E.g., Paul Craig and G De Búrca, EU Law: Text, Cases, and Materials (Sixth edition, Oxford University Press 2015) 24. Citizenship of the European Union. 11. Judgment of 13 February 1985, C-293/83, Gravier, EU:C:1985:69 para. 23; Gisella Gori, Towards an EU Right to Education (Kluwer Law International 2001) 41. 12. Ever since, European Council, ‘Extraordinary European Council Meeting on Employment, Luxembourg, 20 and 21 November 1997, Presidency Conclusions, 1998 Employment Guidelines’. On the Semester, inter alia, Council of the European Union (n 34).

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how little this tenet has been mobilised to support a more equal take-up of geographical mobility and the situation of those not crossing internal borders, which it can theoretically address. From 2010 onwards, the Commission recommended that youth employment policy should consist, inter alia, in the promotion of geographical mobility

and the flexibilisation of young people’s labour rights,13 later identified as a push factor for crisis mobility.14 Young

workers have been a target of deregulatory austerity policies,15 and the Brain Drain criticism inextricably links

to this episode. At a time when the free movement rights of learners and jobseekers, future young workers, were

retrenching,16 the active tenet of the EU’s promotion of geographical mobility consisted of ‘deregulation at home’ leaving both those who moved and those who did not in more vulnerable labour market positions. After 2013, the focus has shifted slightly and gradually away from regression through the adoption of a specific regulatory framework and quality standard for youth employment policies in the European Youth Guarantee. This guarantee also included geographical mobility and a second iteration has been adopted in 2020 in the Revised European Youth Guarantee. It, however, still struggles to simultaneously promote geographical mobility, make its take-up more equal, and keep sight of those who do not or cannot cross the EU’s internal borders.

The third tenet that can be mobilised in the context of regulating young people’s geographical mobility are

the EU’s structural funds, in particular the European Social Fund Plus (ESF+). Their objective of economic, social and territorial cohesion appears to make them the appropriate forum for promoting employment prospects throughout the EU – both for those who cross internal borders and those who do not or cannot. However, their

impact is currently constrained by their limited resources, the questionable future of NextGeneration EU’s increase

in resources, and the fact that the Member States apply for EU funding under the partnership principle, which restricts the EU’s ability to target its financial resources to youth employment policy. The imbalance of these three tenets of mobility regulation lies in the contrast between the increasing EU promotion of youth mobility and its

limited capacity to support the creation of employment prospects, both abroad and at home, thus pushing the EU’s regulatory paradigm towards a one-sided and often passive promotion of geographical mobility.

Two Exemplary Sources for a More Sustainable Regulation of Young People’s Geographical Mobility The aim of this third section is not to define a more sustainable regulation of intra-EU geographical mobility, nor to describe how it could be developed, but to point to existing, exemplary sources that can lead into this direction with regard to youth mobility.

Normatively, the neglected Article 47 TFEU, unchanged since 1957, intrigues. This provision, within the fundamental freedom to move, calls for a common exchange programme for young workers, a specific regime

13. E.g., European Commission, ‘COM (2011) 933 Final - Youth Opportunities Initiative’. 14. Julia López López, Alexandre de la Court and Sergio Canalda, ‘Breaking the Equilibrium between Flexibility and Security: Flexiprecarity as the Spanish Version of the Model’ (2014) 5 European Labour Law Journal 18. 15. E.g., Jenny Julén Votinius, ‘Young Employees: Securities, Risk Distribution and Fundamental Social Rights’ (2014) 5 European Labour Law Journal 366. 16. On learners, Judgment of 18 November 2008, C-158/07, Förster, EU:C:2008:630. On jobseekers, Judgment of 15 September 2015, C-67/14, Alimanovic, EU:C:2015:597.

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for their geographical mobility. Although it has never been applied or interpreted, the provision’s history points

to a fascinating source. If the free movement of workers relies on the principle of equal treatment, is not Article 47 TFEU a call for ‘further action to support the movements’ of young workers?17 Although rejected by the

Member States, the early Commission sought to develop this provision by creating a support structure for trainees’ geographical mobility.18 This underlines that the current one-sided and often passive promotion of young

people’s geographical mobility is not architecturally rooted but relies on a politically chosen understanding of free movement. Instead, Article 47 TFEU gives space for thinking about a regulation of young people’s geographical

mobility that enables access to the same general free movement rights as others, while allowing to address the specific risks that come with youth mobility.

Practically, the European Social Fund Plus is a case in point for strengthening the EU’s capacity to promote the employment prospects of those young people who do not cross internal borders. For the first time, Article 7(6)

of Regulation 2021/1057/EU includes an obligation for each Member State to allocate an ‘appropriate share’ of ESF+ shared management resources to youth employment.19 Those Member States with a rate of young people

not in employment, education nor training above the Union average are even obliged to allocate over 12.5% of these resources to youth employment. The implementation of this promising obligation, however, is limited by institutional practice as the Commission accepts a variety of appropriate investments ranging from none, such as

in Denmark, Poland or Czechia, to substantial commitments of those not covered by the 12.5% obligation.20 This

undermines this youth employment conditionality’s potential to complement the regulation of young people’s geographical mobility with a targeting of EU funds at youth employment policy.

In summary, this Long-Read highlights the importance of moving from free movement law to the regulation

of geographical mobility through the concrete example of Brain Drain and the EU’s role in young people’s geographical mobility. What matters is moving to a more sustainable regulation of geographical mobility. It

may be the task of scholars and policymakers to work out what such a more sustainable regulation of mobility should look like. The Brain Drain criticism underscores that we have not yet reached this stage. I also underline some exemplary sources for moving in this direction with regard to young workers, although a more sustainable

regulation of geographical mobility is likely to imply broader changes to the EU’s constitutional set-up, such as a

strengthening of its financial employment policy aspects, or greater engagement with the efforts of local, regional, national and global regulators in this field.

17. Rolando Quadri, Riccardo Monaco and Alberto Trabucchi, Trattato Istitutivo Della Comunita Economica Europea : Commentario. (Giuffre 1965) Articolo 50. 18. Commission Européenne, ‘V/COM(62) 31 Final - Proposition de La Commission Pour Règlements et Directives Concernant Les Premières Mesures Pour La Réalisation de La Libre Circulation Des Travailleurs Frontaliers et Des Travailleurs Saisonniers à l’intérieur de La Communauté Dans HICA.H.CM2.1964.1160.1’. 19. Shared managements accounts for almost all ESF+ resources. (EUR 87 319 331 844 of the ESF+’s financial envelope for 2021-2027 of EUR 87 995 063 417). European Parliament and Council, ‘Regulation 2021/1057/EU of the European Parliament and of the Council of 24 June 2021 Establishing the European Social Fund Plus (ESF+) and Repealing Regulation 1296/2013/EU, OJ L 231, 30.6.2021, p. 21–59’ Article 5. 20. The Partnership Agreements can be retrieved here, accessed 22 March 2023.

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HIGHLIGHTS OF THE WEEK

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ISSUE Nº7 11-15 DECEMBER 2023

Preliminary ruling request concerning the related rights of artistic personnel in the Belgian National Orchestra Monday 11 December

Official publication was made of a preliminary ruling request from the Conseil d’État (Belgium) lodged on 15 September 2023 pertaining to the related rights of artistic personnel in the Belgian National Orchestra (BNO): ONB and Others (C575/23).

Read on EU Law Live

Preliminary ruling on the power of national competition authority to access private correspondence visà-vis right to freedom and confidentiality, published in OJ Monday 11 December

A request for a preliminary ruling from the Administrativen sad Sofia-Oblast (Bulgaria), lodged on 6 October 2023, concerning mainly the interpretation of Directive (EU) 2019/1 empowering the competition authorities of the Member

States to be more effective enforcers and to ensure the proper functioning of the internal market was officially published in the OJ: Ronos (C-619/23). Read on EU Law Live

Belarusian steel company’s action for annulment against Council measures regarding Belarus’ involvement in Russia’s aggression against Ukraine, published in OJ Monday 11 December

AAT Byelorussian Steel Works filed an action against the Council measures implementing sanctions related to the situation

in Belarus and its alleged involvement in the Russian aggression against Ukraine: BSW – management company of “BMC” holding v Council (T-1042/23). Read on EU Law Live

General Court to hear action for annulment over alleged violation of Regulation (EU) 2019/631 and Paris agreement by the Commission Implementing Decision (EU) 2023/1623 Monday 11 December

London EV Co. Ltd initiated legal action against the European Commission concerning the alleged violation of Regulation

2019/631 setting CO2 emission performance standards for new passenger cars and for new light commercial vehicles, and Commission Implementing Decision (EU) 2023/1623 specifying the values relating to the performance of manufacturers and pools of manufacturers of new passenger cars and new light commercial vehicles for the calendar year 2021 and the

values to be used for the calculation of the specific emission targets from 2025 onwards: London EV v Commission (Case T-1024/23).

Read on EU Law Live

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Court of Justice to clarify the power of national authority to broaden the circle of persons required to repay unlawful State aid Monday 11 December

Official publication was made of a request for a preliminary ruling from the Tribunale Amministrativo Regionale della Campania (Italy), lodged on 25 September 2023, concerning the compatibility with EU law of national legislation which allows the relevant national authority to broaden the circle of persons required to repay unlawful State aid, thereby excluding the Commission’s competence in that regard: Scai (C-588/23). Read on EU Law Live

Court of Justice to clarify grounds for optional non-execution of European arrest warrant Tuesday 12 December

Official publication was made of a request for a preliminary ruling from the Audiencia Nacional (Spain), lodged on 26 July 2023, concerning a European arrest warrant, issued by a Romanian court, requesting the transfer of a person convicted in the first instance for offenses relating to tax fraud and money laundering. Read on EU Law Live

Commission Notice Election to delay application of the IIR and UTPR under Article 50 of the Pillar Two Directive, published in OJ Tuesday 12 December

Official publication was made of Commission Notice Election to delay application of the Income Inclusion Rule (IIR) and the Undertaxed Profits Rule (UTPR) under Article 50 of the Pillar Two Directive (C/2023/1536). Read on EU Law Live

Requests for a preliminary ruling concerning the appointment and temporary relocation of judges within the Polish Supreme Court Tuesday 12 December

The Official Journal published several requests for preliminary rulings from the Sąd Najwyższy (Supreme Court) of Poland

to the Court of Justice, seeking clarity on matters related to the appointment and temporary relocation of judges within the Polish Supreme Court, raising questions about the violation of the principle of irremovability and independence of judges. Read on EU Law Live

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ISSUE Nº7 11-15 DECEMBER 2023

Court of Justice streaming hearing concerning appeal against General Court’s judgment upholding Commission’s Decision prohibiting merger of Illumina and Grail Tuesday 12 December

The Court of Justice’s hearing in Illumina v Commission and Grail v Commission and Illumina ( Joined cases C-611/22 P;

C-625/22 P) concerning an appeal brought against the judgment of the General Court in Illumina v Commission T-227/21, the latter upholding the Commission’s Decision informing the two undertakings that the Commission had received a request

for referral and had the legal consequence that Illumina and GRAIL were prohibited from implementing the concentration under Article 7 EUMR was streamed in the Court of Justice’s website. Read on EU Law Live

ECB publishes study on the environmental footprint of euro banknotes as payment instrument Tuesday 12 December

The European Central Bank published a study on the environmental impact of euro banknotes, which measures the such an impact from manufacturing to disposal, shows that the average environmental footprint for payments with banknotes was 101 micropoints per euro area citizen in 2019. Read on EU Law Live

ECtHR rules against Poland’s lack of legal protections for same-sex couples Tuesday 12 December

The European Court of Human Rights delivered its judgment in the case of Przybyszewska and Others v. Poland (applications nos. 11454/17 and 9 others), finding a breach of Article 8 (right to respect for private and family life) of the ECHR in respect to the absence of legal recognition and protection for same-sex couples in Poland. Read on EU Law Live

Council adopts decision on the signing of the EU-Kenya Economic Partnership Agreement Tuesday 12 December

The Council adopted a decision regarding the signing of the EU-Kenya Economic Partnership Agreement, the aim of which is to boost trade in goods and create new economic opportunities for both parties. Read on EU Law Live

Enhancing support for Ukrainian war refugees in the EU: lessons learned and future strategies Tuesday 12 December

The EU Agency of Fundamental Rights (FRA) released a report on the challenges faced by local authorities in providing support to refugees from the war in Ukraine, focusing on housing, education, employment, and healthcare. Read on EU Law Live

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Council and Parliament reach agreement on unified rules to target criminal assets Tuesday 12 December

In a significant development, negotiators from the Spanish presidency and the European Parliament reached a political agreement on an EU law focused on asset recovery and confiscation. Read on EU Law Live

Commission Implementing Regulation imposing definitive anti-dumping duty on certain hot-rolled flat products of iron, non-alloy or other alloy steel from Brazil, Iran and Russia Wednesday 13 December

Official publication was made of the Commission Implementing Regulation (EU) 2023/2758 imposing a definitive anti-

dumping duty on imports of certain hot-rolled flat products of iron, non-alloy or other alloy steel originating in the Federative Republic of Brazil, the Islamic Republic of Iran and the Russian Federation following an expiry review pursuant to Article 11(2) of Regulation (EU) 2016/1036. Read on EU Law Live

Commission’s proposal aims to enhance EU Single Market by addressing cross-border challenges Wednesday 13 December

The European Commission put forth an amended proposal for a ‘Regulation on Facilitating Cross-Border Solutions’ to

tackle legal and administrative obstacles affecting the daily lives of approximately 150 million European citizens residing in cross-border regions.

Read on EU Law Live

Conclusions on enlargement for the six Western Balkans partners, Türkiye, Ukraine, Moldova, and Georgia, approved by the Council Wednesday 13 December

The Council approved conclusions on enlargement for the six Western Balkans partners, Türkiye and – for the first time –

Ukraine, Moldova, and Georgia, following the Communication from the Commission, dated 8th November 2023, outlining the EU Enlargement Policy. Read on EU Law Live

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The Week

ISSUE Nº7 11-15 DECEMBER 2023

Council and Parliament reach provisional agreement on Anti-Money Laundering Authority Wednesday 13 December

The European Council and Parliament reached a provisional agreement on the establishment of a new European authority dedicated to countering money laundering and terrorist financing – the Anti-Money Laundering Authority (AMLA), the

key objective of which is to safeguard EU citizens and the financial system from the threats of money laundering and terrorism funding.

Read on EU Law Live

Council and Parliament strike deal on criminalizing violation of EU restrictive measures Wednesday 13 December

The Council and the European Parliament concluded their negotiations regarding a legislative proposal, which aims to ensure that those who violate or circumvent EU sanctions be prosecuted. Read on EU Law Live

Commission adopts package to safeguard democracy and civic engagement in the Union against foreign interference Wednesday 13 December

Ahead of the 2024 European elections, the European Commission adopted a Defense of Democracy package, the aim

of which is to tackle the threat of foreign interference with more transparency, while at the same time encouraging civic engagement and citizens’ participation in policy-making. Read on EU Law Live

Co-legislators reach agreement on proposal to improve working conditions for digital platforms’ workers Wednesday 13 December

The Council and the European Parliament reached a provisional agreement on a legislative proposal to improve working conditions for platform workers, aiming to help determine the correct employment status of people working for digital platforms and establish the first EU rules on the use of algorithm systems in the workplace. Read on EU Law Live

Commission adopts amending rules on small amounts of State aid and for services of general economic interest Wednesday 13 December

The European Commission adopted two regulations amending the de minimis Regulation and the SGEI de minimis Regulation,

which exempt small amounts of aid since they are deemed to have no impact on competition and trade in the Single Market. Read on EU Law Live

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The Week

ISSUE Nº7 11-15 DECEMBER 2023

Commission strengthens anti-harassment policy with comprehensive reforms Wednesday 13 December

The European Commission revamped its policy against psychological and sexual harassment, introducing streamlined and modernized redress mechanisms for victims by implementing robust harassment prevention measures. Read on EU Law Live

Council and Parliament reach deal on proposal to reform Union’s electricity market design Thursday 14 December

The Council and the Parliament reached a provisional agreement in respect to a proposal to reform the EU’s electricity

market design (EMD), which includes a regulation focused on improving the EU’s protection against market manipulation through better monitoring and transparency (REMIT). Read on EU Law Live

General Court dismisses damages claim against Frontex in alleged pushback incident Thursday 14 December

The General Court published an order in case T-136/22, in which a Syrian national sought damages from the European Border and Coast Guard Agency (Frontex) for alleged unlawful measures taken against him by the Greek authorities. Read on EU Law Live

Council and Parliament reach a provisional deal on the corporate sustainability due diligence directive Thursday 14 December

The Council and the European Parliament reached a provisional agreement on the Corporate Sustainability Due Diligence

Directive (CSDDD), signaling a significant step towards bolstering environmental and human rights protections both within the European Union and globally. Read on EU Law Live

Court of Justice rules on annual leave during quarantine: no obligation to carry over days Thursday 14 December

The Court of Justice delivered its judgment in Sparkasse Südpfalz (case C-206/22) concerning a dispute on the matter of carrying over paid annual leave for an employee under quarantine during the Covid-19 pandemic. Read on EU Law Live

www.eulawlive.com

The Week

ISSUE Nº7 11-15 DECEMBER 2023

Fear of data misuse can constitute non-material damage: Court of Justice Thursday 14 December

The Court of Justice delivered its judgment in Natsionalna agentsia za prihodite (Bulgaria C-340/21), a case concerning the possible liability of a data controller in relation to unlawful access to personal data by third parties. Read on EU Law Live

Court of Justice: The Commission did not establish that the tax ruling given to Amazon by Luxembourg qualifies as State aid Thursday 14 December

In Commission v Amazon.com and Others (C-457/21 P), the Court of Justice rendered its judgment concerning an appeal,

brought before it by the Commission, against the judgment of the General Court in Joined Cases T-816/17 and T-318/18, Luxembourg and Amazon v Commission, by which the General Court rejected Commission Decision 2018/859 on State aid (SA.38944) implemented by Luxembourg to Amazon. Read on EU Law Live

AG Szpunar Opinion on loss of European Union citizenship after voluntary acquisition of foreign nationality Thursday 14 December

Advocate General Szpunar delivered his Opinion in the cases S.Ö. v Stadt Duisburg (C-684/22), N.Ö. and M.Ö. v Stadt

Wuppertal (C-685/22) and M.S. and S.S. v Stadt Krefeld (C-686/22), concerning the interpretation of Article 20 TFEU that determines the rights and the duties of Union citizens. Read on EU Law Live

EU and Chile sign ambitious agreements strengthening trade and political ties Thursday 14 December

The EU and Chile signed an Advanced Framework Agreement and an Interim Trade Agreement to strengthen political cooperation and foster trade and investment.

Read on EU Law Live

Article 82 GDPR precludes national legislation which establishes a ‘de minimis’ threshold for nonmaterial damage Thursday 14 December

The Court of Justice delivered its judgment in Gemeinde Ummendorf (C-456/22), a request for a preliminary ruling from the Regional Court in Ravensburg (Germany) concerning the interpretation of Article 82(1) GDPR. Read on EU Law Live

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The Week

ISSUE Nº7 11-15 DECEMBER 2023

Council and Parliament strike deal on new product liability rules for defective products in the digital economy Thursday 14 December

The Spanish presidency of the Council and the European Parliament reached a political agreement on a new EU law on

liability for defective products, which will update the current civil liability rule-book to better take into account the current digital features that products consist of nowadays, as well as the circularity of the economy. Read on EU Law Live

AG Kokott: Hungarian framework for imposition of tax guarantees incompatible with VAT Directive, fundamental rights Thursday 14 December

Advocate General Kokott delivered her Opinion in MAX7 Design (C-519/22), a request for a preliminary ruling from the Budapest High Court concerning the interpretation of Article 273 of the VAT Directive (Directive 2006/112/EC) in light of Articles 16, 17 and 47 of the Charter of Fundamental Rights. Read on EU Law Live

AG Pikamäe: Union law does not preclude national legislation requiring a second judicial formation to ratify a plea bargain Thursday 14 December

Advocate General Pikamäe handed down his Opinion in PT (C-432/22), a case concerning criminal charges against 41

defendants, including the applicants for leading or participating in the activities of a criminal organization which distributed drugs.

Read on EU Law Live

Ilva and Others: Operation of Ilva steelworks cannot entail excessive adverse effects on human health, holds AG Kokott Thursday 14 December

Advocate General Kokott handed down her Opinion in Ilva and Others (C-626/22), a request for a preliminary ruling from the District Court in Milan concerning the interpretation of Directive 2010/75/EU on industrial emissions. Read on EU Law Live

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The Week

ISSUE Nº7 11-15 DECEMBER 2023

Court of Justice: Commission should (briefly) specify reasons in relation to selectivity criteria when establishing existence of State aid Thursday 14 December

The Fourth Chamber of the Court of Justice delivered its judgment in EDP España v Naturgy Energy Group and Commission

and Naturgy Energy Group v Commission ( Joined cases C-693/21 P; C-698/21 P), cases on appeal seeking the setting aside of the judgment of the General Court in Case T-328/18, and consequently the annulment of a Commission Decision

concerning State Aid granted by an environmental incentive adopted by Spain in favor of coal-fired power plants, initiating the formal investigation procedure laid down by Article 108(2) TFEU. Read on EU Law Live

Court of Justice dismisses MEPs’ appeal in Rivière and Others v. Parliament Thursday 14 December

The Court of Justice delivered its judgment in Rivière and Others v. Parliament (C-767/21 P), an appeal by which the applicants seek to have set aside the General Court’s (GC) judgment in Rivière and Others v. Parliament (T-88/20) where it dismissed as inadmissible the appellants’ action for annulment of the oral measure of the President of the Parliament of 13 January 2020, prohibiting MEPs from displaying national flags on their lecterns. Read on EU Law Live

Commission Implementing Regulation amending definitive safeguard measure on imports of certain steel products, published in OJ Friday 15 December

Official publication was made of Commission Implementing Regulation 2023/2840 of 14 December 2023 imposing a definitive safeguard measure on imports of certain steel products, which consists of a tariff-rate quota (TRQ) allowing dutyfree imports up to a predefined quota based on historical trade flows. Read on EU Law Live

State Aid approval decisions in the Official Journal Friday 15 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 Nº7 11-15 DECEMBER 2023

European Council outlines measures on Ukraine, enlargement, and reforms Friday 15 December

The European Council released comprehensive conclusions regarding Ukraine, enlargement plans, and necessary reforms while strongly condemning Russia’s war of aggression. Read on EU Law Live

New amending rules concerning exemption of de minimis State aid, published in OJ Friday 15 December

Official publication was made of two Commission Regulations on the application of Articles 107 and 108 TFEU to de minimis

aid and to de minimis aid granted to undertakings providing services of general economic interest (‘SGEI’): Commission Regulation (EU) 2023/2831 and Commission Regulation (EU) 2023/2832. Read on EU Law Live

Norway taken to EFTA Court for not recognizing EEA national childrens’ independent right of residence under EEA law Friday 15 December

The EFTA Surveillance Authority (‘ESA’) referred Norway to the EFTA Court for its failure to recognize that EEA national children can have an independent right of residence under EEA law and be accompanied by their primary carers. Read on EU Law Live

Council and Parliament strike deal on rules to improve the safety and quality of blood, tissues, and cells in the EU Friday 15 December

The Council and the European Parliament reached a provisional agreement on new rules aimed at improving the safety, quality, and cross-border circulation in the EU of blood, tissues and cells used in healthcare. Read on EU Law Live