The Week Nº8

ISSUE Nº8

Y EAR 2 0 2 3

18-22 December 2023

IN-DEPTH: Government’s reports, right to access to environmental information and res judicata. Dangerous crossings?

Matteo Fermeglia The Court of justice clarifies the extent of the right to information about the accusation in case of reclassification of the criminal offence: BK C-175/22 (Réqualification de l’infraction) Ilaria Gambardella Effective judicial remedy against the competent supervisory authority under the law enforcement directive: Ligue des droits humains (Vérification du traitement des données par l’autorité de contrôle) (C-333/22) Meinhard Schröder The meaning of Article 15(C) Asylum Qualification Directive further unravelled: a discussion of X, Y and their six minor children (C-125/22) Mark Klaassen Risk of indirect refoulement cannot lead to the refusal of a Dublin transfer in the EU (C-228/21, C-254/21, C-297/21, C-315/21 and C-328/21) Lucia van der Meulen SYMPOSIUM ON EU ENLARGEMENT: DMA Enforcement: Setting the Scene for Effective Compliance Antoine Babinet and Katarzyna Sadrak THE LONG READ: Reflections on the Ruling of the Federal Constitutional Court on Germany’s Budget Phedon Nicolaides and Alessandro Cuomo 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

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Government’s reports, right to access to environmental information and res judicata. Dangerous crossings?

Matteo Fermeglia Introduction and background On 23 November 2023, the General Court (Fourth Chamber) released its judgment in the Right to Know case

(C-84/22). This case fits in the long-standing stream of case law related to the interpretation of Directive 2003/4/ EC on Access to Environmental Information (AEI Directive). Importantly, the AEI Directive implements the

obligations under the 1998 UNECE Aarhus Convention on Access to Environmental Information, Public Participation and Access to Justice in Environmental Matters.

Access to environmental information is a key element of EU’s environmental policies to ensure transparency, accountability and inclusiveness in decision-making. In this respect, the Court of Justice has repeatedly held

that the requirements as to the access of information must be interpreted extensively. Yet such extensive right

to environmental information constantly brings about issues of weighing public and private interests, e.g., in relation to the confidentiality of procedures and protection of intellectual property. Therefore, Article 4 of the AEI Directive provides for exceptions to the general duty to disclose information upon public authorities.

In the case at hand an Irish NGO, Right to Know, sought to gain access to records of meetings of the Irish

Government. The request was originally rejected by internal procedure, which was moreover upheld in a judgment of the same Irish High Court in 2018. In particular, the High Court held that the Government’s meeting notes

fall within the exception under Article 4(1)(e) first sub-paragraph of the AEI Directive, which allows to deny

access to information with regard to ‘internal communications’ of public authorities. Right to Know’s request was

thus left to re-consideration of the Prime Minister, which finally granted the NGO access to the meeting notes, albeit partly. Therefore, Right to Know challenged the legality of the Prime Minister’s decision again before the

Irish High Court, which in turn referred the request for preliminary ruling under Article 267 TFEU to the Court of Justice.

Interestingly, in its preliminary reference the Irish High Court hinted at the fact that in the case at hand, according to Article 4(2) second paragraph AEI Directive, the disclosure of documents relating to ‘information on emissions into the environment’ may not be refused. Such general requirement may however be derogated

with regard to ‘internal communications’ against the need to preserve confidentiality of public proceedings within public authorities. The key interpretative question is, therefore, whether documents such as notes of Government’s meetings shall be considered as ‘internal communications’ or ‘proceedings of public authorities’ for the purposes

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of the application of different exceptions laid down under Article 4(1) of the AEI Directive. For, no grounds for exceptions to the disclosure of information on emissions into the environment are allowed with regard to documents that constitute ‘proceedings of public authorities’.

The Irish High Court posed an additional question in relation to the principle of res judicata. In fact, upon the

2018 judgment issue by the Irish Supreme Court, the legal matter brought by Right to Know was deemed settled

under the Irish Law doctrine of issue Estoppel. Thus, for the purposes of the ongoing proceeding before the same Irish Supreme Court, Right to Know would be precluded from benefitting of whatever interpretation of Article 4(1) AEI Directive as resulting from the preliminary reference procedure at hand. Such interpretation would be justified in light of the principles of effectiveness and equivalence of EU law (as established, among others, in Kapferer, C-234/04).

Decision and comments Against the above background, the Fourth Chamber was essentially faced with the following interpretative questions:

1. Are records of Government’s meetings to be characterised as ‘internal communications’ or as ‘proceedings of a public authority’ within the meaning of Article 4(1) of the AEI Directive?

2. Does the principle of res judicata as reflecting the principle of effectiveness of EU law preclude an applicant to benefit from an established violation of the AEI Directive, when a previous final decision already rejected such claim under EU law?

As to the first question, the Court emphasised that under the AEI Directive the disclosure of such information should be the general rule, and public authorities should be allowed to refuse a request for environmental information only in specific and clearly defined cases. The exceptions to the general right of access to information

should, consequently, be interpreted in a restrictive way; whereas the public interest served by disclosure should be weighed against the interest served by the refusal to disclose information.

The Court already stressed in Land Baden-Württemberg (C-619/19) that the concept of ‘internal communication’ under Article 4(1)(e) is aimed to allow a protected space to be created for public authorities in order to engage in reflection and to pursue internal discussions. As such, it must be related to situations when that information

has not left the sphere of the public authority at the date of the request of access to information, provided that it was not or should not have been made available to the public before it was so received. Differently, the exception related to information contained in ‘proceeding of public authorities’ bears a more limited scope and different

rationale, since it applies only to information exchanged in a very specific context and it allows Member States to protect solely information relating to the final stages of the decision-making process.

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In the case at hand, the Court hence concluded that the Irish Government’s meeting records may constitute ‘internal communications’ for the purposes of Article 4(1)(e) Aarhus Directive. The Court however stressed, in

line with its decision in Bayer CropScience (C-442/14), that even if this was the case, national authorities must always ascertain if the information related to environment can be separated out from other information covered by the exception under Article 4(1)(e).

As to the second question, the Court emphasised that EU law does not require a national court to disapply domestic rules of procedure conferring the authority of res judicata, even if doing so would make it possible to

remedy a domestic situation which is incompatible with EU law. Consequently, no requirements are established under EU law upon a national judicial body to automatically review a judgment constituting res judicata, in order

to take into account the interpretation of a relevant provision of EU law adopted by the Court (paras. 93-94).

Nor, in the case at hand, such rationale can be undermined by the fact that the Irish Supreme Court has not made

a previous reference for a preliminary ruling under Article 267 TFEU in the proceeding leading up to the final judgment. This would be justified, according to the Fourth Chamber, in light of the overall wide discretion upon Member States’ courts to refer preliminary question to the Court of Justice (para. 73).

However, the Court recalled that such rationale shall not be absolute. When a national procedural provision renders the full application of EU law impossible or excessively difficult, the account of basic principles and values

of the Member State’s domestic legal system must be taken into account (Avio Lucos, C-116/20, para. 69). In

this connection, delving into the features of the Irish legal system as elaborated by AG Kokott, the Court also recognised that Irish courts may entertain discretion under the Irish issue Estoppel doctrine to allow a party to a

dispute to pursue an issue that has already been decided against that party in earlier proceedings (para. 79). The Court hence left to the Irish High Court to ascertain whether it would indeed entertain such power in this case.

Overall, the Right to Know judgment seems to consolidate the previous stances held by the Court with regard to all the legal issues raised by the Irish High Court on the exceptions to the AEI Directive and the doctrine of res

judicata. Yet, the combination of both the relatively narrow interpretation of Article 4(1)(e) AEI Directive and the same principle of res judicata might, in the case at hand, face caveats in relation to the overall effectiveness of

EU law from the perspective of ensuring environmental democracy and transparency in environmental decision-

making as upheld under Article 6 AEI Directive and the Aarhus Convention. Notably, in its decision the Court

seems to show due deference to these issues, albeit not in a prescriptive fashion. The conclusion of the Fourth Chamber is laudable from a legal and institutional perspective. In fact, the Court stressed that although the conditions for the (dis-)application of the doctrine of res judicata shall be left to the Irish High Court, the same

domestic court ‘is required to exercise that discretion if it finds that, contrary to what is stated in the High Court judgment of 1 June 2018, the information sought does not fall within the exception to the right of access to

environmental information laid down in respect of internal communications’ (para. 80). Moreover, the Court hints at the fact that such situation could possibly arise in the context of the Irish legal system, thus arguably calling for the Irish High Court to duly take into account the overarching environmental objectives pursued by the AEI Directive and EU environmental law.

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Matteo Fermeglia is Assistant Professor of Climate Law and Governance at the University of Amsterdam.

SUGGESTED CITATION: Fermeglia, M; “Government’s reports, right to access to environmental information and res judicata. Dangerous crossings?”, EU Law Live, 19/12/2023, https://eulawlive.com/op-ed-governments-reports-right-to-access-to-environmental-information-and-res-judicata-dangerouscrossings-by-matteo-fermeglia/

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The Court of justice clarifies the extent of the right to information about the accusation in case of reclassification of the criminal offence: BK C-175/22 (Réqualification de l’infraction)

by Ilaria Gambardella In case BK C-175/22 (Réqualification de l’infraction), the Court of Justice of the EU (the Court) was confronted to two preliminary questions referred by the Bulgarian specialised criminal court (Spetsializiran nakazatelen

sad) regarding the interpretation of Directive 2012/13 on the right to information in criminal proceedings (the Directive) as well as Article 47(2) of the Charter of fundamental rights of the EU (the Charter).

In essence, the Bulgarian court has doubts as to whether Article 6 of the Directive precludes a national court

from reclassifying a criminal offence without informing the accused person prior to the delivery of the judgement.

In the affirmative, the Bulgarian court also asks whether the fact that the information about the reclassification

comes from a court is incompatible with the requirement of judicial impartiality established in Article 47(2)

Charter. The present Op-Ed will primarily focus on the first preliminary question which represents the most

relevant contribution of the case, also in light of the comparison with relevant case law of the European Court of Human Rights (ECtHR).

Background This judgement is part of the growing body of case law interpreting the Directives on procedural rights in criminal matters (the so-called ‘Roadmap Directives’) adopted on the basis of Article 82(2) TFEU. Interestingly, when performing a search on the curia search form, it appears that the Bulgarian specialized criminal court which raised

the questions in the case at hand is at the origin of a consistent number preliminary questions, many of which concerning the Roadmap Directives (16). These references constitute an important number also when compared to the total of existing cases mentioning the Directives (52).

The interpretation of these Directives proves particularly challenging for the Court of Justice. On the one hand, the Court is called to interpret a secondary law act establishing minimum requirements on a delicate matter such

as fundamental procedural rights, also overlapping with the Charter (S. Iglesias Sanchez). On the other hand, since the Directives are directly inspired from the case law of ECtHR, the Court of Justice is also called to interact with the Strasbourg Court ( J. Callewaert).

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The facts of the case in the main proceedings The facts of the case are the following: BK, a police investigator, is brought before the Bulgarian specialized

criminal court for having committed acts that the Bulgarian public prosecutor qualifies as corruption. BK rejects

this classification and contends that the acts he has committed should be classified as fraud, an offence subject to a less severe penalty.

According to the Bulgarian legislation, the legal classification of the acts is established by the public prosecutor alone. However, the Bulgarian case law interprets this legislation as allowing a national court to declare the defendant guilty on the basis of a different classification when two conditions are met: (i) the new legal classification

does not entail making substantial judgements to the factual aspect of the charges and (ii) it does not lead to a

more severe penalty. Moreover, the reclassification can only be made by the criminal court at the stage of the deliberation, meaning that the accused person will only be informed of the new classification after the delivery of the judgement.

In the case at hand, the Bulgarian court considers that the acts of which BK is accused should not be qualified as

corruption but rather as fraud or undue influence. However, the national court has doubts as to whether the fact of reclassifying the criminal offence without informing the accused person prior to the delivery of the judgement

is compatible with EU law, in particular, the requirements flowing from Article 6(3) and (4) of the Directive on the right to information. Indeed, these provisions concern the right of the accused to be informed about the accusation, including any changes in the information given when this is necessary to safeguard the fairness of the proceedings.

The Court of Justice goes beyond the case law of the ECtHR and rules that the accused person should be informed of the reclassification of the offence even when the new envisaged classification does not comprise new elements

In its judgement, the Court of justice adopts an extensive interpretation of the right to information about the

accusation. It is noteworthy that the Court distances itself from the relevant case law of the ECtHR, despite not mentioning any of the ECtHR cases in the judgement.

The Court starts by reminding that the minimum requirements established in the Directive are intended to

safeguard the fairness of the proceedings (para. 34) and ensure that the suspect or accused person is informed of his/

her charges ‘at a point in time that enables him/her to prepare his defence effectively’ (Kolev C-612/15, para. 90).

As a result, in light of previous case law of the Court, information about the charges should be transmitted before the stage of deliberation (ZX C-282/20, para. 29).

The novelty of the questions asked in the case at hand lies in the interpretation of the notion of ‘fairness of the

proceedings’ and its relevance in the assessment of the necessity to inform the suspect or accused person. As rightly

pointed out by Advocate General Ćapeta in her opinion, this expression is taken directly from the language of

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the case law of the ECtHR (§73). The AG observes that the ECtHR distinguishes two sets of situations: (i) the

situation in which the constituent elements of the original offence and the reclassified offence are different and (ii) the situation in which the constituent elements of the two offences are the same (paras. 43 to 51). In the first

scenario, the fairness of the proceedings is always affected because the accused person is not given the possibility

to defend him/herself on the new elements (see Pélissier and Sassi v France and Penev v Bulgaria). Conversely, the ECtHR found no violation when the accused person has been given the possibility to exercise his or her right of

defence on all the elements of the offence, which are the same as the new reclassified offence (see Salvador Torres v Spain and Marilena-Carmen Popa v Romania).

Echoing ECtHR case law, the Court of Justice rules that the communication of the legal classification is essential

for the accused person to organise his/her defence in an effective way (para. 40). This is certainly the case when the new envisaged offence comprises new elements (para. 43). In the case at hand, the national court intends not to

use the classification of corruption and change it into fraud or undue influence. The two latter offences, however, do not comprise the same elements as the offence of corruption initially proposed by the public prosecutor (para.

44). Therefore, according to the Court of Justice, BK should be given the possibility to put forward his arguments on the new elements.

Furthermore, the Court rules – in contrast with the abovementioned ECtHR case law – that ‘even assuming that the new envisaged offence does not comprise any new element in relation to the offence previously used, so that

the accused person has had the opportunity, in the course of the proceedings, to put forward his or her arguments

regarding all the elements which that new offence comprises, the reclassification of the offence by the criminal

court or tribunal ruling on the substance is still likely to have a non-negligible impact on the exercise of the rights of the defence. Indeed, it is not inconceivable that the accused person to whom the new envisaged classification is communicated may organise his or her defence differently’ (para. 45). The Court of Justice therefore adopts a more

extensive interpretation of the right to information in case of reclassification of the offence. This is in line with the suggestion of the AG, who pointed out that the obligation to interpret the Directive in light of fundamental

rights does not mean that the EU legislator cannot offer more extensive protection (para. 56). In this respect, it

has been argued that the Court of Justice should emancipate itself from the Strasbourg Court and not rigidly stick

to the minimal standard set in its case law. This divergence, however, is more problematic when looked at from the perspective of the national jurisdictions which are confronted with the application of divergent case law and would benefit from greater convergence between the two Courts (see J. Callewaert).

In the commented case, the Bulgarian national Court also asks about the compatibility with the requirement of impartiality under Article 47(2) Charter of the power granted to a national court to use – on its own initiative or

in response of a suggestion form the accused person – of a legal classification which differs from that originally used by the public prosecutor. The Court considers that the question should be reformulated since it also relates to Articles 3 and 7(2) of Directive 2016/343 on the presumption of innocence, concerning respectively the

presumption of innocence and the right not to incriminate oneself (paras. 53-54). The Court determines that the

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power of a national court, ruling on the substance of the case, to reclassify the criminal offence on its own initiative

does not call into question the presumption of innocence nor its impartiality. Moreover, the fact that the accused person has suggested a new classification does not mean in itself that the person acknowledges his/her guilt with

regard to the new classification (para. 58). Therefore, a legislation such as in the main proceedings is not precluded, provided that the national court has informed the accused person of the new envisaged classification in due time so as to ensure the exercise of the rights to defence. While the decision of the Court on the second question is

short and straightforward, the chosen interpretation might have some drawbacks, as shown by L. Bernardini in another Op-Ed about this case.

Ilaria Gambardella is a PhD researcher at the KU Leuven Institute for European Law and the Université libre de Bruxelles. Her research is founded by the Research Foundation Flanders – FWO (grant agreement n° 11B7523N).

SUGGESTED CITATION: Gambardella, I.; “The Court of justice clarifies the extent of the right to information about the accusation in case of reclassification of the criminal offence: BK C-175/22 (Réqualification de l’infraction)”, EU Law Live, 18/12/2023, https://eulawlive.com/op-ed-thecourt-of-justice-clarifies-the-extent-of-the-right-to-information-about-the-accusation-in-case-of-reclassification-of-the-criminal-offence-bk-c-175-22requalification-de-l/

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Effective judicial remedy against the competent supervisory authority under the law enforcement directive: Ligue des droits humains (Vérification du traitement des données par l’autorité de contrôle) (C-333/22) Meinhard Schröder For the second time in just over a year, the Belgian Ligue des droits humains has given its name to an important judgment of the European Court of Justice in the area of data protection law. While the first decision, issued on 21 June 2022 (C-817/19), dealt with the use of passenger name records (PNR) and was of particular importance

with regard to the use of AI in public administration, the latest judgment (C-333/22), issued on 16 November

2023, clarifies the scope of legal remedies of a data subject in the context of exercising their rights ‘through the competent supervisory authority’, as provided for by Article 17 of Directive 2016/680, usually known as the ‘law enforcement directive’.

The indirect exercising of the rights of a data subject ‘through the competent supervisory authority’, is a special

feature of the police directive, which can be found neither in the GDPR nor in the EU data protection Regulation

2018/1725. For data subjects, it is a (partial) compensation for the non-applicability of their rights as data subjects which they can normally exercise directly against data controllers, because in the area of law enforcement, Member

States may limit the data subjects’ direct rights under Article 13 (3), 15 (3) and 16 (4) of Directive 2016/680 in order to protect certain public interests. According to article 17 (3) of Directive 2016/680, after indirectly

exercising a data subject’s rights, the supervisory authority shall inform the data subject at least that all necessary verifications or a review by the supervisory authority have taken place, and of his or her right to seek a judicial remedy.

Case C-333/22 was referred to the Court of Justice by a Belgian court, which had to deal with an application by

a data subject (‘BA’) who had been denied a security clearance from the National Security Authority. As Belgian law excludes the direct exercise of data subjects’ rights in this case, BA had asked the supervisory authority OCIP

(Organe de contrôle de l’information policière) to exercise his rights, and the OCIP later informed BA that it had carried out the necessary verifications and the lawfulness of the processing was ensured. It also informed BA

that, if necessary, his personal data had been amended or erased. BA asked the Belgian courts for a review of this decision, and the cour d’appel de Bruxelles had two questions about EU law: (1) if ‘provision [must] be made for

a judicial remedy against an independent supervisory authority where it exercises the rights of the data subject vis-à-vis the controller’, and (2) if Article 17 of Directive 2016/680 complies with Articles 47 and 8(3) of the

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Charter of Fundamental Rights, when the very limited information it requires to be given to the data subject

‘does not enable any a posteriori review to be conducted as regards the action taken and assessment made by the supervisory authority’.

With regard to the first question, surprisingly, the second sentence of Article 17 (3) of Directive 2016/680 plays no role in the judgment, despite the fact that it quite obviously presupposes the existence of a judicial remedy

against the supervisory authority. Instead, the Court of Justice focuses on the interpretation of Article 46(1)(g),

Article 47(1) and (2) and Article 53(1) of Directive 2016/680 (which was not prompted by the referring courts’ question, which had entirely focused on fundamental rights of the Charter). But many roads lead to Rome, and the Court of Justice finds the correct result, i.e. ‘Article 17 of Directive 2016/680 […] must be interpreted as

meaning that where the rights of a data subject have been exercised, pursuant to Article 17 of that directive, through the competent supervisory authority and that authority informs that data subject of the result of the verifications carried out, that data subject must have an effective judicial remedy against the decision of that authority to close the verification process’ (para. 55).

From the perspective of a data subject like BA, the question remains how effective such a judicial remedy can be if the supervisory authority only provides them with the information that all necessary verifications or a review

have taken place, as required by Article 17(3) (1) of Directive 2016/680. Lack of information can prevent the effectiveness of a judicial remedy, as the Court of Justice already pointed out in the previous Ligue des droits humains case (C-817/19, para. 194), where it had considered the opacity of AI based decisions as a possible

deprivation of the right to an effective judicial remedy. In view of this problem, the referring Belgian court had asked if Article 17(3) of Directive 2016/680 was compliant with Articles 47 and 8(3) of the Charter . The

Court of Justice answers the question in the affirmative. However, despite the well-structured fundamental rights compatibility assessment, not all aspects of effectiveness of a judicial remedy are covered.

As a starting point, the Court of Justice convincingly considers articles Articles 13(3), 15(3), 16(4) and 17 of

Directive 2016/680 as limitations of the right to a judicial remedy, in accordance with Article 52(1) of the Charter, and it acknowledges that there are legitimate reasons for limiting that right. Regarding the proportionality of the

limitation, it first reminds national legislators (and supervisory authorities) that Article 17(3) of Directive 2016/680 only sets out the minimum particulars of the information to be given, and that the right to an effective judicial remedy may require to give more information (paras. 63, 65). This is convincing, as limitations of fundamental

rights must not go beyond what is necessary to pursue the legitimate aim. However, one could raise the question

if data protection law, which is otherwise often over-detailed, in order to be compliant with fundamental rights, should not give supervisory authorities a clearer indication of what information they have to provide a data subject with. Nonetheless, as the Court of Justice correctly points out, ‘an EU act must be interpreted, as far as possible, in

such a way as not to affect its validity and in conformity with primary law as a whole and, in particular, with the provisions of the Charter’ (para. 57). In addition, as the EU act in question is a directive, Member States can –and

must– (para. 65) compensate the regulatory ‘deficit’ on the EU level by requiring their supervisory authorities to give as much information as possible.

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Regarding proportionality, the more problematic situation is the one that the referring Belgian court had in mind, where the information given to the data subject is kept to the minimum set out in Article 17(3) of Directive 2016/680. In view of that situation, the Court of Justice focuses on the problem national courts may have in assessing the lawfulness of the data processing and of its review by the supervisory authority. This is certainly an important aspect of judicial remedy, and the Court of Justice convincingly reminds Member States to exercise

their procedural autonomy in order to implement the measures necessary to guarantee an effective judicial review

(para. 67, 68). However, passing on information from the controller to the supervisory authority and then to the court, which the Court of Justice suggests (para. 70), may enable courts to fulfil their review task, but it does not enable data subjects to assess their chances of succeeding before a court. The effectiveness of a judicial remedy

requires both – starting a court procedure ‘into the blue’ would be ineffective for the applicant (who has to bear the cost of the proceeding of he/she loses) and will lead to unnecessary cases before the courts. Admittedly, the

right to an effective judicial remedy can be limited also in that respect, and Article 17(3) of Directive 2016/680 is likely to do so in a proportionate way, but that is something one would have liked the Court of Justice to decide.

Therefore, despite the overall convincing outcome, Ligue des droit humains (C-333/22) is a missed opportunity to explore the limits for limitations of article 47 of the Charter.

Meinhard Schröder holds the chair of Public Law, European Law and IT law at the University of Passau (Germany).

SUGGESTED CITATION: Schröder, M; “Effective judicial remedy against the competent supervisory authority under the law enforcement directive: Ligue des droits humains (Vérification du traitement des données par l’autorité de contrôle) (C-333/22)”, EU Law Live, 19/12/2023, https://eulawlive. com/op-ed-effective-judicial-remedy-against-the-competent-supervisory-authority-under-the-law-enforcement-directive-ligue-des-droits-humainsverification-du-traitement-des-donnees-par-l/

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The meaning of Article 15(C) Asylum Qualification Directive further unravelled: a discussion of X, Y and their six minor children (C-125/22) Mark Klaassen Introduction The EU Asylum Qualification Directive provides that subsidiary protection should be provided to a person who does not qualify as a refugee but who nevertheless faces a real risk of suffering serious harm in the country of

origin. Serious harm, as defined in Article 15 of the Directive, consists of: the death penalty or execution (sub a), torture of degrading or inhuman treatment (under b) or a serious individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict (under c). The aim of subsidiary protection is to provide international protection to those in need who are not covered by the definition of who qualifies as a refugee in order to safeguard the fundamental prohibition of refoulement.

In its judgment X, Y and their six minor children v Staatssecretaris van Justitie en Veiligheid (C-125/22), the Court of Justice interpreted the meaning of Article 15(c) of the Asylum Qualification Directive and extended the scope of this provision compared to the Court’s previous case law.

In this analysis, I will first sketch out the facts of the case. After that I will summarise the reasoning of the Court of Justice. In my analysis I will highlight the differences between Article 15 (b) and (c) after the Court’s judgment in the present case and I will show how this might affect the outcome of the applicant’s asylum claim.

Facts of the case and questions referred The case concerns a Libyan family with six children. In 2018, they applied for asylum in the Netherlands because they feared being subjected to serious harm as laid down in Article 15 under (b) and (c) of the Asylum Qualification

Directive. The father of the family claims to have worked as a bodyguard for prominent politicians in Libya and

that he was a victim of a shooting which occurred outside of his working hours. Additionally, he stated that he

was under threat of militias over a dispute concerning a piece of land. Lastly, he claimed that his family left Tripoli because of the difficult living conditions, including the absence of fuel, drinking water and electricity.

The asylum application was rejected by the Dutch authorities because the threats to his life were not considered credible. For example, he could not substantiate that he was directly targeted in the shooting. Additionally, the Dutch authorities deemed that the applicants did not qualify for subsidiary protection based on the general security situation in Libya.

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The referring court asked the Court of Justice whether personal circumstances and the general situation in

the country of origin must always be examined and assessed under Article 15(c) of the Asylum Qualification Directive. This question originates in a long-standing discussion in Dutch asylum law about whether individual circumstances can play a role in the assessment of whether a situation that is covered by Article 15(c) exists.

The ruling of the Court of Justice In its ruling, the Court provides an overview of the different forms of serious harm that are listed in Article 15.

For the first two limbs of that provision, the Court observes that there must be substantial grounds for believing

that the applicant would be exposed specifically and individually (emphasis added) to a real risk of being subjected to the death penalty, execution, torture or inhuman or degrading treatment or punishment (para. 38). In that

assessment, elements concerning the general level of violence and insecurity must also be considered, as it provides for the context of the specific and individual risk (para. 39).

The Court finds that Article 15(c) provides for a ‘more general’ risk of harm than those referred to in points

(a) and (b). Referring to the judgment in Elgafaji, the Court states that the real risk of serious harm under that provision is not conditional on the applicant proving that he or she is specifically affected by reason of factors

particular to his or her personal circumstances (para. 41). What is innovative in the Court’s reasoning is that personal circumstances may be relevant in the assessment of whether such a level of indiscriminate violence exists

to give rise to a situation as envisioned in Article 15(c). If that is the case, a lower level of indiscriminate violence is sufficient to reach the threshold of Article 15(c) (para. 42). A combination of personal circumstances and indiscriminate violence may give rise to eligibility for subsidiary protection under Article 15(c).

The remaining question is which personal circumstances can have the effect that a lower level of indiscriminate violence is sufficient to find that there is a real risk of serious harm. The Court emphasises that the Member State authorities must make an assessment on a case-by-case basis, taking into account any factors relating to the

individual situation of the applicant liable to contribute to the materialisation of the real risk. The Member State must have regard to the level of indiscriminate violence in the country of origin. In that context, factors specific to

the applicant’s private, family or professional life may be presumed to increase the risk of serious harm (para. 67).

The Court of Justice considers that this reading of the Qualification Directive is fully compatible with the jurisprudence of the European Court of Human Rights on Article 3 ECHR. The Court states that Article 15(c) provides more extensive protection than Article 3 ECHR. Analysis The present judgment expands the scope of Article 15(c). Previously, it was believed that the scope of this provision was limited to situations in which the level of indiscriminate violence does not reach a sufficient level of severity

that everyone from a particular country or region faces a real risk of serious harm. With the present judgment, is

has become clear that the Article 15(c) threshold is flexible. Personal circumstances should be considered in the

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risk assessment under this provision, meaning that the level of indiscriminate violence does reach the required threshold for some, whilst not for others. By its reasoning, the Court of Justice has settled the discussion that Article 15(c) is not dichotomous but works with a scale.

The difference between Article 15(b) is that under that provision, an asylum applicant must prove that he

individually faces a real risk of serious harm, possibly because of belonging to a certain group. The personal

circumstances that determine whether the applicant is at risk relate to the risk assessment of how the applicant would be treated in the country of origin. Whereas with Article 15(c), an asylum applicant does not need to

substantiate the individual risk with personal circumstances but should argue that because of such circumstances, there is a lower level of indiscriminate violence sufficient to assume a real risk under that provision.

It remains to be seen what the legal and practical consequences of the ruling will be. The degree to which there is indiscriminate violence in a country of origin already plays a role in the assessment of whether an applicant is

individually or as part of a group at risk of serious harm under Article 15(b). The present ruling offers additional

guidance to the assessment under Article 15(b), but as the Court recognises that there is no hierarchical order

between the various types of serious harm and that an applicant may be exposed to several types of serious harm, there can be an overlap between Article 15 (b) and (c).

It is up to the domestic court to determine what this means for the applicants. In the Dutch implementation and application of Article 15(c) before this ruling, the family would not qualify for subsidiary protection under

this provision as the level of indiscriminate violence in Libya is not considered to reach the threshold required for Article 15 (c). After the present ruling, it is no longer sufficient to hold that the situation of indiscriminate

violence in Libya is not sufficiently severe. It must not also be determined whether, because of indiscriminate

violence, this family of six minor children, of which the father worked as a bodyguard for government officials, faces a real risk of serious harm.

Mark Klaassen, Department of Child Law, Leiden University.

SUGGESTED CITATION: Klaassen, M.; “The meaning of Article 15(C) Asylum Qualification Directive further unravelled: a discussion of X, Y and their six minor children (C-125/22)”, EU Law Live, 20/12/2023, https://eulawlive.com/analysis-the-meaning-of-article-15c-asylum-qualificationdirective-further-unravelled-a-discussion-of-x-y-and-their-six-minor-children-c-125-22-by-mark-klaassen/

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Risk of indirect refoulement cannot lead to the refusal of a Dublin transfer in the EU (C-228/21, C-254/21, C-297/21, C-315/21 and C-328/21)

by Lucia van der Meulen On the 30th of November, the Second Chamber of the Court of Justice published a judgment (joined cases C-228/21, C-254/21, C-297/21, C-315/21 and C-328/21, Brochure Commune – Refoulement indirect) that deals with several issues arising from the transfer of asylum seekers under the Dublin III Regulation 604/2013. The

questions posed by different Italian courts to the Court of Justice concern the Dublin interview, the right to

information and the possibility to refuse a transfer based on indirect refoulement. This analysis focusses on the

latter because of its significance for the application of the Dublin Regulation in national courts and the relationship with the European Convention on Human Rights.

Of the five cases in which preliminary questions were asked to the Court of Justice, three deal with the issue of indirect refoulement. Case C-254/21 concerns the transfer of an Afghan national to Sweden, case C-297/21 concerns the transfer of an Afghan national to Germany and case C-315/21 concerns the transfer of a Pakistani

national to Germany. The main question arising in these cases is if national courts are allowed to examine whether

there is a risk of indirect refoulement following a transfer to a Member State where an earlier asylum application has already been rejected, even when there are no systemic flaws in the asylum procedure and reception conditions

of the responsible Member State. In its judgment, the Court of Justice answers with a resounding no. National courts cannot examine whether there is a risk of infringement of the principle of non-refoulement in the Member

State responsible for the examination of the asylum application under the Dublin Regulation if there are no systemic deficiencies. The difference in interpretation of the conditions that grant asylum status in the Member State does not constitute systemic deficiencies.

The reasoning of the Court is concise and unambiguous. The systemic deficiencies doctrine and the fundamental

rights exception to transfers developed by the Court of Justice in previous cases like N.S. and others (C-411/10

and C-493/10), C.K. and others (C-578/16 PPU) and Jawo (C-163/17), are irrelevant to the present case. These

cases allow or mandate national courts to review the fundamental rights implications of a transfer. However, the Court of Justice argues that national courts cannot be allowed to assess the asylum qualification policy of another Member State as part of this fundamental rights assessment (unless there are systemic deficiencies in the

asylum system of the responsible Member State). Any other conclusion would jeopardise the central objectives

of the Dublin Regulation, which are to establish a clear and effective method for determining the Member State

responsible for an asylum application and to prevent secondary movement of asylum seekers. Therefore, only one

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Member State can be responsible for and decide on an asylum application. Following the principle of mutual trust, national courts must assume that the competent authority in the responsible Member State will correctly

assess and determine the risk of refoulement and that there will be effective remedies against that decision.

Moreover, even though Article 17 of the Dublin Regulation allows Member States to take on asylum applications

when they are not responsible under the Regulation, national courts still cannot compel Member States to use this discretion because of a risk of indirect refoulement.

However, EU law does not operate in isolation from other systems of law. Some of the earliest case law of the European Court of Human Rights (ECtHR) on fundamental rights exceptions to Dublin transfers dealt

precisely with the risk of indirect refoulement with the EU. In T.I. v. the U.K. (ECtHR, 7 March 2000), for

example, the ECtHR established that the principle of non-refoulement also applies in indirect scenarios and that it applies even when the intermediary country is a Member of the Dublin Convention. In the case of K.R.S. v. the U.K. (ECtHR, 2 December 2008), the ECtHR did, on the other hand, allow the U.K. authorities to presume the

compliance of Greece with human rights standards. Still, the ban on examining the risk of indirect refoulement (unless systemic deficiencies are established) the Court of Justice puts forward in the present case seems difficult to unite with the case law of the ECtHR.

Indirect refoulement has also been used by national courts. In 2022, the Dutch Council of State refused the transfer of an individual under the Dublin Regulation to Denmark. The Council of State argued that there is an evident and fundamental difference in policy where the individual would be eligible for asylum in the

Netherlands, but not in Denmark. This amounts to a fundamental deficiency, according to the Dutch Council of State, which meets the minimum level of severity set by the Court of Justice in Jawo. Additionally, the applicant

had sufficiently demonstrated that the Danish judiciary would not protect him against refoulement to Syria.

Therefore, the Council of State argued that a transfer would lead to a real risk of a violation of Article 3 ECHR and Article 4 of the Charter. However, this line of reasoning seems to have been overturned by the present judgment.

Lucia van der Meulen is a PhD Researcher at the Institute for European Law, KU Leuven. Her research is part of the ERC Project RESHUFFLE, Horizon 2020 research and innovation, grant no. 851621.

SUGGESTED CITATION: van der Meulen, L; “Risk of indirect refoulement cannot lead to the refusal of a Dublin transfer in the EU (C-228/21, C-254/21, C-297/21, C-315/21 and C-328/21)”, EU Law Live, 18/12/2023, https://eulawlive.com/analysis-risk-of-indirect-refoulement-cannot-lead-tothe-refusal-of-a-dublin-transfer-in-the-eu-c-228-21-c-254-21-c-297-21-c-315-21-and-c-328-21-by-lucia-van-der-meulen/

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SYMPOSIUM THE DIGITAL MARKETS ACT

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DMA Enforcement: Setting the Scene for Effective Compliance Antoine Babinet and Katarzyna Sadrak On 5 September 2023, digital regulation in Europe marked a seminal moment. Through a series of designation decisions, the European Commission (“Commission”) determined the initial scope of the Digital Markets Act (“DMA”). A total of 6 undertakings – Alphabet, Meta, Apple, Microsoft, Amazon and ByteDance – were designated as gatekeepers in relation to 22 of their core platform services (“CPS”).

While these designations mark a significant milestone, they are part of a longer journey toward achieving DMA

objectives of more fairness and contestability on the ground. The next key milestone, approaching quickly, is on 7 March 2024 when the gatekeepers will need to comply with the DMA in relation to their designated services.

This Op-Ed offers some insights from the enforcer’s perspective on the designation process and its challenges as

well as the ongoing implementation steps towards effective DMA compliance, and ultimately towards a new face of digital markets in Europe.

I. Designation Process A. Delineation of Core Platform Services The process for the designation of gatekeepers under the DMA raised interesting questions. One concerned the

delineation of the CPSs (i.e., the exact scope of the service to be designated) and the second the establishment of end user and business user thresholds.

The threshold question was of course key, as it determined whether the quantitative presumptions apply. In

most cases though, the fact that thresholds were met was straightforward given the prevalence of these services.

Nevertheless, companies in some cases struggled to establish the right proxies.

As for the delineation, that also triggered intense discussions as it had implications for example on the user

numbers to be taken into account. Different gatekeepers had different approaches. Interestingly, there was no common trend towards either narrow or wide delineation. For example, Apple argued for a narrow approach

whereby each of its five app stores (on iPhones, iPads, Macs, iWatches and Apple TVs) and three web browsers

(on iPhones, iPads and Macs) should constitute distinct CPSs, possibly to minimize the scope of DMA impact on the company as only some of them met the quantitative thresholds (see the Apple designation decision).

The Commission took a position that the App Store and Safari respectively constitute two CPSs and should not be further delineated as a series of distinct per device CPSs. This was because the App store is used for the same

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purpose of intermediating the distribution of app irrespective of the device through which it is accessed. Similarly, Safari is always used for the same purpose to offer, access and interact with web content. This wider delineation resulted in the designation of Apple on a perimeter covering the App Store and Safari across all devices.

In other cases, the Commission found that gatekeepers defined their CPSs too widely. For example, the Commission disagreed with Meta’s encompassing view that Facebook and Instagram should constitute a single online networking CPS, comprising all services integrated in Facebook and Instagram, as well as Meta’s advertising services (see the Meta designation decision).

On the distinction between Facebook and Instagram, even if they are both online social network services, they are entirely distinct services with different platforms, brands, marketing and log-in processes. The Commission therefore logically concluded that they are two distinct CPSs.

Contrary to Meta, the Commission also considered that several services which are integrated in the Facebook

platform are not part of the online social network service CPS. This is the case for Marketplace which is a CPS on its own and falls within the DMA definition of an online intermediation service. This is also the case for Facebook

Dating or Facebook Gaming which, despite not being CPSs, were found to fall outside of the Facebook social networking CPS.

The Commission’s final take on the delineation of Meta’s services has concrete compliance implications given that

certain DMA obligations such as Article 5(2) DMA – i.e., the requirement to seek consent for data combination

– only kick in between separate services. While the scope of Article 5(2) DMA would have been largely reduced under Meta’s proposed broad delineation, this provision will apply between several Meta services that have been

delineated as distinct services. The obligation to request new consents warrants significant changes in how Meta’s platforms currently operate.

B. Assessment of Rebuttal Submissions The legislator made a conscious choice of a DMA architecture based on a quantitative presumption mechanism revolving around precise thresholds. This was to ensure a straightforward scoping process and avoid unnecessary

friction from economic or legal analysis which, as experience has sometimes proved, can lead to significant delays.

As a counterweight to a presumption-based system, the legislator introduced a mechanism to correct false positives

in the form of a (facultative) rebuttal request. To strike a balance, the DMA therefore enables undertakings to seek

to rebut the quantitative presumption (see Article 3(5) DMA) while making clear that such rebuttal can only be accepted exceptionally.

The Commission analysed all submitted rebuttal requests and decided, on the one hand, to reject ByteDance’s

rebuttal request and designate TikTok and, on the other hand, to accept the arguments presented by Samsung, Microsoft and Alphabet as they sufficiently substantiated that Samsung Internet Browser, Microsoft’s Outlook. com and Alphabet’s Gmail do not meet the requirements for being designated as gatekeepers.

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In the case of Microsoft’s Bing online search engine, Microsoft’s Edge web browser, Microsoft Advertising

service and Apple’s iMessage, the Commission opened “rebuttal” market investigations to further assess whether to accept or reject the rebuttal submissions. These market investigations are ongoing. To reach a quick landing

on designations, and in line with the legislator’s objective to ensure a straightforward designation process, these market investigations follow a short timeline with an indicative target of five months (i.e., decisions due by February 2024).

C. Further Designations Besides the “rebuttal” mechanism to correct false positives, the Commission has also the tools to correct false negatives. Through a “qualitative” market investigation, the Commission can designate undertakings as gatekeepers for CPSs which do not meet the quantitative thresholds.

The Commission is already using this procedure to decide whether Apple should be designated as a gatekeeper

for iPadOS operating system. The assessment of the potential gatekeeping role of iPadOS is ongoing and will conclude as soon as possible within the 12 months period provided for in the DMA.

Once the “rebuttal” and “qualitative” investigations wrap up, the DMA scope will be adjusted. However, further designations might still happen as the Commission can initiate new “qualitative” investigations if it has indications that gatekeeper conditions might be met. Undertakings must also continuously self-assess and notify the Commission when their CPSs meet the quantitative designation thresholds (see Article 3(3) DMA).

It may therefore be that some services which fell short in the first batch of designations might meet these thresholds

in the future due to growth. For example, Booking “expects that [the qualitative thresholds for its designation] will likely be met at the end of 2023, in which case the company would expect to notify the European Commission of that fact within the required deadlines.”

The Commission may reconsider, amend or repeal the designation decision at any moment if the facts have changed (see Article 4(1) DMA).

II. Compliance Process Once designated, gatekeepers have six months to comply with all DMA obligations. For the six undertakings designated in September 2023 the compliance deadline is on 7 March 2024.

While it is the gatekeeper’s responsibility to comply, the Commission takes an active role in this process. The ongoing compliance discussions with the gatekeepers and engagement with third parties have intensified post-

designation. Discussions are more or less advanced depending on the gatekeepers and their willingness to engage constructively, as well as depending on the types of obligations and the technical questions they raise.

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As a general principle, the Commission strongly encourages gatekeepers to work with stakeholders when developing compliance solutions, emphasizing that these solutions must work in practice. As discussions

progress and gatekeepers’ proposals become more mature, the Commission will be open to receiving market feedback through different formats, including bilateral meetings, public and closed-door workshops, and written

consultations. That said, ultimately it is the gatekeeper’s responsibility to implement DMA-compliant solutions by 7 March 2023.

The Commission’s dialogue and feedback loop with third parties will continue after 7 March 2023. A key

instrument will be the compliance report that gatekeepers need to submit to demonstrate their effective compliance.

The template published on the DMA website after public consultation specifies the minimum information that

gatekeepers should provide. Importantly, the DMA imposes the publication of a non-confidential summary to create transparency, allowing third parties to assess the gatekeepers’ DMA compliance and provide feedback. The Commission will insist that all non-confidential summaries be meaningful and comprehensive.

III. Conclusions The DMA reaches a pivotal stage as the deadline for the gatekeepers to comply gets closer. Compliance preparations are well under way with the gatekeepers already starting to implement concrete changes (e.g., see Microsoft blog

post).

After 7 March 2023, the Commission will move to a phase where it will assess compliance solutions as implemented by the gatekeepers. It will also be able to rely on the full array of DMA enforcement powers, including the

ability to initiate investigations for non-compliance and impose hefty fines, to continue working towards full and effective compliance. The strides made in compliance preparations are critical building blocks for full and effective DMA compliance, and fairer and more contestable digital markets in Europe.

Antoine Babinet is a Deputy Head of Unit J1 – Digital Platforms I, Directorate-General for Competition, European Commission.

Katarzyna Sadrak is a Case Handler at Unit J1 – Digital Platforms I, Directorate-General for Competition, European Commission.

All views expressed in this paper are strictly personal and should not be construed as reflecting the opinion of the European Commission. Comments are welcome at antoine.babinet@ec.europa.eu and katarzyna.sadrak@ec.europa.eu.

SUGGESTED CITATION: Babinet, A and Sadrak, K.; “DMA Enforcement: Setting the Scene for Effective Compliance”, EU Law Live, 18/12/2023, https://eulawlive.com/competition-corner/op-ed-dma-enforcement-setting-the-scene-for-effective-compliance-by-antoine-babinet-and-katarzynasadrak/

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THE LONG READ

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The Effectiveness of EU’s Fiscal Rules Can only be Ensured by the Member States: Reflections on the Ruling of the Federal Constitutional Court on Germany’s Budget Phedon Nicolaides 1 and Alessandro Cuomo 2 Introduction A year ago the European Commission initiated discussion on the EU’s fiscal rules with its Communication on orientations for a reform of the EU economic governance framework.3 The Council of the EU adopted most of the core ideas of the Communication on 14 March 2023. Although so far no agreement has been achieved on the details, Member States appear to accept that, among other things, the limit of 3% of GDP for budget deficits defined in the Treaty on the Functioning of the European Union [TFEU] will be kept, enforcement should be made more effective and Member States should take ownership of necessary reforms and decisions on sanctions for breaking fiscal rules.4 That these issues are still being discussed is not surprising, given that Member States even before the pandemic routinely exceeded the 3% threshold for budget deficits [and the limit of 60% of GDP for public debt]. From another perspective, the discussion on these issues is indeed surprising given that the vast majority of EU Member States have acceded to the Treaty on Stability, Coordination and Governance [TSCG] which lays down even stricter limits and urges Contracting Parties to enshrine those limits in their constitutions.5 The purpose of this Long-Read is to argue that the recent decision of the German Federal Constitutional Court [FCC] on Germany’s supplementary budget demonstrates that in addition to rules, the EU also needs sensible national procedures.

Why rigid rules?

Pursuant to its Article 1(1), the purpose of the TSCG is to ‘strengthen the economic pillar of the EU Economic and Monetary Union’. Its Title III seeks to improve the solidity of the Contracting Parties’ public finances through the introduction of rules on budgetary discipline in national legal frameworks.

1. Professor, University of Maastricht and University of Nicosia.

2. Ph.D. Candidate in EU law, University of Maastricht.

3. See Commission Communication on orientations for a reform of the EU economic governance framework, COM(2022) 583 final, 11 November 2022.

4. See Council Conclusions of 14 March 2023. See also Council Press Release of 14 March 2023.

5. The TSCG can be accessed here.

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In particular, Article 3 of the TSCG aims to preventively limit the recourse of national governments and parliaments to excessive deficit as a tool to fund public policies. Paragraph (1) of the Article stipulates that the annual budgets of Contracting Parties be balanced or in surplus and any deficit not to exceed 0.5% of GDP. In order to ensure that Contracting Parties comply, Article 3(2) requires that ‘the rules set out in paragraph 1 shall take effect in the national law of the Contracting Parties … through provisions of binding force and permanent character, preferably constitutional, or otherwise guaranteed to be fully respected and adhered to throughout the national budgetary processes.’

The purpose of Article 3(2) of the TSGC is to provide an inflexible constraint of constitutional nature to the ability or inclination of governments to run budgetary deficits. The government of the day should not be able to run a deficit which will unavoidably create a problem of mounting debt for the next government.

However, deviations from the ‘0.5%’ rule are permitted in ‘exceptional circumstances’ which are defined by Article 3(3) as ‘an unusual event outside the control of the Contracting Party concerned which has a major impact on the financial position of the general government or to periods of severe economic downturn as set out in the revised Stability and Growth Pact, provided that the temporary deviation of the Contracting Party concerned does not endanger fiscal sustainability in the medium-term.’

Therefore, an exceptional circumstance is an event that has the following features. It must be i) unusual, ii) outside the control of a Contracting Party, and iii) must have a major impact on public finances. The deviation from the 0.5% rule must be i) temporary and ii) must not endanger fiscal sustainability.

Germany was the most fervent supporter of a so-called ‘constitutional brake’ on budgetary deficit. Yet, on 15 November 2023, the FCC held, in case 2 BvF 1/22, that the Second Supplementary Budget Act 2021 was incompatible with Article 109(3), Article 110(2) and Article 115(2) of the German constitution [‘Basic Law’] that had incorporated the provisions of the TSCG.6 What does the Basic Law require?

Article 109(3) of the Basic Law lays does the principle that ‘the budgets of the Federation and the Länder shall, in principle, be balanced without revenue from credits. The Federation and Länder may introduce rules intended to take into account, symmetrically in times of upswing and downswing, the effects of market developments that deviate from normal conditions, as well as exceptions for natural disasters or unusual emergency situations beyond governmental control and substantially harmful to the state’s financial capacity. … Details for the budget of the Federation shall be governed by Article 115’.7 Article 109(3) of the Basic Law incorporates the conditions for emergency borrowing established by Article 3(3) of the TSCG. Three aspects of Article 109(3) of the Basic Law should be noted. First, the prohibition of deficits is not absolute because budgets have to be balanced ‘in principle’. Second, a deviation is allowed in certain circumstances such as natural disasters or emergencies. Third, the precise process of a deviation from balanced budget is laid down in Article 115 of the Basic Law.

6. An English summary of the main points of the judgment is provided by the FCC itself. It can be accessed here.

7. Germany’s Basic Law can be accessed here.

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Article 115(2) defines limits for borrowing and a procedure for defining a deviation. Accordingly, ‘revenues and expenditures shall in principle be balanced without revenue from credits. This principle shall be satisfied when revenue obtained by the borrowing of funds does not exceed 0.35 per cent in relation to the nominal gross domestic product. … The regulation of details, …, requires a federal law. In cases of natural catastrophes or unusual emergency situations beyond governmental control and substantially harmful to the state’s financial capacity, these credit limits may be exceeded on the basis of a decision taken by a majority of the Members of the Bundestag.’

Article 115(2) lays down a deficit threshold that is lower or stricter than the 0.5% limit defined in the TSCG. That stricter threshold may be exceeded only in the case of natural disasters or emergency situations and only after a decision of the Bundestag.

Lastly, Article 110(2) of the Basic Law establishes that the ‘budget for one or more fiscal years shall be set forth in a law enacted before the beginning of the first year and making separate provision for each year’.

Why did the FCC strike down the second supplementary budget?

According to the FCC’s press release 101/2023, the subject of the FCC’s judicial review was the Second Supplementary Budget Act 2021, that the German Bundestag had adopted to amend the federal budget for 2021. The main purpose of the Second Supplementary Budget was to repurpose a total of EUR 60 billion, already authorised in the federal budget for 2021, to the Energy and Climate Fund (then renamed the Climate and Transformation Fund). The source of the repurposed envelope of EUR 60 billion in the federal budget, however, consisted of additional federal borrowing in excess of 0.35% of GDP for the fiscal year 2021. That additional borrowing was authorised by the Bundestag with the First Supplementary Budget Act 2021 in accordance with Article 115 of the Basic Law. In a nutshell, the Bundestag’s justification for the emergency borrowing in the First Supplementary Budget was to address the exceptional needs arising from the COVID-19 pandemic. However, there was no mention of any intention to fund the Energy and Climate Fund. At the end of the 2021 fiscal year it became apparent that the additional borrowing had not been used. Consequently, the Second Supplementary Budget Act repurposed retroactively, in February 2022, for the then concluded 2021 fiscal year, the EUR 60 billion to the Climate and Transformation Fund.

In essence, with the Second Supplementary Budget Act the Bundestag tried to hit two birds with one stone.

First, the law attempted to make use of an already authorised, but untapped, envelope of emergency funding for a purpose different than the one established in the original authorisation law. Second, the law practically sought to issue EUR 60 billion of federal debt in 2022 without having such debt counted towards the borrowing limit for the fiscal year 2022, on the basis of the argument that such borrowing had been authorised for the fiscal year 2021.

The FCC held that ‘the Second Supplementary Budget Act 2021 does not satisfy the constitutional requirements for emergency borrowing’ for the following three reasons. ‘First, the legislator failed to sufficiently demonstrate the necessary factual connection between the emergency and the crisis management measures taken in response.

Second, decoupling the declaration of an emergency pursuant to Art. 115(2) sixth sentence of the Basic Law from the actual use of the borrowing authorisations is incompatible with the constitutional principles of yearly budgeting (Jährlichkeit) and annuality (Jährigkeit). The de facto unlimited use of emergency borrowing authorisations in subsequent fiscal years without counting them towards the “debt brake” rule (Schuldenbremse) for those years, and instead counting them as “debt” for the 2021 fiscal year is therefore impermissible. Third, the adoption of

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the Second Supplementary Budget Act 2021 after the end of the 2021 fiscal year violates the principle set out in Art. 110(2) first sentence of the Basic Law that the budget must be determined in advance (Vorherigkeitsgebot).’

What is interesting for the purposes of this Long-Read is the FCC’s findings that, first, there must be a link between an emergency and the need for borrowing and, second, funds borrowed for emergency purposes must be used to address that particular emergency.

It is, therefore, clear that a government cannot exceed the deficit threshold at will. It must justify why an emergency necessitates borrowing that exceeds that threshold and it must also demonstrate that the borrowed funds are used to remedy the impact of the emergency.

Yet, the press reported a week after the FCC ruling that Germany was planning a vote in the Bundestag to suspend the ‘debt brake’ for a fourth year.8 Even if the Bundestag musters a majority in favour of the suspension, it must also provide sufficient explanation why the pandemic necessitates borrowing to fund environmental and transition measures. If the FCC is petitioned to review the legality of any new authorisation, it may still disagree with the claimed causal link.

Indeed, the FCC in its ruling of 15 November held that ‘a factual connection is necessary between the natural catastrophe or unusual emergency situation on the one hand, and the exceeding of credit limits on the other. In assessing whether such a connection exists, the legislator has a wide margin of assessment. The Federal Constitutional Court does not conduct a review of the proportionality of the emergency borrowing. Nevertheless, the legislator has a burden of substantiation to make it possible for the Federal Constitutional Court to review whether the legislator’s decisions on borrowing are plausible and tenable.’

At first sight, it would appear that proving that a decision is ‘plausible’ and ‘tenable’ is not a difficult task at all, given the legislator’s ‘wide margin of assessment’ and the non-application of the principle of proportionality to emergency borrowing. However, the FCC also observed that ‘the COVID-19 pandemic had already been in existence for almost two years. The longer ago the event triggering a crisis occurred – thus allowing the legislator more time for decision-making – and the more indirect the effects of a crisis are, the narrower the legislator’s margin of assessment becomes. This also entails stricter requirements regarding the legislator’s burden of substantiation, all the more so when the legislator – as in the present case – makes use of the possibility of emergency borrowing repeatedly within a fiscal year or in consecutive fiscal years.’ It is not only the causality between the emergency and the needs of the economy that wanes as time passes. It is also the continuation of the government’s response to the emergency with the same policy instruments. That is why, ‘the longer a crisis goes on and the more extensively the legislator has made use of emergency borrowing, the more detailed reasons the legislator must give as to why the crisis continues and why its planned crisis management measures continue to be suitable. In particular, the legislator must demonstrate whether the measures taken by the legislator in the past were effective and whether it has drawn conclusions for the suitability of future measures.’

If Germany is to continue with the same policies, it must also show that they remain suitable and effective. This is a new test that goes beyond a demonstration of causality. The reasoning of the FCC was, in essence, that if throwing money at a problem did not resolve it, then borrowing more and continue with the same policy would probably be ineffective as well.

8. Financial Times, “Germany to Suspend Debt Brake for Fourth Year Running”, 23 November 2023.

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What lessons can be drawn from the FCC’s decision for standards of review of budgetary policies?

The need to subject budgetary policy, and in particular excessive borrowing that augments public debt, to strict legal rules has been long advocated.9 Budgetary policies and debt sustainability are in many respects amenable to objective evaluation, and they can thus be ‘rationalised’ through the creation of constitutional limits binding on governments and parliaments. Where to draw those limits and to what extent they can be reviewable by courts, however, remain highly controversial issues.

There is hardly any doubt that governments should be allowed to issue debt in emergency situations. Borrowing in times of crises can be the only means of effectively stabilising macroeconomic shocks, such as the global financial crisis of 2008-2010, the COVID-19 pandemic and the spike in energy prices resulting from the Russian invasion of Ukraine. However, the tendency of governments to borrow and spend beyond their means even in the absence of crises is a threat to budgetary sustainability. In the EU, and in particular in the Economic and Monetary Union, Member States’ budgetary sustainability is not only a ‘national’ public good, but also a ‘European’ one. The TSCG, in this sense, can be regarded as the ‘constitutionalisation’ of rational budgetary policy which includes restrictions on a government’s borrowing and, at the same time, exceptions under certain conditions in cases of emergencies.

The relevance of the FCC’s judgement to the ongoing discussion on reform of the EU’s fiscal rules is that it demonstrates that an effective fiscal framework does not only need clear European rules. Some form of control and analysis is necessary to implement such rules at national level. Case 2 BvF 1/22 constitutes the first instance, known to us, of national judicial review of a Member State’s compliance with national rules implementing Article 3 of the TSCG. As Article 109(3) of the Basic Law largely incorporated the requirements for emergency borrowing enshrined in Article 3(3) of the TSCG, the judgement sets a precedent that could be studied – or replicated – by other national courts, when their jurisdiction permits so. Three lessons may be drawn for reform of national procedures implementing European fiscal rules.

First, case 2 BvF 1/22 has demonstrated that judicial review can strengthen compliance with European fiscal rules. However, judicial proceedings can take a long time before they are concluded. For this reason, any meaningful reform of the EU’s fiscal rules should also look into removing obstacles to speedy national judicial procedures on budgetary matters. At the same time, judicial review always remains a remedy of last resort. As proposed in the Commission Communication of November 2022, other national institutions could be endowed with the power to review budgetary plans. Such institutions should be independent and entrusted with powers to stop non-compliant spending.

Second, institutions in charge of assessing national budgetary plans need to develop meaningful standards of review. In this respect it is rather interesting that the FCC explicitly stated that its review was not based on a proportionality test. In general, a proportionality test comprises three components: suitability, necessity and proportionality strictu sensu. Despite the FCC’s statement, however, the language of its press release evokes the analytical framework of what may be called a ‘light’ proportionality test. Demonstrating the factual connection between the emergency and the need for exceptional borrowing looks like the ‘necessity test’ in the proportionality principle as expounded by the Court of Justice of the EU.10 In fact, the FCC goes further. When it specifies that 9. See, for example, Nicholas Gruen, Making Fiscal Policy Flexibly Independent of Government, Journal of Policy Analysis and Reform, 1997, vol. 4(3), pp. 297-307.

10. See, for example, C-62/14, Gauweiler, EU:C:2015:400, para. 67 and C-343/09, Afton Chemical, EU:C:2010:419, para. 45.

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the requirement for justification become stricter as the crisis becomes more distant in the past, it essentially establishes a presumption that the longer ago the crisis happened, the less of an emergency emanates from that crisis.

Overall, the FCC seems to apply a ‘reasonability check’, as it asks the Bundestag to ‘substantiate’ how its decisions on borrowing are ‘plausible’ and ‘tenable’.

In addition, the FCC appears to require what looks like a ‘suitability test’. The justification for emergency borrowing must also be based on an assessment of the effectiveness of the extra funds. Governments and parliaments in the EU should carry out some kind of impact assessment before they embark on emergency borrowing and emergency spending. It is interesting to note that the application of a rationality check to EU Member States’ budgetary policy would seek the same outcome as the reform of the EU fiscal rules proposed by the Commission.

Both the check and the reform would spur ‘a greater debate at national level’11 and thus ‘a higher degree of political buy-in and ownership’ of budgetary policy and emergency borrowing.

Third, there should be limits to the review of budgetary plans and emergency borrowing. Courts or independent bodies should not second-guess or excessively restrict political discretion of legislators. In this respect, the FCC is right in clarifying that the legislature enjoys ‘a wide margin of assessment’ to draft special budgets authorising emergency borrowing beyond the minimum thresholds. At the same time, the FCC asks the legislator to demonstrate ‘whether the measures taken [...] in the past were effective and whether it has drawn conclusions for the suitability of future measures’ before authorising new emergency borrowing. But the decision whether new borrowing can effectively remedy the harm caused by a crisis will need to balance conflicting objectives and will likely be based on subjective judgment. The German Second Supplementary Budget provided a clear-cut case of a Member State’s legislature violating Article 3 of the TSCG. Shifting emergency borrowing originally authorised for fighting the COVID-19 pandemic into a climate fund without justification clearly falls foul of the preventive rationale of that Article 3 TSGC. The FCC was right in quashing the law. In less clear-cut cases, however, EU or national courts or independent bodies may not have sufficient information or objective grounds to object to emergency borrowing plans.

The recent history of the FCC’s case-law can, perhaps, offer relevant insights on where the limits to review should lie. In case 2 BvR 859/1512, the FCC reviewed the exercise of the ECB’s discretion in designing the ‘Public Sector Purchase Programme’ and concluded that the ECB exceeded both its discretion and competence under EU law.

One of the main criticisms levelled at the judgement was that the standards of review used by the FCC to review the ECB’s programme were so high to appear, in themselves, discretional.13 To avoid similar criticism, the standards of review of budgetary policy should not exceed the boundaries of a reasonability check, so that the review itself remains reasonable.

11. Commission Communication on orientations for a reform of the EU economic governance framework, op. cit.

12. 2 BvR 859/15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15.

13. See, for example, Matthias Wendel, Paradoxes of Ultra-Vires Review: A Critical Review of the PSPP Decision and Its Initial Reception, German Law Journal, 2020, vol. 21(5), pp. 979-994.

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HIGHLIGHTS OF THE WEEK

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Regulation (EU, Euratom) 2023/2841 laying down measures for a high common level of cybersecurity at the institutions, bodies, offices and agencies of the Union, published in OJ Monday 18 December

Official publication was made of Regulation (EU, Euratom) 2023/2841 of the European Parliament and of the Council of 13 December 2023 laying down measures for a high common level of cybersecurity at the institutions, bodies, offices and agencies of the Union.

Read on EU Law Live

Six Union acts regulating requests to apply reduced rates of VAT are officially removed from the EU acquis Monday 18 December

Official publication was made of the Communication from the Commission formally recognizing that certain acts of Union

law concerning requests to apply reduced rates of VAT to supplies of natural gas, electricity and district heating have become obsolete.

Read on EU Law Live

Final Report of the Hearing Officer in case concerning proposed acquisition of VOO and Brutélé’ by Orange Belgium published in OJ Monday 18 December

Pursuant to Articles 16 and 17 of Decision 2011/695/EU of the President of the European Commission on the function and terms of reference of the hearing officer in certain competition proceedings, official publication has been made of the Final Report of the Hearing Officer in Case M.10663 – Orange/VOO/Brutélé.

Read on EU Law Live

Court of Justice to rule on VAT application to unfulfilled construction contracts Monday 18 December

The Oberster Gerichtshof in Austria submitted a request for a preliminary ruling (Case C-622/23, rhtb) to the Court of Justice, the key question of which revolves around whether the amount owed by a customer to a contractor, even when the

work has not been fully carried out due to circumstances attributable to the customer (such as cancellation), is subject to Value Added Tax (VAT).

Read on EU Law Live

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EU and Kenya sign Economic Partnership Agreement with focus on sustainability Monday 18 December

The EU and Kenya officially signed an Economic Partnership Agreement, signaling a commitment to strengthen bilateral trade, encourage investment flows, and foster sustainable economic growth.

Read on EU Law Live

Preliminary reference on the criteria to establish the existence of an agreement prohibited under Article 101 TFEU, published in OJ Monday 18 December

The Official Journal of the EU published a request for a preliminary ruling from the Administratīvā apgabaltiesa (Latvia), lodged on 4 October 2023, in Tallinna Kaubamaja Grupp and KIA Auto (C-606/23).

Read on EU Law Live

Court of Justice to provide guidance on the compatibility of an exclusive distribution agreement with the parallel imposition requirement Monday 18 December

A request for a preliminary ruling from the Hof van beroep te Antwerpen (Belgium), lodged on 21 September 2023, in Beevers Kaas (C-581/23) was officially published in the OJ. Read on EU Law Live

Commission launches preliminary investigation against X under the DSA Monday 18 December

The European Commission opened formal proceedings to assess X’s conduct in the light of the Digital Services Act (DSA) in

areas linked to risk management, content moderation, dark patterns, advertising transparency and data access for researchers.

Read on EU Law Live

EPPO raises concerns regarding the proposed legislative amendments by the Slovak Government Tuesday 19 December

The European Chief Prosecutor addressed the European Commission, under Regulation (EU) 2020/2092 on a general regime of conditionality for the protection of the EU budget (‘Conditionality Regulation’), drawing attention to the recent legislative amendments proposed by the Slovak government.

Read on EU Law Live

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Council agrees to extend emergency measures to address energy crisis Tuesday 19 December

Ministers reached a political agreement to extend emergency measures designed to tackle the energy crisis resulting from Russia’s war of aggression against Ukraine.

Read on EU Law Live

Council and Parliament reach a deal on the core political elements of five key regulations that will thoroughly overhaul the EU’s legal framework on asylum and migration Wednesday 20 December

The Spanish presidency of the Council and the European Parliament achieved a significant breakthrough by reaching a

provisional agreement on the core political aspects of five crucial regulations, marking a comprehensive overhaul of the European Union’s legal framework on asylum and migration.

Read on EU Law Live

General Court dismisses claim for compensation following Commission’s error in finding unlawful State aid in Italian banking sector Wednesday 20 December

The Fourth Chamber of the General Court, sitting in its Extended Composition formation, handed down its judgment in

Banca Popolare di Bari v Commission (T-415/21), a case regarding an action by which the applicant claimed that the EU, represented by the Commission, should be ordered to pay to the applicant the sum of EUR 280 million as compensation for

material damage, as well as an adequate amount of compensation for non-material damage, caused by Commission Decision (EU) 2016/1208 on State aid granted by Italy to the bank Tercas.

Read on EU Law Live

General Court annuls SRB Decision on 2021 ex ante contributions related to certain French and German banks Wednesday 20 December

The General Court issued its judgments in Banque postale v SRB (Case T-383/21), Confédération nationale du Crédit mutuel

and Others v SRB (T-384/21), BPCE and Others v SRB (T-385/21), Société générale and Others v SRB (T-387/21), Crédit agricole and Others v SRB (T-388/21), Landesbank Baden- Württemberg v SRB (T-389/21) and BNP Paribas v SRB (T397/21) concerning the calculation of the 2021 ex ante contributions to the Single Resolution Fund (SRF).

Read on EU Law Live

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General Court dismisses majority of pleas in two cases concerning anticompetitive conduct in the area of Euro Interest Rate Derivatives Wednesday 20 December

The Tenth Chamber of the General Court rendered its judgment in two cases concerning actions against the Commission

Decision C(2016) 8530 final, in case AT.39914 — Euro Interest Rate Derivatives — of 7 December 2016, adopted in light of alleged anti-competitive conduct by the applicants, in breach of Article 101 TFEU: JPMorgan Chase and Others v Commission (T-106/17) and Crédit agricole and Crédit agricole Corporate and Investment Bank v Commission (T-113/17).

Read on EU Law Live

11 actions by German municipal authorities against Commission’s approval of acquisition of distribution and retail energy business dismissed by the General Court Wednesday 20 December

The Fifth Chamber of the General Court, sitting in its Extended Composition formation, delivered its judgment in 11 cases

concerning actions brought against by the German municipal authorities against the Commission’s decision approving the acquisition of the distribution and retail energy business as well as some generation assets of Innogy by E.ON. Read on EU Law Live

Commission’s decisions confirming State aid granted to Air France as compatible with the internal market annulled by the General Court Wednesday 20 December

The Eighth Chamber of the General Court, sitting in its Extended Composition formation, rendered its judgment in Ryanair

and Malta Air v Commission (Air France ; COVID-19) (T-216/21) and Ryanair and Malta Air v Commission (Air France-KLM and Air France ; COVID-19) (T-494/21), cases concerning actions against the Commission’s decision approving State aid granted to Air France in light of the COVID-19 pandemic.

Read on EU Law Live

General Court rules on Italy’s port authorities’ taxation ruled as state aid Wednesday 20 December

The General Court annulled a decision by the European Commission regarding a taxation regime, adopted by Italy, for Italian ports and the exemption from corporate income tax (IRES): Autorità di sistema portuale del Mar Ligure occidentale and Others v Commission (T-166/21).

Read on EU Law Live

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General Court rules on sanctions cases against Council, involving among others, the former President of Ukraine Wednesday 20 December

In Abramovich v Council (T-313/22), the General Court dismissed the legal action brought by Roman Arkadyevich Abramovich, a businessman of Russian, Israeli, and Portuguese nationalities, upholding the restrictive measures imposed on

him by the Council. Abramovich, the majority shareholder in the Russian steel and mining giant Evraz, faced these measures following Russia’s attack on Ukraine in February 2022.

Read on EU Law Live

Commission designates three more Very Large Online Platforms under the Digital Services Act, imposing stricter rules Wednesday 20 December

The European Commission announced the designation of three Very Large Online Platforms (VLOPs) – Pornhub, Stripchat, and XVideos – under the Digital Services Act (DSA).

Read on EU Law Live

Council and Parliament reach agreement on streamlined single permit directive for legal migration Thursday 21 December

Representatives from member states’ Council (Coreper) endorsed a provisional agreement between the Spanish presidency

of the Council and the European Parliament regarding an update to an existing EU law governing legal migration to the EU labor market.

Read on EU Law Live

EU law precludes legislation which permits a refusal to grant social assistance to the mother of an EU migrant worker who is dependent on that worker Thursday 21 December

The Court of Justice handed down a judgment, by which it held that EU law precludes national legislation which allows national authorities to refuse to grant a social assistance benefit to a direct relative in the ascending line who is dependent on a worker who is an EU citizen.

Read on EU Law Live

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Council reaches agreement on negotiating mandate concerning sustainable finance Thursday 21 December

The Council reached an agreement on its negotiating mandate on a proposal for new rules concerning environmental, social and governance (ESG) ratings, with the aim of boosting investor confidence in sustainable products.

Read on EU Law Live

European Public Prosecutor’s Office: Judicial review of investigation measures in other Member States must be limited to matters relating to the implementation of the cross-border investigation measures Thursday 21 December

The Court of Justice handed down its judgment in G.K. and Others (C-281/22), a case concerning the scope of the judicial review of cross-border investigation measures of the European Public Prosecutor’s Office (EPPO).

Read on EU Law Live

Poland: An adjudicating panel of the Extraordinary Review and Public Affairs Chamber of the Supreme Court does not constitute an independent and impartial tribunal previously established by law Thursday 21 December

The Court of Justice delivered its judgment in Krajowa Rada Sądownictwa (Continued holding of a judicial office) (C718/21), a case concerning the Extraordinary Review and Public Affairs Chamber (ERPAC) of the Polish Supreme Court.

Read on EU Law Live

Court of Justice clarifies consumer rights in car leasing and credit agreements Thursday 21 December

The Court of Justice delivered its judgment in Joined cases BMW Bank, Volkswagen Bank and Audi Bank, and C. Bank and Bank D. K. ( Joined cases C-38/21, C-232/21, C-47/21), in the context of a number of disputes between consumers and financial institutions linked to motor vehicle manufacturers.

Read on EU Law Live

Court of Justice rules on compatibility of sporting associations’ rules with EU competition law and free movement Thursday 21 December

The Court of Justice handed down three judgments concerning the compatibility of certain rules adopted by sporting associations with EU competition law and the fundamental market freedoms.

Read on EU Law Live

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COFIDIS: Portuguese tax on the liability of credit institutions compatible with Directive 2014/59/EU, incompatible with freedom of establishment Thursday 21 December

The Court of Justice delivered its judgment in COFIDIS (C-340/22), a request for a preliminary ruling from Portugal

concerning the compatibility of a tax on the liability of credit institutions with Directive 2014/49/EU and Article 49 TFEU. Read on EU Law Live

Court of Justice rules on public procurement: exclusion criteria, competition, and administrative motivation Thursday 21 December

The Court of Justice rendered a judgment on a preliminary ruling, originating from Portugal, concerning public procurement procedures, specifically the interpretation of Directive 2014/24/EU. Read on EU Law Live

Court of Justice sets out conditions for lawful data processing by medical services of health insurance providers Thursday 21 December

The Court of Justice handed down its judgment in Krankenversicherung Nordrhein (C-667/21), a prequest for a preliminary reference from the Federal Labour Court in Germany concerning the interpretation of the GDPR. Read on EU Law Live

Packaging, waste, and environmental protection: Court of Justice’s judgment in Papier Mettler Italia Thursday 21 December

The Court of Justice addressed a crucial case concerning the compatibility of national regulations with EU directives in the realm of environmental protection: Papier Mettler Italia (C-86/22).

Read on EU Law Live

Official Journal of the EU publishes Commission Notice of initiating anti-subsidy proceedings against imports of certain chemical substances from China Thursday 21 December

Official publication was made of a notice of initiation of an anti-subsidy proceeding by the Commission, concerning imports of certain alkyl phosphate esters, originating in the People’s Republic of China.

Read on EU Law Live

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Excise duty and consumption limits clarified by Court of Justice Thursday 21 December

The Court of Justice has delivered its judgment in CDIL (C-96/22) concerning EU rules on general arrangements for excise duty.

Read on EU Law Live

Court of Justice: Executing court cannot refuse execution of EAW solely on ground that the requested person is a parent living with young children Thursday 21 December

In GN (Motif de refus fondé sur l’intérêt supérieur de l’enfant) (C-261/22), the Grand Chamber of the Court of Justice delivered its judgment concerning a request for a preliminary ruling from the Corte suprema di cassazione (Italy), by which clarification

was sought on whether Articles 1(2), 1(3), 3, and 4 of Framework Decision 2002/584/JHA on the European arrest warrant

(‘EAW’) must be interpreted as meaning that they do not permit the executing judicial authority to refuse or in any case defer the surrender of a mother who has minor children living with her.

Read on EU Law Live

Court of Justice rejects UPS’ appeal concerning claims for damages resulting from Commission’s decision declaring concentration as incompatible with the internal market Thursday 21 December

The Fifth Chamber of the Court of Justice delivered its judgment in United Parcel Service v Commission (C-297/22 P), a case regarding an appeal brought by United Parcel Service Inc. against the judgment of the General Court in Case T-834/17.

Read on EU Law Live

Council agrees on overhaul of economic governance rules for Member States Thursday 21 December

The EU’s economic governance framework is set for a significant reform, aiming to ensure sound and sustainable public finances, promoting growth and job creation while addressing diverse challenges across the EU. Read on EU Law Live

State Aid approval decisions in the Official Journal Friday 22 December

Information was published on 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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Data Act, published in OJ Friday 22 December

Official publication was made of Regulation (EU) 2023/2854 of the European Parliament and the Council on harmonised

rules on fair access to and use of data and amending Regulation (EU) 2017/2394 and Directive (EU) 2020/1828 (Data Act).

Read on EU Law Live

Commission Delegated Regulation (EU) 2023/2772 supplementing Directive 2013/34/EU as regards sustainability reporting standards, published in OJ Friday 22 December

Official publication was made of Commission Delegated Regulation (EU) 2023/2772, supplementing Directive 2013/34/

EU, which mandates sustainability reporting standards for large undertakings, small and medium-sized undertakings with securities on EU regulated markets, and parent undertakings of large groups.

Read on EU Law Live

EU Agency for Fundamental Rights urges robust safeguards for fundamental rights in allocation of EU funds Friday 22 December

In a report released on December 19, 2023, the European Union Agency for Fundamental Rights (FRA) emphasized the critical role of EU funds in driving equality and inclusion while calling for enhanced protection of fundamental rights.

Read on EU Law Live

Commission publishes December Infringements Package Friday 22 December

The Commission published its December Infringements Package, encompassing the key decisions by which legal action was undertaken against Member States for failing to comply with their obligations under EU law.

Read on EU Law Live

ESA publishes Annual State Aid Scoreboard Friday 22 December

According to the EFTA Surveillance Authority’s (‘ESA’) Annual State Aid Scoreboard, Norway and Iceland maintained high spending on State aid to tackle the economic effects of the COVID-19 pandemic, during 2021, while Liechtenstein continued to grant low amounts.

Read on EU Law Live

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EFTA Court re-elects Páll Hreinsson as President Friday 22 December

On 22 November 2023, the Judges of the EFTA Court re-elected Páll Hreinsson as President for a third term ending on 31 December 2026.

Read on EU Law Live

EDPB supports cookie pledge for user rights and privacy transparency Friday 22 December

In response to the European Commission’s initiative, the European Data Protection Board (EDPB) endorsed the cookie pledge, aiming to safeguard the fundamental rights and freedoms of users.

Read on EU Law Live

ECtHR: Prohibition of teachers with civil-servant status to strike does not violate the freedom of assembly Friday 22 December

The Grand Chamber of the European Court of Human Rights (ECtHR) rendered its judgment in the case of Humpert and

Others v. Germany (application nos. 59433/18 and 3 others), where it held by 16 votes to 1, that there had been no violation of Article 11 (freedom of assembly and association) of the European Convention on Human Rights (ECHR).

Read on EU Law Live

ECtHR issues Advisory Opinion on security guard employment and religious affiliation Friday 22 December

The European Court of Human Rights (ECtHR) released an Advisory Opinion in response to a query from the Belgian Conseil d’État regarding the denial of authorization for an individual considered a supporter of the “scientific” Salafist ideology to work as a security guard.

Read on EU Law Live

Vacancy for a position of référendaire at the General Court Friday 22 December

A vacancy announcement was made for a référendaire to join the Fifth Chamber at the General Court of the Court of Justice of the European Union (Luxembourg), who may be called upon to work with Judge Martín y Pérez de Nanclares and Judge Stancu, advising them on both substantive and procedural points of law arising in cases before the General Court, as well as preparing judicial documents.

Read on EU Law Live

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