ISSUE Nº9
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8-12 January 2024
IN-DEPTH: Because the Artificial Intelligence that generates technical advances cannot be an inventor – finds the UK Supreme Court Gianluca Fasano Justifying a Difference of Treatment on Grounds of Age to Protect the Right to Self-determination of Persons with Disabilities: Case C-518/22 J.M.P. v AP Assistenzprofis GmbH Delia Ferri and Eva S. Krolla The right to paid annual leave in EU law and the challenge from quarantine in relation to SARS-Cov-2 virus Amalie Frese ‘Scoring’ for Data Protection Rights: The Court of Justice’s First Judgment on Article 22 GDPR (Case C-634/21 and Joined Cases C-26/22 and C-64/22) Francesca Palmiotto Chemours’ ‘GenX’ confirmed as chemical ‘of very high concern’, merely a pyrrhic victory? Julian Schenten & Hélène Duguy Dismissal on Grounds of Inadmissibility: About the Associations’ (Lack of) Legal Standing to Challenge the Underlying State Aid Decisions in Asempre (T-513/20) and Uno (T-514/20) Nieves Bayón Fernández The Court of Justice clarifies the scope of application of the Services Directive in relation to operating leasing, long-term rental services, and financial leasing in AUTOTECHNICA FLEET SERVICES (C-278/22) Boris Belortaja ‘Keeping aid to yourself’ when you are part of a holding group- Ryanair and Malta Air v Commission T-216/21 Małgorzata Cyndecka THE LONG READ: 2023 in the Union Courts. Ten leading Judgements of the year Daniel Sarmiento HIGHLIGHTS OF THE WEEK
ISSN: 2695-9593 2 0 2 4 © A L L R I G H T S R E S E RV E D
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Because the Artificial Intelligence that generates technical advances cannot be an inventor – finds the UK Supreme Court Gianluca Fasano The Supreme Court of the United Kingdom has ruled that artificial intelligence cannot be considered as an
inventor of patents under the current patent laws ([2023] UKSC 49). The judgment, which has been annotated by the most important international media, may still result in an incorrect conclusion, if we assume that an AI to
be incapable to create and generate autonomously technical advances. To be clear, this is not the decision-making subject, and it is not the conclusion that can be drawn from the decision-making process.
From the point of view of EU law, the judgment can be of interest because the applications of patents, in which
artificial intelligence system is an inventor, have been filed in several jurisdictions, including the European Patent Office. And the Supreme Court confirms the EPO’s decision (Legal Board of Appeal J 0008/20, 21-12-2021).
To ensure that the presentation is as clear as possible, it seems appropriate to repeat the judgement’s factual points. The case was initiated by Dr. Thaler’s request to register a British patent under his AI ‘DABUS’. It concerns two applications made under the Patents Act 1977 for the grant of patents for products and processes which are said to be new and not obvious developments of anything known before. One unusual feature of the applications is
that any inventions they disclose and describe are said to have been generated by a machine acting autonomously
and powered by artificial intelligence. Another is that the appellant, Dr Stephen Thaler, maintains that he is entitled to make and pursue the applications on the basis that he is the owner of that machine.
The US-based developer claims the AI machine named DABUS autonomously created a food or drink container and a light beacon and that he is entitled to rights over its inventions. However, the Intellectual Property Office
(IPO) concluded in December 2019 that the expert was unable to officially register DABUS as the inventor in patent applications because it was not a person.
The court’s ruling is not alone in the landscape of case law. In fact, recently, other courts have already ruled on the invention of machines in the context of patents, including Thaler versus Patent Commissioner [2021] FCA 879 in Australia and Thaler versus Comptroller General of Patents Trade Marks And Designs [2021] EWCA Civ 1374 in the United Kingdom. And this judgment is not far from previous cases.
Regarding to the substance, Britain’s highest court concluded that ‘an inventor must be a person’ in order to apply
for patents under the current law. It continued: ‘[DABUS] is not a person, let alone a natural person and it did not devise any relevant invention. Accordingly, it is not and never was an inventor for the purposes of the 1977 Act’.
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It is important to highlight that the judgment is not concerned with the broader question whether technical advances generated by machines acting autonomously and powered by AI should be patentable. Nor is it concerned
with the question whether the meaning of the term ‘inventor’ ought to be expanded, ‘to include machines powered by AI which generate new and non-obvious products and processes which may be thought to offer benefits over products and processes which are already known’.
The topic of the decision concerns the requirement of paternity of the invention, which according to current legislation provides that the author of the patent ‘must be a person’ and not a machine. However, it is also important
to underline what the ruling does not say, which is that a work or invention generated by AI cannot be protected
by a patent. In other words, the creative, innovative and transformative capabilities of AI are not in doubt but rather its ability to be the holder of patent’s rights under current law.
Having reached this point we can draw together the threads of the discussion and propose some final observations, which evidently cannot be, nor do they claim to be, conclusive.
From a philosophical perspective, copyright has its roots in the concepts of human authorship and creative effort, concepts that can be referred to and applied only to human creations.
The current law is based on this perspective and patent failure results from the application of existing law to a new
situation. But, if an output generated by AI possesses all the requirements to be considered, on an objective level, as the fruit of a creative, original and inventive activity, while it lacks only the subjective requirement of human nature by its author, we should change our perspective.
The challenge, therefore, is that of overcoming the cultural gap that sees the concept of authorship linked only to
the category person, an individual who creates or originates something, such as a book, a painting, music, a theory or any other form of expression artistic or intellectual. And this challenge must not be pursued by case law.
A first step is to recognise a form of mechanical creativity, given that creativity is not just a human ability (know-
how). We must not make the mistake of applying the paradigms we use with reference to humans also for AI, ultimately humanising the machine. We should not regard it as a substitute for humans but as an agent with its own features. So, rather than discussing whether AI is –or not is– creative like humans, we should accept the idea of a mechanical creativity, different from that of humans but which need to patent protection.
We have separated the ability to understand and reasoning from the ‘technical’ ability to create new output, we have created authors without a person, without rights but who, in fact, simulate their exercise. For this reason, we must identify the way to manage the legal problems arising from these new models of authorship, and not only, as in the present case, under the active profile of a patent right, but above all under the passive profile of the related responsibilities to AI outputs.
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The increasing pace of technological development and profound leaps in AI capability will continue to challenge existing IP principles and concepts, which will must give trust to researchers, inventors, creators and enterprises
to invest their time, energy and money in doing something new. It underpins economic growth by incentivising investment, safeguarding assets and enabling the sharing of know-how in technologies like AI.
And the biggest challenge is that: if AI-devised inventions cannot be protected by patents, then there may be less investments in AI, which would hinder innovation. On the other hand, the patent protection for AI-devised
inventions may result in a small party with the best AI technology quickly acquiring a substantial number of patents. This would damage both innovation and competition.
At the legislative level of the EU, the AI Act proposal does not provide a solution to this challenge. Its technical-
legal responses do not comprehensively address the issues that affect generative AI, not the theme of mechanical
creativity, nor that of authorship and legal personality. But let there be no misunderstanding, this is not a regulatory
vacuum, given that the AI Act does not want to regulate the whole subject of AI, as a ‘summa’ of all the rules, but only wants to determine conditions and requirements that AI systems must meet to access the digital single market.
We must not forget that the legislative action also has a strong political connotation, wanting the EU to assert a digital sovereignty in the face of the power of technology companies overseas that, with their innovative products and services, are reshaping the world.
But if the goal is to encourage innovation in AI technology and promote its use while respecting fundamental rights, it is crucial to maintain the primary role of intellectual property in fostering human and mechanical creativity and innovation.
Gianluca Fasano, Technologist Director at Institute of Cognitive Sciences and Technologies – CNR.
SUGGESTED CITATION: Fasano, G; “Because the Artificial Intelligence that generates technical advances cannot be an inventor – finds the UK Supreme Court”, EU Law Live, 10/01/2023, https://eulawlive.com/op-ed-because-the-artificial-intelligence-that-generates-technical-advances-cannotbe-an-inventor-finds-the-uk-supreme-court-by-gianluca-fasano/
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Justifying a Difference of Treatment on Grounds of Age to Protect the Right to Self-determination of Persons with Disabilities: Case C-518/22 J.M.P. v AP Assistenzprofis GmbH Delia Ferri and Eva S. Krolla Introduction On 7 December 2023, the Second Chamber of the Court of Justice (‘the Court’) released its decision in the case
J.M.P. v AP Assistenzprofis GmbH (C-518/22). This judgement is noteworthy as the Court conceded that a direct discrimination on the grounds of age may be justifiable to safeguard the right to autonomy and self-determination
of persons with disabilities. By interpreting Article 2(5) of Directive 2000/78 –which permits limitations to the principle of non-discrimination inter alia to protect ‘the rights and freedoms of others’– in light of Article 26 of the Charter of Fundamental Rights of the EU (CFR) and Article 19 of the UN Convention on the Rights of Persons with Disabilities (CRPD), the Court made another important step forward in the promotion of disability rights in the European Union (EU). Facts of the Case This decision arose from a request for preliminary ruling put forward by the German Federal Labour Court in the
proceedings between Ms J.M.P., a personal assistant born in 1968, and AP Assistenzprofis, a company providing services aimed at supporting persons with disabilities in living their everyday life independently.
In July 2018, AP Assistenzprofis advertised a job for a personal assistant to A., a 28-year-old disabled female
student. The job offer explicitly indicated that A. was looking for a female personal assistant preferably between 18 and 30 years old. Ms J.M.P. applied for that job but her application was rejected. Further to such rejection, Ms
J.M.P. decided to bring an action against AP Assistenzprofis before the Labour Court of Cologne claiming she
had been discriminated against on grounds of age. The Labour Court upheld the action brought by Ms J.M.P. and did not accept the arguments of AP Assistenzprofis according to which the requirement for a specific age would
have best ensured that A.’s needs in relation to her social life as a university student were met. The Labour Court’s
decision was however appealed by AP Assistenzprofis and overturned by the Higher Labour Court. Ms J.M.P. sought the revision of the Higher Labour Court’s judgment before the Federal Labour Court, which decided to stay the proceedings and asked the Court to interpret Articles 2(5), 4(1), 6(1) and 7 of Directive 2000/78 in light of the CFR and the CRPD.
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Decision of the Court of Justice The Court, first, acknowledged that the issues arisen in the national proceedings fell within the scope of Directive
2000/78 as they concerned access to employment (para. 48). It also accepted that Ms J.M.P. had in fact been directly discriminated against on grounds of age (para. 49). Then, in line with the Opinion of Advocate General
(AG) de la Tour, the Court focused on whether such discrimination could be justified on foot of Article 2(5) of
the Directive, which permits differential measures that are ‘necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others’.
The Court noted that German law –namely Paragraph 8(1) of the Sozialgesetzbuch (SGB) IX read in conjunction
with Paragraph 33 of the SGB I– requires for the legitimate wishes of persons entitled to receive personal assistance services to be respected when deciding on those services. The Court recognised that such national legislation is
explicitly aimed at ‘protecting the self-determination of persons with disabilities, by guaranteeing those persons’ right to express their wishes and to make choices freely as regards decisions on the personal assistance services and their provision, since those services concern all areas of life and extend considerably into the private and intimate areas of the life of the person in receipt of them’ (para. 58).
The Court contended that the right to self-determination in the context of personal assistance is embedded in Article 26 CFR –which provides for the ‘right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community’–
and enshrined in Article 19 CRPD. Interpreting Article 2(5) of Directive 2000/78 in light of these provisions of the CFR and CRPD, the Court concluded that the Directive allows for the recruitment of personal assistants to be subject to age requirements in order to respect ‘the individual wishes’ of persons with disabilities (para. 68). Constitutionalising the CRPD The request of preliminary ruling from the German court sought explicitly for Directive 2000/78 to be interpreted
in light of both the CFR (a constitutional source) and the CRPD (formally a sub-constitutional source). In this respect, J.M.P. v AP Assistenzprofis GmbH has undeniably offered the Court the latest (and probably not the last) opportunity to tacitly confirm the ‘constitutionalisation’ of the CRPD.
Following a long line of case law rolled out by HK Danmark, the Court briefly recalled the need to interpret
Directive 2000/78 in a manner consistent with the CRPD. Interestingly, however, the Court did not engage further with the status of the Convention (nor with its content). Rather, in line with the approach already adopted
in cases such as Milkova (C-406/15), Glatzel (C‑356/12) and, most recently, as discussed in a dedicated post, in TC, UB v Komisia za zashtita ot diskriminatsia (C-824/19), the Luxembourg judges referred to the CRPD in
combination with the CFR, de facto placing these sources at the same hierarchical (i.e constitutional) level. In that, the Court further consolidated the CRPD as a constitutional source of disability rights in the EU.
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Enhancing the Right to Self-Determination of Persons with Disabilities and Firmly Embracing the ‘Human Rights Model’ of Disability
In J.M.P. v AP Assistenzprofis GmbH, the Court leveraged on the synergy between the CFR and the CRPD in order to promote the right to self-determination and social participation of persons with disabilities.
The Court did not engage extensively with the content of the right to self-determination per se, nor with Article
19 CRPD. The Luxembourg judges rather hinted to the far broader analysis conducted by the AG, who, alongside Article 19, mentioned the purpose of the CRPD of guaranteeing the individual autonomy and the inclusion in
the community of persons with disabilities, as well as Article 5(4) CRPD which requires State parties to adopt
positive measures which are necessary to accelerate or achieve de facto equality (AG Opinion point 65). In that regard, the Court recognised that ‘persons with disabilities must be able to shape the service that will be provided to them and give instructions directly to the person providing assistance to them, which includes determining the
selection criteria for their personal assistant and being actively involved in the process of hiring that assistant’ (AG Opinion point 63 recalled in para 59 of the Court’s decision –emphasis added). The Court also accepted that the preference, in the job offer in question, for an age range from 18 to 30 years ‘is rooted in A.’s personal need to
receive personal assistance accompanying her in all areas of her daily social life as a 28 year old’, including private and intimate areas of her life (para. 64).
By acknowledging A.’s right to freely choose with whom sharing her daily life, the Court decisively rejected a charity view of disability services. In doing so, the Court embraced the view that personal assistance is essential to promote the inherent dignity of persons with disabilities and is a ‘stepping-stone’ to ensure their full inclusion
in society. This conceptual approach clearly aligns with the interpretation given to Article 19 CRPD by the UN
Committee on the Rights of Persons with Disabilities in its General Comment N. 5, which is mentioned by the AG (para 65 ft. 16). Conclusion On the whole, J.M.P. v AP Assistenzprofis GmbH represents an important milestone in the protection of disability
rights in the EU because it epitomises the unequivocal recognition that persons with disabilities are ‘subject’ (and not object) of rights. In that connection, this judgement also evidences the tacit but firm embracement by the Court of the ‘human rights model’ of disability that underpins the CRPD.
Delia Ferri is Professor of Law at Maynooth University School of Law and Criminology, Ireland
– delia.ferri@mu.ie.
Eva Sophie Krolla is Research Assistant at Maynooth University School of Law and Criminology, Ireland – Eva.Krolla@mu.ie.
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SUGGESTED CITATION: Ferri, D. amd Sophie Krolla, E.; “Justifying a Difference of Treatment on Grounds of Age to Protect the Right to Selfdetermination of Persons with Disabilities: Case C-518/22 J.M.P. v AP Assistenzprofis GmbH”, EU Law Live, 11/01/2023, https://eulawlive.com/op-edjustifying-a-difference-of-treatment-on-grounds-of-age-to-protect-the-right-to-self-determination-of-persons-with-disabilities-case-c-518-22-j-m-p-vap-assistenzprofis-gmbh/
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The right to paid annual leave in EU law and the challenge from quarantine in relation to SARS-Cov-2 virus Amalie Frese On the 14th of December 2023 the Court of Justice of the European Union (‘the Court’) delivered a preliminary
ruling in the case of C-206/22, TF v Sparkasse Südpfalz. While 2023 was a year where covid-19 virus has
ceased to make too many headlines, it appears that during winter times the virus, in some variant, has become an inevitable circumstance, which societies have to tackle. In light is this, the case of TF v Sparkasse Südpfalz concerned a central question for workers’ social rights, namely, whether where a period of annual leave coincides with quarantine in relation to covid-19 infection (or risk of such) the leave can be carried over.
The case originated in a preliminary reference from the Labour Court, Ludwigshafen am Rhein in Germany and
concerned a situation in which a person, TF, was granted paid annual leave from 3rd to 11th of December 2020. On the 2nd of December 2020, the day before the start of the leave period, the district authority ordered TF to quarantine from the same day, the 2nd of December until the 11th of December due to the fact that TF had been
in contact with a person infected with SARS-Cov-2 virus. TF requested for his employer to carry-over the paid
annual leave for the period as it was coinciding with the quarantine period. The employer, Sparkasse Südpfalz,
refused such carry-over by reference to national legislation, the German Federal Law on Leave of 8 January 1963, after which TF brought an action before the referring Court.
The referring Court is asking whether Article 7 (1) of Directive 2003/88 and Article 31(2) of the Charter should be interpreted as precluding national legislation, which does not allow for carrying over paid annual leave where the worker is not sick, but an unforeseeable event like a quarantine ordered by public authorities due to risk of
infection, coincides with the period of leave. In other words, does the relevant EU legislation enable the worker to have their paid annual leave period carried over in such a situation?
The legal basis interpreted here is Article 7(1) of Directive 2003/88 (the so-called Working Time Directive) and Article 31(2) of the Charter. As the Court notes in the substance of the judgment, the right to paid annual leave
is an important principle in EU social law as is laid down in Article 31(2) of the Charter and which Directive
2003/88 implements by fixing the duration of the period. Importantly, the Court reminds us, in that context, the right to paid annual leave cannot be interpreted restrictively (by reference to Sobczyszyn, C-178/15).
The reasoning in the judgment of the Court centers around the comparison between the purposes of paid annual
leave, sick leave and a quarantine. Specifically, the Court points to a dual purpose of paid annual leave as laid
down in Directive 2003/88, which is to rest from carrying out work and to enjoy a period of relaxation and leisure.
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Differently from the purpose of annual paid leave, the purpose of sick leave is to enable the worker to recover from
an illness (by reference to Sobczyszyn, C-178/15). In its case law, the Court has therefore found that where sick leave coincides with paid annual leave, the worker has the right to reschedule her paid annual leave for the reasons
that incapacity to work in relation to sick leave is an unforeseeable event and beyond the worker’s control and the
worker is subject to physical or psychological constraints caused by illness (C-12/17, Dicu). The Court reasons that quarantine is not analogous to sick leave in the sense that a person in quarantine is not in a situation of incapacity
to work because of illness, and recalls that it has previously, in its case law (Sobczyszyn, C-178/15 and C-12/17, Dicu), held that when sick leave and paid annual leave coincides, the worker may at own request re-schedule the
annual leave. For these reasons, the situation regarding quarantine in the present preliminary reference means that
EU law does not preclude legislation whereby the worker cannot carry over paid annual leave when it coincides with quarantine.
Two main critiques can be raised concerning this ruling and its implications for workers social rights in covidcrisis times and EU law.
Firstly, while quarantine is not found to be comparable to sick leave and involve the workers incapacity to work and therefore does not constitute an obstacle to the fulfilling the purpose of paid annual leave namely to rest, there
can be other significant ways in which a quarantine period does indeed constitute an obstacle to the purpose of paid annual leave. This would be the case by quarantine hindering that the employee travels, let alone leaves the house. Here it appears that the purpose of paid annual leave in the ruling is interpreted with a strong emphasis on
‘rest’ rather than a period of relaxation and in particular ‘leisure’ as the latter part of the purpose states. Indeed, the Court emphasizes (para. 45) that Directive 2003/88 is not intended to ensure that any event capable of preventing
workers from enjoying fully and in a manner they wish a period of rest or relaxation, is a reason for granting
workers additional leave. It appears arbitrary that a quarantine period, as ordered by a public authority and which hinders the employee in leaving the house, in seeing friends and family and in fulfilling travel arrangements, does not count among such events considering the implications.
Secondly, but related to the first point, the ruling introduces a differentiation in workers’ rights to have leave
carried over. Ultimately, the implication of the ruling is that we can perceive three categories of workers with
three sets of entitlements: Imagine a worker is ordered to quarantine and this period of quarantine coincides with
a period of paid annual leave like the situation of TF. If the worker like TF was not infected by SARS-Cov-2 she would not be entitled to carry over the leave. However, if the worker incidentally herself actually got SARS-
Cov-2, even if she was asymptomatic and thus in principle could relax and enjoy leisure time, this would generate circumstances in which the worker could claim sick leave and the carry-over of the paid annual leave according to
the case law of Court. Yet this would not be possible for the worker who was ordered to quarantine, but who was not infected by SARS-Cov-2 as we now know from the judgment. Consequently, the judgment ultimately creates a peculiar arbitrariness and differentiation in workers’ entitlements to carry over paid annual leave.
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In light of these critiques, the ruling most of all appears as a protection of the employer by setting a limit to the
unforeseeable events that the employer should be held liable to provide compensation for towards the employee. A
central issue in this regard is the ruling’s comparison with sick-leave, which it builds its entire reasoning on, rather
than considering quarantine as a distinct category, which poses its own problems for labour market and social rights. A problem here is that the purpose of a quarantine period is neither to relax nor to enjoy leisure time, but
to avoid a potential spread of a virus. As such, a quarantine ordered by public authorities is a duty for an individual
and worker and which serves the purpose of ensuring public safety and health. It therefore seems inconsistent
with workers’ rights in EU law – as interpreted by the Court in the case law cited– that where it incidentally coincides with a paid annual leave, the worker must carry the entire burden. Admittedly, it is a difficult to solve the
question of whether EU law should preclude legislation that does not allow to carry over paid annual leave, and implicitly who should carry the burden of this, when considered as a binary choice between the worker and the
employer. To go beyond this binary construction, the Court would have had to, for example, consider the role of
the State and possible contributions from the state in ensuring that workers’ rights in EU social law were upheld. As the Court emphasised in the ruling, the right to paid annual leave cannot be interpreted restrictively, yet, a restrictive interpretation unfortunately seems to be the implication of the ruling.
Amalie Frese is associate professor in social- and equality law at the Faculty of Law, iCourts, University of Copenhagen, Denmark.
SUGGESTED CITATION: Frese, A; “The right to paid annual leave in EU law and the challenge from quarantine in relation to SARS-Cov-2 virus”, EU Law Live, 12/01/2024, https://eulawlive.com/op-ed-the-right-to-paid-annual-leave-in-eu-law-and-the-challenge-from-quarantine-in-relation-to-sarscov-2-virus-by-amalie-frese/
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‘Scoring’ for Data Protection Rights: The Court of Justice’s First Judgment on Article 22 GDPR (Case C-634/21 and Joined Cases C-26/22 and C-64/22) Francesca Palmiotto On the 7th of December 2023, the Court of Justice delivered two landmark judgments for the protection of the
right to data protection against automated credit scoring (Schufa Holding C-634/21 and Joined Cases C-26/22
and C-64/22). Both cases concerned the compatibility of data processing by SCHUFA, a German credit agency, with the GDPR and the rights to privacy and data protection. In the first case on Article 22 GDPR, the Court of Justice held that credit scoring is an automated decision as it has a determining role in granting credit. In this Op-
Ed, I contend that this interpretation of Article 22 GDPR ensures adequate protection for individuals affected by credit scoring and effective allocation of responsibilities in multi-stakeholder decision-making. However, for
the applicability of Article 22 GDPR in other areas of automated decision-making, it is crucial to establish when automated profiling has a determining role before and not after a decision is taken. Background of the cases: The SCHUFA Black Box If you want to rent a house or get a loan in Germany, you will have to present a SCHUFA credit scoring certificate. SCHUFA Holding is a private German company that calculates the creditworthiness of individuals using personal data from bank accounts, online purchase history and public information, such as published decisions in insolvency proceedings. Based on individual profiling, a certificate is issued with a positive or negative score (see an example here). Third parties, such as credit institutions, use the SCHUFA certificate to decide whether to grant credit. How the actual score is calculated is, however, not disclosed to individuals. SCHUFA credit scoring
is a ‘Black Box’ largely used for private decision-making without allowing individuals to understand how their creditworthiness has been assessed.
The two cases at stake arise from SCHUFA’s refusal to provide information on their methods for credit scoring
(C-634/21) and delete personal data stored in their databases ( Joined Cases C-26/22 and C-64/22). In both cases, the applicants complained before the German Data Protection Authority and then appealed the decision in front
of the Administrative Court of Wiesbaden. In 2021, the Court of Wiesbaden decided to stay the proceedings and refer to the Court of Justice for a preliminary ruling. The two judgments of the Court of Justice address two key issues arising from SCHUFA credit scoring: 1) whether the decision to deny credit based on SCHUFA
credit scoring is an automated decision under Article 22 GDPR and 2) whether SCHUFA’s database, used for calculating credit scores, complies with the right to data protection and privacy.
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Is Credit Scoring an Automated Decision? (C-634/22) Article 22 of the GDPR aims to protect human dignity against opaque and unaccountable machine decisions. Under Article 22 of the GDPR, data subjects have the right not to be subject to solely automated decisions. When automated decisions are exceptionally allowed, according to the conditions set in the second paragraph, the data
controller shall implement suitable safeguards for the data subject, such as the right to obtain human intervention, express their point of view, and contest the decision. Additionally, data subjects enjoy transparency rights, such
as the right to receive ‘meaningful information about the logic involved’ (Articles 13, 14, 15 of the GDPR). For the application of Article 22 and related guarantees, three cumulative conditions must occur: 1) there must be a
decision; 2) based solely on automated processing or profiling; 3) which produces legal or significant effects on the data subject. The key legal question in C-634/22 is whether credit scoring fulfils the three requirements to qualify as an ‘automated decision’.
In C-634/21, the Court of Justice dealt with two key issues for Article 22 of the GDPR. First, the decisionmaking process can be ‘multi-stage’ with different actors involved (Binns and Veale 2021). In this case, Schufa calculated the score, and subsequently, the bank decided to deny credit based on such profiling. In cases where multi-stakeholders are involved, there is a risk of circumventing Article 22 of the GDPR and, consequently, a
lacuna in legal protection for individuals. Second, credit scoring had de facto a determining role in the bank’s
decision. In fact, as showed by the referring Court and stated by SCHUFA in the oral hearing, a poor score will lead to refusing a loan in almost every case (Häuselmann 2023).
According to the referring Court and the Advocate General (AG), SCHUFA’s credit scoring qualifies under Article 22 of the GDPR, as it ‘tends to predetermine the latter’s decision as to whether to grant or refuse credit to
the person concerned, so that it must be considered that that position is of a purely formal nature in the context of the process’ (AG Opinion, point 47).
The Court of Justice followed the AG Opinion and held that Article 22 GDPR: Must be interpreted as meaning that the automated establishment, by a credit information agency, of a probability value based on personal data relating to a person and concerning his or her ability to meet payment commitments in the future constitutes ‘automated individual decision-making’ within the meaning of that provision, where a
third party, to which that probability value is transmitted, draws strongly on that probability value to establish, implement or terminate a contractual relationship with that person.
According to the Court, since the automated crediting scoring – calculated by a credit information agency and
communicated to a bank – plays a determining role in credit granting, establishing that value qualifies as a decision under Article 22 GDPR (C-634/21, para 50). Therefore, it is prohibited unless one of the exceptions set out in
Article 22(2) of the GDPR is applicable and the specific requirements provided for in Article 22(3) and (4) of the GDPR are complied with (C-634/21, para 64).
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Is the SCHUFA Database Lawful? ( Joined Cases C-26/22 and C-64/22) In order to calculate the credit scoring, SCHUFA also stores sensitive public information on data subjects, including information on insolvency proceedings. Under German law, information relating to the granting of a discharge from remaining debts is kept for six months, while a code of conduct for credit information agencies stipulates a retention period of three years for their own databases. Moreover, personal data are stored in the event that their contractual partners ask them to calculate a score; therefore, they are stored without a specific
purpose. In Joined Cases C-26/22 and C-64/22, the administrative Court asked the Court of Justice to clarify whether the SCHUFA database complies with data protection principles, namely lawfulness, purpose limitation
and data minimisation, and the right to be forgotten. The Court of Justice clarified that retaining personal data concerning insolvency after their deletion from the public registry is unlawful. Legitimate interests of the credit
agency cannot be invoked beyond the period for which the data are kept in the public insolvency register, as the
interest of data subjects takes precedence. Therefore, the controller will have to delete such data as soon as possible. At the same time, the Court raises doubts as to whether the retention of data, even during the six-month period, is compatible with the GDPR. The referring Court must assess whether the data storage in SCHUFA’s database
is limited to what is strictly necessary to achieve the legitimate interest pursued ( Joined Cases C-26/22 and C-64/22, para 91). Finally, regarding the right to be forgotten, the Court clarifies that the right to erasure of
personal data in Article 17(1)(c) GDPR can be limited only when there are ‘overriding legitimate grounds which
take precedence over the interests and rights and freedoms of that person within the meaning of Article 21(1) of the GDPR, which it is for the controller to demonstrate’ ( Joined Cases C-26/22 and C-64/22, para 11).
The implications of this judgment are far-reaching. In the age of Artificial Intelligence and Large Language
Models, the judgment represents an important reminder that ‘public’ information is not free to take. Even when publicly available, storing and processing personal data to create private databases must comply with data protection principles, most notably, lawfulness and purpose limitation. Revisiting Article 22 GDPR under a new light In C-634/21, the Court provided a novel interpretation of Article 22 GDPR based on the ‘determining role’ of
automated profiling, as the third party ‘draws strongly’ on it for granting or rejecting the credit. By rejecting a formalistic definition of ‘automated decision’, the Court of Justice ensured protection for individuals and effective allocation of responsibilities in multi-stakeholder decision-making.
However, while the SCHUFA case was clear-cut, based on factual evidence proving the lack of human discretion on the bank’s side, it will be more challenging to apply the concept of ‘determining role’ in other areas of decisionmaking. Further guidelines will be needed to give concrete meaning to this novel interpretation of Article 22 GDPR (see also Genicot, 2023). I believe this judgment should not be interpreted as requiring an assessment of
the ‘determining role’ after a decision is taken. An ex-post assessment of Article 22 of the GDPR raises issues
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in terms of legal certainty for a general prohibition to apply. Moreover, an assessment ex-post also affects the
applicability of the obligations to provide information to data subjects on automated decision-making, which, according to Articles 13(2)(f ) and 14(2)(g) of the GDPR, must be given when the personal data are collected, i.e. before the final decision is taken (as I have previously argued here).
A possible approach would be to follow a dual analysis of the ‘determining role’ encompassing subjective and objective elements. Subjectively, as proposed by the AG, it would be necessary to analyse the margin of discretion
left based on the internal rules and practices of the financial institution (AG Opinion, point 44). As researchers
showed, national DPAs have developed a sophisticated set of criteria looking at the entire organisation structure, reporting lines and chains of approval, adequate training of the staff, as well as internal policies and procedures
(Barros Vale & Zanfir Fortuna 2022), which can be helpful to assess the level of human involvement. Objectively, it would be necessary to analyse the impact of automated scoring on the data subject and its role in the broader decision-making process (Palmiotto 2023). In the SCHUFA case, a negative scoring score alone may already
significantly impact data subjects, restricting their freedoms or stigmatising them in society. For instance, receiving a negative score undermines the possibility of even visiting apartments for rent, as almost every lessor asks for
the SCHUFA certificate. Holding SCHUFA responsible for establishing the score – and not for its further use –ensures the effective exercise of data subject rights, most notably the right to receive information and an ‘explanation’ about the system.
In conclusion, while this judgment opens the door to new questions which will need further clarification, the
judgment sends a clear message to companies providing or using automated profiling: Article 22 of the GDPR
demands a shared allocation of responsibility between the provider of the credit score and the decision-maker. On the one hand, the ‘profiler’, such as SCHUFA, must provide transparency and allow data subjects’ rights to be exercised. On the other hand, the ‘decision-maker’, such as banks, cannot simply endorse the algorithmic recommendation, letting the score decide.
Dr Francesca Palmiotto is a postdoctoral researcher at Hertie School’s Centre for Fundamental Rights working on the project “AFAR: Algorithmic Fairness for Asylum Seekers and Refugees” funded by the Volkswagen Foundation. Francesca is the co-founder and editor of the blog DigiCon (The Digital Constitutionalist). Her research interests relate more broadly to Law and Technology, with a specific focus on the procedural fairness of automated decisions and evidence. She obtained a PhD from the European University Institute with a thesis on Artificial Intelligence in Criminal Justice.
SUGGESTED CITATION: Palmiotto, F.; “‘Scoring’ for Data Protection Rights: The Court of Justice’s First Judgment on Article 22 GDPR (Case C-634/21 and Joined Cases C-26/22 and C-64/22)”, EU Law Live, 09/01/2024, https://eulawlive.com/op-ed-scoring-for-data-protection-rights-thecourt-of-justices-first-judgment-on-article-22-gdpr-case-c-634-21-and-joined-cases-c-26-22-and-c-64-22-by/
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Chemours’ ‘GenX’ confirmed as chemical ‘of very high concern’, merely a pyrrhic victory? Julian Schenten & Hélène Duguy The chemical class of so-called PFAS (Per- and polyfluoroalkyl substances) has become sadly famous. They
are used in numerous industrial processes but also as non-stick coatings in consumer products such as outdoor clothing and cookware. The downside is that, once released, PFAS are highly persistent which means they can hardly be removed. There is a growing body of evidence concerning contamination levels in ground and drinking
water, blood and breast milk worldwide, and specifically in Europe. Some industries have yet been active in using the court room to bury such evidence. A good example is the case brought by Chemours to the Court of justice of
the EU against the identification of GenX as a substance of very high concern (Chemours v ECHA C‑293/22 P). In 2009 the company DuPont introduced the ‘GenX’ chemical as a substitute for PFAS Perfluorooctanoic acid (or
PFOA), which had been used in the production of Teflon among other products and was banned as being harmful to reproductive health. Yet – much like PFOA – GenX has harmful properties. In March 2019, the Netherlands
proposed to list GenX as a ‘substance of very high concern’ (SVHC) under the REACH Regulation 1907/2006. Member States and the European Chemicals Agency (ECHA) can identify chemicals as SVHCs subject to criteria set out by Article 57 REACH. These criteria relate, in Article 57(a) to (c), to adverse effects on humans and, in Article 57(d) and (e), to effects with an environmental focus. Article 57(f ) goes beyond the specific effects
strictly defined in Article 57 (a) to (e), allowing authorities to identify as SVHCs substances ‘for which there is scientific evidence of probable serious effects to human health or the environment which give rise to an equivalent level of
concern to those of other substances listed in points (a) to (e)’. It may apply to substances ‘such as those having endocrine disrupting properties or those having persistent, bioaccumulative and toxic properties or very persistent for example’. This
catch-all provision provides a safety net for chemicals which might not fit in the specific categories listed under Article 57 but still present a serious concern to health or the environment. By doing so it fulfils the precautionary ambition of REACH and its objective of health and environmental protection.
The SVHC status of a substance bears important regulatory consequences and can lead to significant economic
impacts for chemical companies: first, it obliges them to communicate about this identification to actors in their supply chain. But this status may also trigger several risk management mechanisms. Notably, SVHCs must ‘eventually’ be banned, unless companies ask the European Commission for a time-limited authorization.
In July 2019, ECHA adopted a decision identifying GenX as an SVHC based on Article 57(f ). Chemours – a
spin-off of DuPont – challenged the decision but was unsuccessful before the General Court (Chemours v ECHA, T‑636/19). In its appeal, the company flooded the Court of Justice with a plethora of claims, none of which
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proved to be admissible or, if so, well-founded. Contrary to the company’s expectations, what was clearly designed to stir up uncertainty with regard to the legal categorisation of this chemical instead provided an opportunity for
the Court to confirm and further refine its case law on the rather inclusive scope of Article 57(f ) and the broad power granted to ECHA and Member States when using this provision. About the ruling On 9 November 2023 the Court of Justice concluded that ECHA was right in identifying GenX as an SVHC. Beyond this first conclusion, the Court sent a strong signal to companies that they must stop replacing harmful chemicals – in this case PFOA – with similarly hazardous ones like GenX. The Court moreover reiterated
key lessons for the interpretation of Article 57(f ) of REACH and the broad discretion authorities enjoy in its
implementation. The Court also supported a precautionary interpretation of REACH when it comes to the regulation of the most harmful chemicals. Procedural room to manoeuvre Procedurally, the Court of Justice confirmed the broad discretion conferred on ECHA and Member States’ competent authorities when applying Article 57(f ) and, in doing so, assessing highly complex scientific and technical facts. This discretion is not limited to the nature and scope of the measures to be taken but applies
also to the finding of the basic facts (para. 134 et seq, citing PlasticsEurope v ECHA C‑119/21 P). This is not
the first time EU judges have recognised the authorities’ broad power in such matters. In the challenges brought
by PlasticsEurope against ECHA concerning the identification of Bisphenol A as an SVHC (in particular in C‑876/19 P and C‑119/21 P), the Court of Justice established that authorities and ECHA may take into account
studies of lower reliability such as ‘non-standard’ or ‘exploratory’ studies not conducted using validated methods
(C‑119/21 P, para. 66 et seq). They may exclude studies that they do not deem relevant, or, conversely, consider a
study ‘instructive’ even though other scientific authorities, such as the European Food Safety Authority (EFSA), judged it unreliable (PlasticsEurope v ECHA T-636/17, paras. 65, 83). Light burden to prove the ‘equivalent level of concern’ The ‘equivalent level of concern’ provision under Article 57(f ) must be understood in a broad and protective
manner, in line with its wording and the objective of REACH. Limiting the understanding of this article, as Chemours argued, would deprive it of any useful effect and prevent authorities from using it at all. Judges are
hereby anchoring in their jurisprudence an interpretation they have defended on multiple occasions (Hitachi Chemical Europe and Polynt v ECHAC‑324/15 P para. 26, Chemours v ECHA, T‑636/19, para. 94).
In the context of Article 57(f ), the identification of an SVHC depends on the proof of its probable serious effects, which can be brought based on a wide array of information and is not subject to a strict test. For example the Court found that criteria pursuant to the Classification, Labelling and Packaging Regulation can be relevant
but there is no obligation to refer to them (para. 58, confirming Hitachi Chemical Europe and Polynt v ECHA C‑324/15 P).
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The identification of GenX as an SVHC is based on a long list of properties, including persistence, mobility, potential for long-range transport, probable adverse effects on human health and probable effects on the environment (para. 36). According to the Court, beyond environmental concerns, ECHA was entitled to establish probable effects on humans, such as effects on the liver and kidney, by combining several effects – given the
mention under Article 57(f ) of ‘serious effects’ in the plural (para. 77). Also, when it comes to effects on human
health, ECHA is not bound to base its assessment on the Article 57 mandates related to effects on humans (para. 59). Rather, as the Court puts it, Chemours ‘confuses the equivalence of the level of concern, required for the application of Article 57(f ) of the REACH Regulation, with the equivalence of the effects, a condition which goes beyond the scope of that provision’.
Persistent and mobile chemicals ‘just as dangerous’ as PBTs and vPvBs The Court of Justice backed the General Court’s observation that the ‘such as…’ wording makes it possible to
take into account persistence, bioaccumulation and toxicity of a substance – be it in combination or only linked to
one of these properties (para. 119). Hence, in contrast to Chemours’ claims, bioaccumulation is not a prerequisite for identifying probable serious effects in relation to a persistent substance. The Court, mindful of REACH’s
objective of ensuring a high level of protection of human health, acknowledges that a substance like GenX that is persistent and mobile, but not bioaccumulative, can be ‘just as dangerous’ as those referred to in Article 57(a) to (e) REACH (para. 118).
Another important consideration from the Court is the recognition of the concerns posed by very persistent and very mobile chemicals to human health (para. 60). A pyrrhic victory? With this decision, the Court of Justice stands by its long standing jurisprudence supporting the long and arduous scientific work done by authorities with regard to SVHCs. The discretion given to regulators is arguably necessary to allow them to adapt to new scientific evidence and take action on all problematic chemicals – which Article 57(f ) enables them to do – and not just those that fit very well in preconceived legal categories.
A burning question is now whether this is a true victory for the regulators and stakeholders interested in
stricter regulation of the most dangerous chemicals, knowing that companies will continue to challenge those
identifications. Recently, companies contested the identification of melamine (see T‑167/23, Fritz Egger v ECHA).
This not only carries the risk of slowing down the regulation of hazardous chemicals, but also of discouraging the authorities who initiate SVHC identifications. Whether or not this is long term win for the public, this
decision should in any way support judges in responding to similar requests, allowing them to distinguish between founded, legitimate claims and mere attempts to avoid regulation.
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Julian Schenten & Hélène Duguy are lawyers at an international environmental organisation.
SUGGESTED CITATION: Schenten, J. and Duguy, H.; “Chemours’ ‘GenX’ confirmed as chemical ‘of very high concern’, merely a pyrrhic victory?, EU Law Live, 08/01/2024, https://eulawlive.com/op-ed-chemours-genx-confirmed-as-chemical-of-very-high-concern-merely-a-pyrrhic-victory-by-julianschenten-helene-duguy/
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Dismissal on Grounds of Inadmissibility: About the Associations’ (Lack of ) Legal Standing to Challenge the Underlying State Aid Decisions in Asempre (T-513/20) and Uno (T-514/20) Nieves Bayón Fernández On 29 November 2023, the General Court (‘GC’) delivered its judgments in Asempre (Case T-513/20) and Uno
(Case T-514/20), dismissing on admissibility grounds the actions filed respectively by Asempre and Uno (the
‘Associations’) against Commission Decision SA.50872, which had classified as compatible aid the presumably illegal public service compensation granted by the Kingdom of Spain to Correos.
In analysing the admissibility of the Associations’ appeals, the GC’s judgments serve as a reminder of the high burden that applicants in general (and associations in particular) need to meet when proving that an EU act is of direct and individual concern to them under Article 263(4) TFEU.
The Individual or General Application of State Aid Measures: The Importance of the Underlying National Measure
Natural or legal persons to whom an EU act is not addressed may file an action for annulment under Article 263(4) TFEU (i) against an act which is of direct and individual concern to them; or (ii) against a regulatory act which is of direct concern to them and does not entail implementing measures (Asempre, para 35, Uno, para. 27).
The GC ruled that the underlying Commission Decision in Asempre and Uno was not of general application
and could thus not be classified as a regulatory act (Asempre, para. 36, Uno, para 28). Although the GC did not provide further guidance as to why the decision was not of general application, it appeared to follow a line of
case law according to which when the national measure underlying a State aid decision concerns individual aid,
the decision is not generally regarded as a regulatory act (see e.g. Greenpeace Energy, Case T-382/15, para. 150, confirmed on appeal). This is different from State aid decisions in which the underlying national measure is an
aid scheme, which have in several cases been classified as acts of general application, which may still sometimes
entail implementing measures (see e.g. Telefónica, Case C‑274/12 P, paras. 27-39). In the words of AG Wathelet,
it is ‘by reference to the national measure to which the Commission decision relates that the general application of that decision may and must be determined’ (AG Opinion in Scuola, Joined Cases C‑622/16 P to C‑624/16 P, point 48). Direct and Individual Concern: Associations’ Legal Standing to Challenge State Aid Decisions
Following the established case law of the EU Courts, the GC observed that associations have standing to bring
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nature; (ii) the association represents the interests of undertakings which themselves have locus standi; and (iii) the association is differentiated by reason of the adverse impact on its own interests as an association, in particular
because their position as negotiators has been affected by the measure for which annulment is sought (Asempre,
para 23, Uno, para 18 (and case law cited); see also Federación de Cooperativas Agrarias de la Comunidad Valenciana, Case T-95/06, para. 86, or Roquefort, Case T-381/02, para. 54). In Asempre and Uno, the GC analysed the
Associations’ standing pursuant to (ii) and (iii).
In analysing whether the Associations’ members have themselves locus standing (ii), and following the case law of the Court of Justice (‘CJ’) particularly in Lufthansa, Case C-453/19 P, the GC:
• Distinguished Article 108(2) TFEU decisions (competing undertakings whose interests could be affected
by the granting of State aid to the beneficiary could be individually concerned) from those which, like the underlying Decision in Asempre and Uno, were adopted under Article 108(3) TFEU (competing undertakings
whose position is substantially affected by the State aid in question could be individually concerned) (Asempre,
paras. 39-40, Uno, paras 31-32).
• Made it clear that although the analysis that the competing undertakings’ position is substantially affected
does not require a definitive ruling on the competitive relationship between the applicant and the beneficiary, the applicant has to adduce pertinent reasons to show that the decision under appeal may harm its legitimate interests by substantially affecting its position on the market. Although this requirement may be met where the
applicant shows that the State aid measure is liable to have a substantial adverse effect on its position, the fact
that the applicant and the beneficiary are in a competitive position does not suffice for the applicant to show
that its position is substantially affected (Asempre, paras 42-45, Uno 34-37). It was thus not enough for the Associations to show that some of their members were in a competing relationship with the alleged beneficiary
(Asempre, paras. 50-53; in Uno, para. 42, the GC established that the association had not even shown that its members effectively provided services in the market in question).
• Clarified that competing undertakings can demonstrate a substantial adverse effect on their position not only by showing a (significant) decline in their commercial, financial or market position following the grant of the
aid in question, but also the loss of an opportunity to make a profit or a less favourable development than in
the absence of such aid (Asempre, para. 46, Uno 38). Although the Associations’ had referred to the beneficiary’s
alleged dominant position or to the disappearance of certain competitors from the market, they failed to show that their position was substantially affected by the granting of aid, or that the disappearance of the mentioned
competitors was related to the granting of aid (Asempre, paras. 60 and following, Uno paras. 46 and following). In analysing whether the interests of the Associations themselves were affected (iii), the GC observed that the
Associations’ participation in the preliminary examination procedure that led to the adoption of the decision
does not suffice to show an association’s locus standing (Sniace, Case C-260/05 P, paras. 56-60), neither do their representativity or standing under national law. Given that the associations had also not shown that their
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negotiating position was affected by the challenged Decision, the GC rejected also the admissibility of the appeal under (iii) (Asempre, paras. 68-75, Uno, paras. 54-60). Conclusion The judgments in Asempre and Uno are a reminder of the burden of proof that applicants need to meet to bring
actions for annulment under Article 263(4) TFEU. Applicants can further not invoke the right to judicial
protection in relation to this high burden (Asempre, paras. 78-79, Uno, paras. 62-63): they still have other means to challenge the acts that may affect them under national law, or via the preliminary ruling procedure.
Nieves Bayón Fernández is an Associate at the EU and Competition law department of an international firm in Brussels.
SUGGESTED CITATION: Bayón Fernández, N.; “Dismissal on Grounds of Inadmissibility: About the Associations’ (Lack of ) Legal Standing to Challenge the Underlying State Aid Decisions in Asempre (T-513/20) and Uno (T-514/20)”, EU Law Live, 09/01/2023, https://eulawlive.com/analysisdismissal-on-grounds-of-inadmissibility-about-the-associations-lack-of-legal-standing-to-challenge-the-underlying-state-aid-decisions-in-asempre-t513-20-and-uno-t-51/
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The Court of Justice clarifies the scope of application of the Services Directive in relation to operating leasing, long-term rental services, and financial leasing in AUTOTECHNICA FLEET SERVICES (C-278/22) Boris Belortaja On 21 December 2023, the Court of Justice handed down its judgment in AUTOTECHNICA FLEET
SERVICES (C-278/22), a case concerning a preliminary ruling request from the Administrative Court in Zagreb
seeking clarification, essentially, on whether operating leasing and/or long-term car rental services fall within the
scope of application of Directive 2006/123/EC (‘the Services Directive’), and whether imposing an authorisation requirement as a condition to offer such services in the territory of a Member State is compliant with the provisions of the mentioned directive and Article 49 TFEU on the freedom of establishment. Factual Background The applicant in the main proceedings is an undertaking, which provides cross-border, long-term rental of motor vehicles, without having first obtained prior authorisation from the Croatian Financial Services Supervisory Agency. The vehicles are acquired by the applicant undertaking (in the capacity of the lessor), at the request of the lessee, with a view to leasing them to the latter in return for the payment of a fee, without, however, an obligation
for the ownership of the vehicle to be transferred from the lessor to the lessee. Following an extraordinary audit of the lessor, the Supervisory Agency issued a decision by which it prohibited that undertaking from conducting leasing transactions, without first obtaining authorisation.
Contrary to the view of the agency, the applicant contended that its rights conferred by the acquis Communautaire had been infringed, specifically the freedom of establishment and freedom to provide services. Moreover, it
maintained that the Croatian authorities were not within their rights to equate the with a financial service, with the consequence that the agency could not have had the power to supervise and render a decision by which the concerned activity is restricted.
Within this context, the referring court sought clarification, before the Court of Justice, on whether operating leasing and/or long-term car rental services falls within the scope of application of the Services Directive, and whether, were it to fall within the scope of the Services Directive, the Croatian Agency for the Supervision of
Financial Services would have the power to supervise and impose restrictions on undertakings engaging in such activities. Finally, the referring court asked whether the authorisation requirement is permitted under the freedom of establishment, as enshrined in Article 49 TFEU, and Articles 9 and 13 of the Services Directive.
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Brief Legal Context According to Article 2(1) of the Services Directive, the rules contained thereof ‘shall apply to services supplied by
providers established in a Member State’. Article 2(2) of that directive is an exclusionary measure, which states that the concerned rules shall not apply, inter alia, to financial services, such as banking, credit, insurance and
re-insurance, occupational or personal pensions, securities, investment funds, payment and investment advice, including the services listed in Annex I to Directive 2006/48/EC. The judgment In the case at hand, the Court of Justice identified three criteria, in accordance with which operating leasing and/ or long-term car rental services constitute ‘financial services’, within the meaning of Article 2(2)(b) of the Services Directive, namely when:
• the rental contract is subject to an obligation to purchase the vehicle at the end of the rental period; • the fees paid under that contract by the lessee are intended to enable the lessor to amortise fully the costs incurred by him or her in acquiring the vehicle, or;
• the rental contract involves a transfer of the risks linked to the residual value of the vehicle upon expiry of that contract.
The Court held that the fulfilment of one of the above criteria would emphasise the credit nature of an operating leasing/long-term rental contract, thereby turning the services provided thereof into financial services.
Moreover, the Court stated that the acquisition of the vehicles by the lessor at the specific request of the lessee, as well as the absence of a buy-out option in the contract, do not, in itself, affect whether the services provided
under that contract fulfil any of the above criteria of the present judgment to be classified as financial services. Also, it held that ‘depending on the nature of the leased asset and its depreciation rate, it is possible that, at the
end of a long-term rental, that asset will have lost almost all of its value, so that the lessee will have no interest in becoming its owner’.
Accordingly, having not fulfilled the mentioned criteria, the Court held that the services provided in the case at hand fall within the scope of the Services Directive.
The Court proceeded to confirm that the authorisation requirement, as well as the power of the Croatian Financial Services Supervisory Agency to supervise the implementation of that requirement, as prescribed by the relevant national rules, are incompatible with Articles 9(1), 10(1) and 10 (2) of the Services Directive. Concluding Remarks and Analysis The importance of the decision rests in the fact that the Court of Justice, for the first time, assessed leasing, specifically operating leasing and/or long-term rental contractual relationships and financial leasing, in light of www.eulawlive.com
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the scope of application of the Services Directive. In doing so, the Court confirmed that operating leasing falls, in principle, within the scope of that directive, unless it falls under the consideration of financial leasing, which takes place when the credit nature of the agreements overruns the objective of renting the underlying product.
The interpretation of the Court is not only consistent with the Opinion of Advocate General Szpunar, but
also with the Court of Justice’s judgment in BMW and Others ( Joined cases C‑38/21, C‑47/21 and C‑232/21), delivered in the same day, and the Opinion of Advocate General Collins rendered in relation to the latter case.
The Court was able to confirm its standing, in both cases, by granting the concept of ‘financial services’ the status
of an ‘autonomous concept of EU law’, since neither national legislation, nor EU secondary law, provided a definition of that notion. This would mean that, from now on, all national courts of the Member States, as well
as, of course, Union courts, would have to follow the criteria identified by the Court when in doubt about the applicability of the Services Directive to a leasing agreement.
Also, worthy of mention appears to be the possible implication of the difference drawn between operating leasing services and long-term rental services. In this case, the two notions are used mostly interchangeably, particularly
by the Advocate General, which is not necessarily surprising, considering that the questions referred did not
require the Court to dwell much on the matter. Nevertheless, the Court seems to have welcomed the difference that stems, in this case, from Croatian law, namely that ‘leasing, whether operating or financial, differs from a mere long-term rental contract due to the fact that the lessor is not the original owner of the leased asset, but acquires it at the request of the lessee, precisely in order to lease it to that lessee’.
This difference implies that long-term rental contracts ‘do not need to worry’ about the second criterion designated by the Court when assessing whether operating leasing should be deemed financial leasing, since the lessor is the
original owner and there are no costs for the lessee to amortise. Accordingly, it would be interesting to see in the future whether, in case of a long-term rental contract, the Court remaining criteria would imply that long-term
rental contracts enjoy an automatic access to the provisions of the Services Directive, in contrast to operating leasing, which has to ‘prove itself ’ before availing itself to such provisions.
Boris Belortaja is an Assistant Editor and Legal Reporter at EU Law Live.
SUGGESTED CITATION: Belortaja, B.; “The Court of Justice clarifies the scope of application of the Services Directive in relation to operating leasing, long-term rental services, and financial leasing in AUTOTECHNICA FLEET SERVICES (C-278/22)”, EU Law Live, 11/01/2023, https://eulawlive. com/analysis-the-court-of-justice-clarifies-the-scope-of-application-of-the-services-directive-in-relation-to-operating-leasing-long-term-rental-services-and-financial-leasing-in-autotechnica/
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‘Keeping aid to yourself ’ when you are part of a holding groupRyanair and Malta Air v Commission T-216/21 Małgorzata Cyndecka On 20 December 2023, the General Court reviewed yet another Covid-19 Commission decision that was challenged by Ryanair. In Ryanair and Malta Air v Commission (Air France; COVID-19) (T-216/21), the Irish and Maltese low-cost airlines sought the annulment of a Commission decision authorising aid granted by France
to Air France. Although Air France was part of the Air France-KLM holding group, the Commission excluded the possibility that the Air France-KLM holding or KLM, including KLM’s subsidiaries, could benefit from the aid at issue. Air France and its subsidiaries were declared to be sole recipients. That finding was contested by the applicants. Following a thorough examination, the General Court concurred on the Commission’s failure in
determination of the beneficiary of aid. Unsurprisingly, the entire compatibility assessment was flawed and the decision in question was annulled.
The Commission’s determination of the beneficiary of aid boiled down to assessing whether companies which
formed part of the Air France-KLM group should be regarded as a single economic unit or rather as being legally
and financially independent units for the purposes of applying State aid rules. When making such an assessment, the Commission has a broad discretion and the judicial review is limited. At the same time, however, the Court
must establish whether the evidence the Commission relied on is factually accurate, reliable and consistent and
whether that evidence contains all the relevant information which must be taken into account in order to assess a complex situation, and whether it is capable of substantiating the conclusions the Commission drew from it.
When establishing the criteria according to which the Commission’s determination of the beneficiary of aid
should be reviewed, the General Court recalled the relevant case law and took into account the arguments of the parties. As a result, it examined the capital, organic, functional and economic links between the Air France-KLM
holding, Air France and KLM and their respective subsidiaries, the agreements on the basis of which aid at issue was granted, as well as the type of aid granted and the context of that aid.
The capital and organic links within the Air France-KLM group revealed that the Air France-KLM holding exercised control by involving itself directly or indirectly in the management of Air France and KLM, and thus took part in the economic activity they carried on. That indicated that the separate legal entities within the Air
France-KLM group formed a single economic unit for the purposes of State aid rules. This conclusion was
confirmed by an assessment of the functional and economic links between the Air France-KLM holding, Air France and KLM.
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As regards the agreements on the basis of which the aid at issue was granted, the General Court recalled that the
case-law had accepted that the beneficiary of aid could be only one of the companies forming part of a group, where there were, inter alia, allocation clauses which gave one of the companies in that group the benefit of that aid, to the exclusion of the other companies in that group. Yet, in the present case, the agreements in question did not support the Commission’s finding that the sole beneficiaries of aid were Air France and its subsidiaries.
Furthermore, although the type of aid measure granted and the context in which it was granted were relevant to the determination of the aid beneficiary, they were not properly considered by the Commission.
Finally, the Commission’s argument that the aid at issue could, at most, amount to secondary economic effects
with respect to the Air France-KLM holding and its other subsidiaries was also rejected. Indeed, the Air FranceKLM holding itself retained, in legal terms, the aid in question and controlled several conditions of that aid. The type of aid and the context in which it was granted indicated that it was likely to benefit the Air France-KLM group as a whole by improving its overall financial position.
Interestingly, the Commission committed the same errors in determining the beneficiary of aid when it subsequently authorised aid to Air France and the Air France-KLM holding, to the exclusion of KLM. This
decision was annulled by the General Court in Ryanair and Malta Air v Commission (Air France-KLM and Air France; COVID-19) (T-494/21). While Ryanair’s actions for annulment of Commission’s decisions are not often successful, this time the Commission’s evaluations were either erroneous or simply incomplete. Given the type of
beneficiaries and the sector concerned, a flawed compatibility assessment may have serious consequences. As the General Court recalled, where there are grounds to fear the effects on competition of an accumulation of State aid within the same group, the onus is on the Commission to exercise particular vigilance in examining the links between companies belonging to the same group.
Małgorzata Cyndecka is Associate Professor at the Faculty of Law, University of Bergen. She is also Associate Editor of European State Aid Law Quarterly.
SUGGESTED CITATION: Cyndecka , M.; “Keeping aid to yourself ’ when you are part of a holding group- Ryanair and Malta Air v Commission T-216/21”, EU Law Live, 10/01/2023, https://eulawlive.com/analysis-keeping-aid-to-yourself-when-you-are-part-of-a-holding-group-ryanair-andmalta-air-v-commission-t-216-21-by-malgorzata-cyndecka/
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THE LONG READ
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2023 in the Union Courts. Ten leading Judgements of the year Daniel Sarmiento1
2023 was yet another important and busy year for the Court of Justice. The Grand Chamber was once again at full
speed, but with frequent rulings of relevance coming from five-judge chambers. The reform of the Statute and the decentralisation of preliminary references materialised into a political and legal reality, giving rise to a bundle of measures that will transform the Institution forever. The Polish crisis changed gear into a much more EU-friendly
phase following the fall of the PiS-led government in Warsaw, taking pressure away from the Court after years of tensions on rule of law matters. And after a long period of continuous constitution-building, it appears that
2023 came with a change of air, a time in which competition, the internal market and new policy areas, such as data protection and banking union, became the main focus of the Court’s attention. It is hard to recall another
recent year in which so many relevant competition cases were decided by the Court of Justice, but 2023 seems a clear winner in this regard: the Superleague saga, Towercast, Meta Platforms, CK Telecoms, are all major rulings
introducing momentous change in EU competition law. They were all the result of the 2023 harvest, probably the last one to produce such a spectacular number of significant competition judgments.
Is the tide turning in the Court’s institution-building appetite, or is this a mere result of arbitrary and fortuitous
docket development? It is difficult to say. 2024 will give the Union courts plenty of reasons to go back to constitution-building mode, with hugely relevant cases in the pipeline, from golden visas to Article 2 TEU infringements, the follow-up to Quadrature du Net, as well as the many sanctions cases that are piling up on
appeal, awaiting the Court’s final say on the matter, just to mention a few. In any event, it gives some comfort to
see the comeback of the internal market and some of the classics of EU economic law into the spotlight, as a sign
that free movement, competition, State aid, etc., are still at the heart of the integration project. All the judgments rendered in these areas resulted in robust findings in an attempt to ensure the effectiveness of Union action, a sign of the importance of being judicially present in these fields, no matter how settled or well-established the case-law
may seem. In 2024 we may go back to constitution-building mode, but the nice dose of internal market case-law that we got in 2023 is a sign of the vitality of the EU’s role as policy maker, and of the Court’s role in keeping those policies alive and kicking.
1. Professor of EU Law, Universidad Complutense de Madrid, and Editor-in-Chief of EU Law Live.
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Meta Platforms The first major collision between the universe of data protection and world of competition finally materialised
in the Meta Platforms case.2 The result was not much of a big bang, but rather an emergence of a multiverse, in
which the Court gave a green light to the overstepping tasks of national authorities dealing with competition and
data protection. In the case at hand, the question concerned whether the German Competition Authority could implement GDPR and other data protection rules to enforce competition law. The Court of Justice responded
with a resounding ‘yes’, highlighting the virtues of cooperation among national authorities, even in the absence of
EU or national rules determining how such cooperation is to come about . In the ever growing digital economy, in which personal data has become the most valuable of assets, the mutual reinforcing of national competition and
data protection authorities is an approach intended to bolster the effectiveness of Union law. Only time will tell
if such an approach truly protects the individual and the holders of personal data, or whether it is just yet another layer of regulatory red tape with little impact in the overall effectiveness of EU competition and/or data policies. European Superleague / ISU / Royal Antwerp These were undoubtedly the most talked about rulings of the year.3 But of course, once football comes into play, it is difficult for any other cases to compete, no matter how interesting they may be. In the ‘sports trio’ of 2023,
the Court of Justice faced an important question of principle: to what extent is the ‘European Sports Model’ sufficiently robust to justify a derogation from standard EU competition law? The development of a Superleague by a group of rebellious (but very powerful) football clubs, a project accused of being elitist and too ‘American’ in its approach to football competition, was the perfect scenario to raise such an issue. The Court of Justice gave a
balanced answer, making it clear that there is no special status for football (or sports, for that matter) under EU competition law, in contrast with the proposal raised by the Advocate General.4 As a result, UEFA is fully subject
to EU law and its activity is ‘economic’ for the purposes of Articles 101 and 102 TFEU, thus subject to specific duties of care in order to remain within the remit of the EU competition rulebook. The conditions were fleshed out in sufficiently broad terms to allow UEFA to claim victory, but the reality is that EU law has now fully entered
into the realm of international sports, irrespective of where their governing bodies are located or of the kind of
social dimension that the activity may have. The battle for the Superleague and the soul of European sports is far from over, but the basic terms of the game have been clearly spelled out by the Court of Justice in these three major judgments.
2. Judgment of 4 July 2023, Meta Platforms Inc. and Others, C-252/21, EU:C:2023:537.
3. Judgments of 21 December 2023, European Superleague Company and Others, C-333/21, EU:C:2023:1011; International
Skating Union v Commission, C-124/21 P, EU:C:2023:1012 and Royal Antwerp Football Club, C-680/21, EU:C:2023:1010.
4. Opinion of Advocate General Rantos of 15 December 2022, European Superleague Company and Others, C-333/21,
EU:C:2022:993.
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Puig Gordi The judgment is not revolutionary, but it was eagerly awaited by many.5 The Court of Justice had the opportunity
of reviewing and codifying its previous (and abundant) case law on the grounds under which a European Arrest Warrant can be rejected, and in the politically charged environment of the criminal proceedings launched by
Spanish authorities against several Catalan pro-independence leaders. Belgian courts had repeatedly refused to
enforce EAWs issued by Spanish courts, on the grounds that basic rule of law standards had not been complied with in Spain. This analysis was far from being kosher and the parallelisms with the previous Polish cases (LM and others6) sounded too extreme to be credible, but that did not stop Belgian courts from boycotting the enforcement
of several EAWs coming from Spain. In its judgment, the Court of Justice developed in detail the terms under
which an enforcement court is empowered to question the conditions in which an issuing court makes its request, the procedural context in which it issues the order and the overall guarantees that the issuing Member State must abide by. The bottom-line is simple: unless a serious deficiency of a structural scope is confirmed in the issuing
Member State, the EAW must be enforced. The logic that applied to Irish courts enforcing Polish EAWs in the
LM saga, should also apply to Belgian courts when having to enforce orders they are unhappy with. To make things even more interesting, the reference did not come from the enforcement jurisdiction, but from the Member
State of issuance of the EAW. As a result, it is confirmed that courts of issuance can now question the behaviour of the enforcement courts, reversing the traditional logic of mutual recognition.7 CK Telecoms The judgment in CK Telecoms is a landmark case in EU competition law,8 in particular for merger control. The
ruling is of major significance for two reasons: First, it contains the Court of Justice’s first judicial elaboration on the application of the ‘Significant Impediment to Effective Competition’ (SIEC) test, particularly in oligopolistic markets. Second, it provides clarity on the scope and intensity of judicial review and the Commission’s discretion
in its economic assessments. On both counts, the judgment sets the record straight, overruling the attempt of the
General Court to enter into the field of economic assessment and confirming the need to limit the court’s role to an assessment of the merits based on the law. In this regard , the CK Telecoms judgment provides further guidance
as to the intensity of judicial review in merger control and, when read together with ECB/Crédit Lyonnais (see below), the implications go well beyond the terrain of competition law.
5. Judgment of 31 January 2023, Puig Gordi and Others, C-158/21, EU:C:2023:57.
6. Judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) C-216/18 PPU, EU:C:2018:586;
judgment of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority) C-354/20 PPU and C-412/20 PPU, EU:C:2020:1033; judgment of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C-562/21 PPU and C-563/21 PPU, EU:C:2022:100. 7. Further advancing the avenue opened in the judgment of 25 July 2018, AY (Arrest Warrant – Witness), C-268/17, EU:C:2018:602. 8. Judgment of 13 July 2023, Commission v CK Telecoms UK Investments, C-376/20 P, EU:C:2023:561.
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Xella Magyarország The Foreign Direct Investment Screening Regulation was finally put to a test in the Xella Magyarország case,9
but its judicial inauguration turned out to be quite a disappointment. In a rather restrictive approach, the Court
of Justice concluded that the Regulation does not apply to the screening of indirect foreign investment, thus
excluding a wide array of economic activity indirectly controlled from third countries. However, this restrictive reading of the Regulation was balanced out with a broad interpretation of the scope of application of free movement rules, which, according to the Court, apply to an investment involving two domestic companies, of
which the purchaser is controlled by an EU parent. In sum, the FDI Screening Regulation will have to coexist with free movement rules, in a way that will need close coordination between the Member States (and mostly the abundant legislation introduced in the recent years, most of it highly restrictive of foreign investment from third
countries), the Commission and the development of the Court’s case-law. To give a glimpse of how seriously the Court is taking the matter, in Xella Magyarország it stated that a Hungarian provision empowering a Minister to
outlaw an acquisition on the grounds of risks to the national economy was in breach of freedom of establishment provisions. Considering the very restrictive national legislations that have been enacted to implement the FDI
Screening Regulation thus far, the Xella Magyarország judgment is an important wakeup call calling for caution and contention when trying to stretch the scope of this new tool and its national progeny. Towercast The edifice of EU competition law was shaken following the Towercast case.10 The ruling confirms that mergers
falling below the European and national thresholds can be assessed by national competition authorities under
Article 102 TFEU, thus allowing for a new tool to be used by an extended set of authorities under strict conditions. This was a welcome clarification of Contintental Can (6/72)11 and Austria Asphalt (C-248/16),12 but the effect of
the judgment is clear: merger control is now widened, since a merger not reaching the national and European thresholds can be assessed by national authorities under Article 102 TFEU – even outside an Article 22 EUMR
referral. Some safeguards were introduced by the Court of Justice to avoid too much uncertainty (mostly by setting a high standard for the use of Article 102 TFEU), but the effect of the ruling has already begun to be felt in the national competition arenas.
9. Judgment of 13 July 2023, Xella Magyarország, C-106/22, EU:C:2023:568. 10. Judgment of 16 March 2023, Towercast, C-449/21, EU:C:2023:207.
11. Judgment of 21 February 1973, Europemballage and Continental Can v Commission, 6/72, EU:C:1973:22. 12. Judgment of 7 September 2017, Austria Asphalt, C-248/16, EU:C:2017:643.
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ECB/Credit Lyonnais The debate around the intensity of judicial review in EU courts came back with a vengeance in ECB/Crédit
Lyonnais,13 a case touching on a highly technical point of banking supervision that gave the Court of Justice a
chance to set the record straight. The judgment rejects the General Court’s intensive approach towards judicial review in banking supervisory matters, an approach that led the first instance court to substitute the technical
discretion of the ECB by a judicial-made solution. The Court of Justice disagreed, in line with the powerful
Opinion of AG Emiliou,14 and along the way it codified the position of the case-law on the always sensitive
matter of intensity of judicial review. The importance of the case goes well beyond the realm of Banking Union, an area in which the General Court was struggling to find an appropriate balance in the face of growing litigation and robust ECB administrative action. The signal being sent from Luxembourg is good news for the ECB and for EU Institutions and agencies generally: wherever they hold technical discretion, it is not the role of the Union
courts to second-guess the executive branch. The message is not revolutionary, it was always there, but the frequent incursions of the General Court into more intrusive forms of judicial review could have shed some doubts about
the robustness of the official stance. There are no doubts no more, orthodoxy has been reinstated, including in areas in which the EU holds powerful federal-like powers, as is the case of banking supervision. Nordic Info The first major Covid case reached the Grand Chamber in 2023 in Nordic Info,15 a preliminary reference originating
from Belgian courts questioning a general national measure imposing a ban on the entry and exit of Union citizens based on a color code drawn up on the basis of epidemiological data. The national court had doubt as to the compatibility of this national regime with the residence Directive and the provisions of the Schengen Borders
Code. In a carefully crafted ruling, the Court of Justice gave its blessing to Belgium’s restrictions to freedom of
movement during the pandemic, confirming that Member States can enforce travel bans and impose testing and quarantine obligations on individuals entering their territories. But the most relevant part of the judgment is not
to be found in the restriction, but in the analysis of the conditions to be complied in order for the regime to pass the proportionality test. In this regard, the judgment provides useful guidance for future national legislation on emergency situations requiring limitations on movement of persons, thus fleshing a post-Covid codification of how emergency law should look like in the Member States.
13. Judgment of 4 May 2023, ECB/Crédit Lyonnais, C-389/21 P, EU:C:2023:368.
14. Opinion of Advocate General Emiliou of 27 October 2022, ECB/ Crédit Lyonnais, C-389/21 P, EU:C:2022:844. 15. Judgment of 5 December 2023, NORDIC INFO, C-128/22, EU:C:2023:951.
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GK and B.O.D GmbH The European Prosecutor’s Office is one of the most ambitious and ground-breaking institutional projects created by the Union in recent times. Touching at the very core of Member State sovereignty, in the heart of criminal
policy, it is no surprise that it took many years and significant political capital to finally come through (and when it did, it became a reality only through an enhanced cooperation). Once in force, the legal edifice was full of
questions and gaps to be resolved by the Court of Justice. The time came in the case of GK and B.O.D GmbH, the first judgment of the Court of Justice on the matter,16 in which it had to decide on the scope of national
judicial review undertaken by the domestic criminal courts in the context of cross-border investigations. The case in itself was not of systemic relevance, but the Court of Justice used the opportunity to flesh out its general
approach towards the interpretation of the EPPO’s Regulation. In a nutshell, the ruling reinforces the role of the
handling prosecutor (in charge of centralising the procedure) and limits the scope of review of the courts in the assisting Member State. The purpose is to bolster the powers of the centralising authority in order to avoid the fragmentation of the system and, consequently, its ineffectiveness. This remedy before the courts of the handling
prosecutor includes claims of breaches of fundamental rights, irrespective of the fact that their impact might materialize in the assisting Member State. In sum, the EPPO received a considerable boost that will reinforce the effectiveness of its investigations and, eventually, of its powers too. Krajowa Rada In the midst of the rule of law crisis in Poland, doubts emerged as to whether Polish courts could still be considered to be independent, in light of the continuous degradation that the legislative reforms of the judiciary
had provoked in the country. For several years, the Court of Justice was reluctant to affirm, as a matter of principle, that Polish courts were not ‘jurisdictions’ pursuant to Article 267 TFEU for lack of independence, in the tacit understanding that it was precisely through the preliminary reference procedure that the Polish judges that still remained independent could protect themselves from legislative interventions. The Court of Justice became open
to the idea, but only on a case-by-case basis following the Getin Noble case.17 However, it was not until 2023, in the Krajowa Rada case,18 when the Court of Justice finally came to the conclusions that a Polish court, and none other
than the Supreme Court, was not independent and was therefore precluded from making preliminary references to the Court of Justice. This is a major development with dramatic consequences, in particular in light of the
role played by any Supreme Court in a Member State. Depriving the Polish high court from making references to Luxembourg is a major development, now turned into an ever-more complex scenario following the latest
elections in Poland, which have ousted the ruling PiS from government, but leaving its judicial proxies in place. If handling a rule of law crisis was difficult for the Court of Justice, having to deal with its aftermath might become an even more challenging task.
16. Judgment of 21 December 2023, G.K. and Others (Parquet européen), C-281/22, EU:C:2023:1018. 17. Judgment of 29 March 2022, Getin Noble Bank, C-132/20, EU:C:2022:235.
18. Judgment of 21 December 2023, Krajowa Rada Sądownictwa (Maintien en fonctions d’un juge), C-718/21, EU:C:2023:1015.
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SUGGESTED CITATION: Sarmiento, D.: “2023 in the Union Courts. Ten leading Judgements of the year”, EU Law Live Weekend Edition nº 169, https://eulawlive.com/weekend-edition/weekend-edition-no169/
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HIGHLIGHTS OF THE WEEK
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Court of Justice to rule on tax disparities for non-resident companies Monday 8 January
Official publication was made of a preliminary ruling request from the Tribunal Superior de Justicia del País Vasco (Spain), lodged on 29 September 2023, concerning potential tax laws discriminatory practices against non-resident companies: Credit Suisse Securities (Europe) (C-601/23). Read on EU Law Live
Action seeking compensation against ECB’s conduct when adopting decision to withdraw authorisation of credit institution, published in OJ Monday 8 January
Official publication was made of an action, brought on 4 November 2023, from Pilatus Bank against the decision of the European Central Bank to withdraw the applicant’s authorisation to take up business as a credit institution: Pilatus Bank v ECB (T-1056/23).
Read on EU Law Live
Meta Platforms challenges Commission’s DMA decision: legal action on core platform services listing Monday 8 January
Official publication was made of an action, brought on 15 November 2023 by Meta Platforms against Commission, by
which the tech giant seeks to annul specific aspects of the Commission’s decision dated September 5, 2023 (the Contested Decision), pertaining to the classification of its core platform services under Regulation (EU) 2022/1925. Read on EU Law Live
Apple challenges Commission’s market investigations and gatekeeper designation Monday 8 January
In two separate legal actions, filed on November 16, 2023, (Cases T-1079/23 and T-1080/23), Apple Inc., has sought to
challenge specific aspects of the Commission’s decisions dated September 5, 2023, referencing Regulation (EU) 2022/1925. Read on EU Law Live
Appeal brought by the EDPS against judgment of the General Court rejecting an action for annulment regarding provisions of the Europol Regulation Monday 8 January
An appeal, brought on 16 November 2023, by the European Data Protection Supervisor (EDPS) against the order of the General Court (First Chamber, Extended Composition), delivered on 6 September 2023, in European Data Protection
Supervisor v Parliament and Council (T-578/22), was officially published in the OJ: EDPS v Parliament and Council (C698/23 P).
Read on EU Law Live
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Slovak Telekom seeks compensation from the EU in relation to Commission’s decision relating to proceedings under Article 102 TFEU and Article 54 EEA Agreement Monday 8 January
Official publication was made of an action, brought by Slovak Telekom, on 22 November 2023, against the EU, represented
by the European Commission, by which compensation has been sought in the amount of EUR 112 525,77: Slovak Telekom v Commission (T-1092/23). Read on EU Law Live
Court of Justice declares inadmissible two requests for preliminary rulings submitted by Polish judges concerning inherent requirements of an independent and impartial tribunal Tuesday 9 January
The Court of Justice rendered a decision on two preliminary rulings submitted by Polish judges questioning the compliance
of the composition of judgment panels with the requirements of an independent and impartial tribunal under European Union law.
Read on EU Law Live
Commission approves support measures for Germany and France to accelerate the green transition and reduce fossil fuel dependencies Tuesday 9 January
The European Commission approved two measures to support Germany and France in transitioning towards a net-zero economy in line with the Green Deal Industrial Plan. Read on EU Law Live
Court of Justice streaming today’s hearing of case concerning the non consensual collection, processing and use of health data by Amazon Tuesday 9 January
The Court of Justice’s hearing in Lindenapotheke (C-21/23), a case concerning a preliminary ruling request, by which
clarification has been sought regarding the interpretation of the provisions of the General Data Protection Regulation (GDPR) and the Data Protection Directive, was streamed on the website of the Court of Justice. Read on EU Law Live
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EBA enhances EU framework for cross-border banking supervision with updated standards Wednesday 10 January
The European Banking Authority (EBA) released final drafts of Regulatory Technical Standards (RTS) and Implementing Technical Standards (ITS) concerning the functioning of supervisory colleges under the Capital Requirements Directive (CRD).
Read on EU Law Live
Ombudsman finds maladministration in Commission’s interactions with representatives of the tobacco industry Wednesday 10 January
The European Ombudsman conducted an inquiry into the European Commission’s compliance with tobacco lobbying provisions outlined in the Framework Convention on Tobacco Control (FCTC) of the World Health Organization. Read on EU Law Live
Council advances new support mechanism for Ukraine’s recovery and reforms Thursday 11 January
The EU Member States’ ambassadors approved a partial negotiating mandate on a proposal for the proposed Ukraine Facility, an initiative aiming to consolidate the EU’s budget support to Ukraine into a single dedicated instrument, streamlining assistance for the nation’s recovery, reconstruction, and modernization. Read on EU Law Live
Council adopts partial negotiating mandate relating to proposed rules on the Strategic Technologies for Europe Platform Thursday 11 January
The Council agreed on its partial negotiating mandate on the proposed regulation concerning the Strategic Technologies
for Europe Platform (STEP), the aim of which is to support investments in critical technologies in the fields of digital and deep tech, clean tech and biotech in the EU, as well as reduce the EU’s strategic dependencies and enhance its long-term competitiveness.
Read on EU Law Live
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AG Richard de la Tour: Union law precludes national rules impeding EU citizens who reside in Poland, Czech Republic from becoming members of a political party Thursday 11 January
On 11th January, Advocate General Richard de la Tour delivered his Opinion in Commission v. Czech Republic (C-808/21)
and Commission v. Poland (C-814/21), following two actions for failure to act, launched by the Commission, concerning a set of domestic laws which preclude Union citizens who reside in those Member States, but who are not nationals of those countries, from exercising their right to stand as candidates in municipal and EU elections under the same conditions as Polish and Czech nationals. Read on EU Law Live
Court of Justice dismisses action for compensation brought by Dyson for the adoption of Delegated Regulation (EU) No 665/2013 concerning the energy labeling of vacuum cleaners Thursday 11 January
The Court of Justice delivered its judgment in Dyson and Others v Commission (Case C-122/22 P) concerning the judicial saga between the vacuum cleaner manufacturer Dyson Ltd, as well as the other appellants that are part of the same group of companies, and the Commission relating to the testing methods for the energy labeling of vacuum cleaners under EU law. Read on EU Law Live
AG Kokott: Court of Justice should uphold Commission fine on Google and Alphabet concerning abuse of dominant position on market for general and product search services Thursday 11 January
In Google and Alphabet v Commission (Google Shopping) (C-48/22 P), Advocate General Kokott delivered her Opinion
concerning a case, on appeal, by which the appellants claimed that the Court of Justice should annul the judgment of the General Court (case T-612/17) and the Commission Decision C(2017) 4444 final of 27 June 2017 relating to proceedings under Article 102 TFEU and Article 54 of the EEA Agreement. Read on EU Law Live
Hamers v Cedefop: Court of Justice annuls General Court’s decision on impartiality and presumption of innocence violation Thursday 11 January
The Court of Justice delivered its judgment in Hamers v Cedefop (C-111/22 P) concerning the appeal of the judgment of the General Court dated December 21, 2021, in the case of Hamers/Cedefop (T 159/20), raised on grounds concerning primarily the alleged a violation of the right to good administration and the presumption of innocence. Read on EU Law Live
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Italian rules imposing general and abstract obligations on online service providers established in other EU Member States breach Union law, holds AG Szpunar Thursday 11 January
AG Szpunar handed down his Opinion in Airbnb Ireland and Others ( Joined Cases C-662/22 et al.), concerning an Italian legal framework imposing obligations on online service providers, operating on its territory but established in another Member State.
Read on EU Law Live
État belge: National authority tasked with managing the Official Journal can be a ‘data controller’ for the purposes of the GDPR Thursday 11 January
The Court of Justice handed down its judgment in État Belge (Données traitées par un journal officiel) (C-231/22), a request
for a preliminary reference, brought by the Court of Appeal in Brussels, arising from a dispute between the Belgian State and the national data protection authority. Read on EU Law Live
Court of Justice: Directive on credit agreements for consumers allows the penalisation of creditor, although agreement has been performed in full without detrimental consequences Thursday 11 January
The Third Chamber of the Court of Justice handed down its judgment in Nárokuj (C-755/22), a case regarding a preliminary
ruling request, by which the referring court sought clarification on whether the purpose of Directive 2008/48/EC on credit agreements for consumers is to penalise credit providers for a failure to fully examine a consumer’s creditworthiness, even in cases when the consumer fully paid up the credit and raised no objections against the agreement while paying. Read on EU Law Live
Aarhus Convention: Court of Justice Clarifies access to justice for legal entities in environmental disputes Thursday 11 January
The Court of Justice rendered its judgment in Societatea Civilă Profesională de Avocaţi AB & CD (C-252/22) regarding the interpretation of Article 2(4) and Article 9(3-5) of the Aarhus Convention concerning access to information, public participation in decision-making, and access to justice in environmental matters. Read on EU Law Live
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Planistat Europe v. Commission: Court of Justice sets aside part of General Court’s judgment Thursday 11 January
On 11th January, the Court of Justice handed down its judgment in Planistat Europe and Charlot v. Commission (C-363/22
P), a case, on appeal, contesting the relevant judgment of the General Court on grounds that it primarily erred in interpreting the event giving rise to the damage in question. Read on EU Law Live
Court of Justice delivers judgment on the compatibility of a mechanism compensating damage resulting from a provisional measure with the Enforcement Directive Thursday 11 January
The Third Chamber of the Court of Justice delivered its judgment in Mylan (C-473/22), a case concerning the interpretation of rules relating to the enforcement of intellectual property rights. Read on EU Law Live
Court of Justice clarifies penalties for early termination of electricity supply contracts Thursday 11 January
The Court of Justice rendered its judgment in G (Frais de résiliation anticipée) (C-371/22) concerning a contractual penalty for early termination of a fixed-term energy supply contract. Read on EU Law Live
Coppo Gavazzi and Others v. Parliament: AG Kokott delivers Opinion on pension rights of former Italian MEPs Thursday 11 January
On 11th January, Advocate General Kokott handed down her Opinion in Gavazzi, Santini and Falqui v. Parliament ( Joined
Cases C-725/20 P, C-198/21 P and C-391/21 P), three disputes concerning the pension rights of three former Italian MEPs. Read on EU Law Live
Court of Justice dismisses appeal in Eurobolt v. Commission Thursday 11 January
The Court of Justice delivered its judgment in Eurobolt and Others v. Commission and Stafa Group (Case C-517/22 P), a case concerning an anti-dumping duty on imports of certain iron or steel fasteners consigned from Malaysia. Read on EU Law Live
www.eulawlive.com
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The Week
ISSUE Nº9 8-12 JANUARY 2024
Court of Justice clarifies scope of Article 6(1)(c) of Directive 2008/95/EC vis-à-vis Article 14(1)(c) of Directive (EU) 2015/2436 approximating laws of the Member States relating to trade marks Thursday 11 January
The Court of Justice delivered its judgment in Inditex (C-361/22), a case concerning a preliminary reference seeking
clarification on whether Article 6(1)(c) of Directive 89/104/EC approximating the laws of the Member States relating to trade marks implicitly includes within the limitation on trade mark rights the more general conduct referred to in Article 14(1)(c) of Directive (EU) 2015/2436 to approximating the laws of the Member States relating to trade marks. Read on EU Law Live
AG Szpunar: Article 101 TFEU and Article 47 of the Charter do not preclude documents addressed to a parent company established in one Member State from being served on a subsidiary in another Member State Thursday 11 January
Advocate General Szpunar delivered his Opinion in Volvo (Assignation au siège d’une filiale de la défenderesse) (C-632/22), a
case concerning the interpretation of Articles 47 and 53 of the Charter of Fundamental Rights, in the context of proceedings relating to Article 101 TFEU on the prohibition of cartels (in this case a trucks cartel). Read on EU Law Live
State Aid approval decisions in the Official Journal Friday 12 January
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
Expiry review of anti-dumping measures on aluminium radiators originating from China, published in OJ Friday 12 January
Official publication was made of a Notice of initiation of an expiry review of the anti-dumping measures applicable to imports of aluminium radiators originating in the People’s Republic of China. Read on EU Law Live
www.eulawlive.com
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The Week
ISSUE Nº9 8-12 JANUARY 2024
ESMA initiates Common Supervisory Action to assess implementation of pre-trade controls Friday 12 January
The European Securities and Markets Authority (ESMA) launched a Common Supervisory Action (CSA), with National
Competent Authorities (NCAs), aiming to assess the implementation of pre-trade controls (PTCs) by EU investment firms using algorithmic trading techniques. Read on EU Law Live
ECtHR: No violation of privacy rights in political email monitoring case Friday 12 January
The ECtHR unanimously ruled that there was no violation of the right to respect for private life and correspondence (Article
8), in Tena Arregui v. Spain, a case revolving around the collection and release of emails belonging to Rodrigo Tena Arregui, a former senior member of the UPyD party, during an operation to monitor suspicions of backroom deals between party members and the Ciudadanos party. Read on EU Law Live
Commission Implementing Regulation 2024/209 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of steel bulb flats from China and Türkiye, published in OJ Friday 12 January
Official publication was made of the Commission Implementing Regulation (EU) 2024/209 of 10 January 2024 imposing a
definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of steel bulb flats – niche steel products used in shipbuilding – originating in the People’s Republic of China and Türkiye. Read on EU Law Live
www.eulawlive.com
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