The Week Nº12 by eulawlive

ISSUE Nº12

Y EAR 2 0 2 4

29 January - 2 February 2024

IN-DEPTH: Singing the song of the fat lady: an innovative test on the standard of proof in default proceedings and the scope of Article 351(1) TFEU: the AG Emiliou’s Opinion in Commission v UK (C-516/22) Camilla Burelli Charting new constitutional waters: Spain’s General Council of the Judiciary and the Commission’s role as a domestic mediator Guillermo Íñiguez The Court of Justice and urgent matters (Case C-431/22 Scuola europea di Varese) Joachim Gruber Public service compensation – the trees do not grow into the sky (C-421/22 DOBELES AUTOBUSU PARKS) Grith Skovgaard Ølykke The contracting authority’s duty to state reasons in case of abnormally low tenders in the context of EU institutions’ procurement procedures Silvio Battista General Court finds that the SRB failed to fulfil its duty to state reasons as regards the calculation of the annual target level for the 2021 ex-ante contributions to the SRF Barbora Budinská A Broad Concept of ‘Controller’ under the GDPR: but Blurred Responsibilities? (Case C-231/22 État Belge (Données traitées par un journal official) Lisette Mustert COMPETITION CORNER: COMPETITION LAW AND SPORT Agent Fees, Player Transfers, and Transnational Leagues: What Lies Ahead for EU Football Law? Guillermo Íñiguez ISU, Superleague and Royal Antwerp Cases: from Specialty Towards Efficiency Rusa Agafonova THE LONG READ: Legal Grounds for Online Behavioural Advertising: A Case Study Liubomir Nikiforov BOOK REVIEW: Crimmigration and the Return Directive (Author: Aniel Pahladsingh) Review by Bas van Bockel HIGHLIGHTS OF THE WEEK

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IN-DEPTH

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Singing the song of the fat lady: an innovative test on the standard of proof in default proceedings and the scope of Article 351(1) TFEU: the AG Emiliou’s Opinion in Commission v UK (C-516/22) Camilla Burelli Introduction On 9 November 2023, Advocate General Nicholas Emiliou (the ‘AG’) rendered his Opinion in Case C-516/22, Commission v United Kingdom (here is a summary of the case; for a first comment, see Trajan Shipley). The

Opinion is interesting because it deals with a variety of (to some extent innovative and complex) issues in the context of a broader scenario concerning intra-EU Investments, in which the well-known judgments Genentech

(C‑567/14), Achmea (C‑284/16), Komstroy (C‑741/19), PL Holdings (C‑109/20) and Commission v European Food (C‑638/19 P) were delivered.

More specifically, the Opinion deals with the following issues: the specificities of proceedings by default; the

breach of Article 4(3) TEU for an alleged failure to stay national proceedings; the scope of Article 351(1) TFEU; the ‘problematic’ approach of the Supreme Court of the United Kingdom (the ‘Supreme Court’) to Article 54 of the 1965 Convention on the settlement of investment disputes between States and nationals of other States (‘the

ICSID Convention’); the supposed infringement of Article 267(3) TFEU by a national court of last instance; and, finally, the alleged infringement of Article 108(3) TFEU.

What makes these themes particularly interesting is that they are part of an infringement procedure launched against a State which has withdrawn from the Union.

Since the issues related to Article 351(1) TFEU and Article 54 of the ICSID Convention have already been addressed by Paschalis Paschalidis, this Op-Ed. will mainly focus on some other aspects, i.e. the innovative test

on default proceedings and the alleged breaches of Articles 4(3) TEU and 267(3) TFEU. This Op-Ed. will not

address the breach of Article 108(3), which does not seem to raise innovative issues. First of all, however, it is necessary to briefly summarise the situation regarding infringements against the United Kingdom post-Brexit. Infringements against the UK post Brexit One of the first aspects that makes this case peculiar is that the infringement procedure involves the United

Kingdom. Under Article 87(1) of the Withdrawal Agreement, the Court had jurisdiction to hear the case, since

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the Commission’s action under Article 258 TFEU was lodged within four years after the end of the transition period (on 29 July 2022) (point 38).

This is, to date, the only infringement procedure against the United Kingdom that reached the litigation phase

for a (alleged) breach that occurred at a point in time when that State had already decided to withdraw from

the Union, before the transition period relating to that withdrawal had ended. However, but it is not the only

procedure which has come to judgment after the end of that period: on 28 September 2022, in Case C-692/20, the United Kingdom was ordered to pay a lump sum of EUR 32 million for failing to comply with a previous judgment establishing an infringement (the case was commented, inter alia, by Alessandra Lang).

There are also other pending proceedings against the United Kingdom for failing to comply with parts of the

Protocol on Ireland/Northern Ireland, that are still at the pre-litigation stage (in more detail, see here and here). They all appear to be to concern questions of a rather technical nature in relation to facts which occurred after the withdrawal from the Union, which of course it is in itself significant, since the factual circumstances all occurred

after withdrawal as well as after the transition period and thus occurred under an international treaty with a third

State. However, the procedure de qua, on the contrary, involves some issues of a systemic nature. This makes it, arguably, the most interesting procedure among those. The innovative test on default proceedings One of the most innovative aspects of the Opinion of AG Emiliou concerns what it could be called a proper test on default proceedings. Taking into consideration only the action for failure to fulfil obligations, the Court of Justice has been called upon to give judgment in proceedings by default only in a handful of cases. From the

previous judgments of the Court, it is not easy to discern a clear test with regard to the standard of proof that is

to be applied with regard to the applicant’s pleas. Put simply, how far should the Court go in verifying whether

those pleas are well-founded? In his Opinion, the AG attempted to provide some guidance in that regard. First, he verified that the United Kingdom had confirmed the receipt of the application to the Court Registry. He then went on to examine the admissibility of the application, checking, on the one hand, whether it satisfied the requirements of clarity and precision laid down in Article 120 of the Court’s Rules of Procedure and, on the other hand, whether the complaints made therein corresponded to those previously raised in the letter of formal notice and in the reasoned opinion.

Subsequently, he turned to the more interesting issue of the ‘test’ with regard to the standard of proof to be

applied when assessing the applicant’s submissions in a procedure by default. Essentially, the AG affirmed that

‘the defendant’s failure to participate in the proceedings does not automatically entail the acceptance, by the Court, of the applicant’s claims’ (point 44). On the other hand, however, the Court is not required to carry out a

fully-fledged analysis of the facts alleged and the legal arguments put forward by the applicant (point 46). After

all, it cannot be expected otherwise: ‘by forfeiting its right to appear, the defendant chooses to forgo its ability to,

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inter alia, adduce evidence which may call into question the accuracy of the facts alleged by the applicant, or raise lines of defence which are in principle for the defendant to adduce and substantiate’ (point 46)

He recalled that Article 152(3) of the Rules of Procedure states that, in proceedings by default, the Court is

required to decide whether ‘the appellant’s conclusions appear well founded’. To assess this, according to the AG, it is not possible draw inspiration from the case-law concerning requests for interim measures under Articles 278 and 279 TFEU, in which the EU Courts verify the condition of fumus boni iuris, by examining whether a

claim is ‘prima facie not unfounded’. To the AG, the difference between a claim that ‘appears to be well founded’ and one that ‘appears not unfounded’ ‘is not merely terminological’ (point 45). The verb ‘appear’, in fact, indicates

that the ‘standard of review is one of relative benignity towards the claims of the applicant’ (point 46). Indeed, as

emphasised by the AG, ‘if the Court were to carry out a normal, fully fledged analysis of the applicants’ claims, both in law and in fact, the possibility for defendants to lodge an application to set aside the judgment by default would largely lose its rationale’ (point 50).

This is not an irrelevant point: Article 41 of the Statute of the Court, to be read in conjunction with Article 156(1) of the Rules of Procedure, provides that ‘[a]n objection may be lodged against the judgment [given by default]

within one month of it being notified’. It follows that the UK Government will be entitled to object the judgment that will be given by the Court of Justice. For the time being, it is difficult to make predictions on how the UK

will act, given that we must wait for the Court’s ruling. What is sure is that this additional avenue raises some interesting procedural questions: what standard of review should the Court adopt in such ‘opposition’ proceedings

after a default judgment has been issued? Can all substantial elements be reviewed? Or is the standard of review akin to ‘manifest error’ in the light of the arguments lodged by the (formerly non-participating) Member State against the Court’s own judgment? Being no precedent on this front, the case at stake (and its outcomes) are even more interesting.

The alleged breach of Article 351(1) TFEU and the ‘problematic’ interpretation of Article 54 of the ICSID Convention

As mentioned, the issues relating to the interpretation of Article 351(1) TFEU and the ‘problematic’ interpretation

of Article 54 of the ICSID Convention have already been dealt with by Paschalis Paschalidis. That notwithstanding, it seems useful to approach these aspects of the Opinion from a different angle, albeit briefly.

With its second ground of appeal, the Commission argued that the Supreme Court, having declared that EU law did not apply to the enforcement of the Micula v Romania award, since the United Kingdom was obliged to enforce it pursuant to Article 54 of the ICSID Convention towards all other contracting States of the ICSID Convention, including third Countries, the judgment had infringed Article 351(1) TFEU.

Note that, according to the AG, a Member State cannot infringe Article 351(1) TFEU, because that provision

merely constitutes a derogatory provision. Thus, an autonomous infringement of Article 351(1) TFEU cannot arise since the obligation flowing from that provision for the Member States would simply be to respect EU law www.eulawlive.com

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when the exception provided for therein is inapplicable, which in itself represents a ‘truism’ (point 118). A lack of compliance with Article 351(1) TFEU would, in fact, merely be the consequence of a breach of another provision

of EU law. Thus, the AG suggested to dismiss the Commission’s second ground for that provision could not form the basis of a procedure under Article 258 TFEU. However, the AG explained his views on the substance of the Commission’s ground, in case the Court did not agree with him.

AG Emiliou essentially put forward three arguments to explain why, in his view, the Supreme Court did err in

interpreting Article 351(1) TFEU. First, the Supreme Court used a very low threshold to determine whether an

obligation set out in a multilateral treaty obligation is ‘collective’ or ‘bilateral’ in nature. The AG was unconvinced by the Supreme Court’s conclusion that the provisions of the ICSID Convention in question included obligations

of a ‘collective’ nature and, consequently, could fall within the scope of Article 351(1) TFEU. Secondly, in his view, the Supreme Court was not able to adequately grasp the internal EU character of the dispute at stake. From the AG’s point of view, the interests at stake were mainly those of two EU Member States (Romania and Sweden) and of some EU-based individuals and companies. No third Country or non-EU citizen appeared to be involved

in the dispute. Third, the Supreme Court misinterpreted and misapplied Article 351(1) TFEU, as this provision aims to protect the rights of third Countries and, to that end, gives preference to prior agreements with these third Countries, when in conflict with Member States’ obligations under EU law.

It is clear that, in order to reach to that conclusion, namely to assess whether the Supreme Court correctly interpreted Article 351 TFEU, the AG was necessarily required to take into account, albeit incidentally, the provisions of the ICSID Convention.

In fact, an interesting issue arising in the present case concerns precisely whether Article 351 TFEU permits the Court of Justice to interpret a provision such as Article 54 of the ICSID Convention. According to AG Emiliou, to assess whether the United Kingdom had breached Article 351 TFEU, ‘the Court must be able to

incidentally interpret clauses of international agreements, even where those agreements are not part of EU law’ (point 92). Paschalis Paschalidis, instead, argues that ‘the Court does not have the power to interpret provisions

of international treaties to which the EU is not a party, let alone offer binding interpretations of such provisions. Rather, as the Court held in Commission v Slovakia, it can at most ‘examine the factors which make it possible to determine’ whether the treaty at issue imposes an obligation which cannot be affected by the TFEU’.

However, an incidenter tantum ruling does not by its very nature involve ‘binding interpretations of such provisions’. It is true that the Court cannot interpret tout court provisions of international conventions to which the EU is not a party, but the Court cannot be denied the possibility of interpreting them incidentally in specific circumstances (in the context of a preliminary ruling procedure, see, for instance, Budějovický Budvar, paras. 134 and 143).

It has been written by Nicolaj Kuplewatzky that this is precisely the reason why the Commission considered it

important to initiate an infringement procedure against the United Kingdom: because it feared that the Supreme Court’s approach, and its case-law, could, in the post-Brexit world, ‘circumvent and undermine the Commission’s

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efforts to ensure the effective implementation of judgments reiterating the primacy of EU law over arbitral awards

in the context of intra-EU investment disputes’ (see European Commission, Sincere cooperation and primacy of

EU law: Commission refers UK to EU Court of Justice over a UK Judgment allowing enforcement of an arbitral award granting illegal State aid, 24/10/2022). Note that, in any case, the Commission’s reasons for initiating or not initiating an infringement procedure are completely irrelevant, as stated by the Court, for instance, in

Commission v Portugal; this principle also applies in this case, regardless of the seriousness of the alleged breaches). After all, this position is also in line with the essence of Achmea, Komstroy, PL Holdings and Commission v European Food case-law: arbitration cannot lead to a circumvention of the judicial architecture of the EU, given the (potentially) dangerous consequences in terms of integrity and stability of the EU (jurisdictional) system. The alleged breaches of Articles 267(3) TFEU and 4(3) TEU The Commission has also put forward a plea based on an alleged infringement of Article 267(3) TFEU. The Commission claims that, by failing to refer a question on the interpretation of Article 351(1) TFEU, a provision

which is not acte eclair or acte éclairé, the Supreme Court breached the obligation imposed on courts of last

instance by Article 267(3) TFEU. Indeed, some concepts of EU law set out in Article 351(1) TFEU that the Supreme Court had to interpret had not been sufficiently examined by the Court of Justice in its past case-law. In

addition, disputes based on Article 351 TFEU and on the ICSID Convention started by the same applicants were

pending not only before the Courts of the European Union, but also before several national courts. That should have made the Supreme Court, at the very least, ‘particularly cautious’ when interpreting concepts of EU law that proved to be particular controversial between the parties (point 172).

In this context, it should be recalled that this is the second case in which the Court is called upon to rule on the breach of Article 267(3) TFEU by a court of last instance. The first such case was the well-known French case of 4 October 2018, which involved the Conseil d’État. In this context, it may be interested to note that, for a long time, the Commission was reluctant to initiate infringement proceedings against Member States whose courts of

last instance appeared unwilling to comply with the obligation in question (see, for instance, Morten Broberg), even though case-law had, since long, clearly confirmed that infringements of EU law could result from conducts of national courts (see, for example, Commission v Italy (C-129/00), and Commission v Spain (C‑154/08)).

Therefore, Commission v United Kingdom is also remarkable in that it is part of a relatively new (and, so far, limited) practice. Moreover, the infringement at stake is, arguably, of particular significance – especially if compared to the

rather technical nature of the infringement resulting from the judgment of the French Council of State – since the Supreme Court had to deal with a provision of primary law, Article 351(1) TFEU, which has a very close relationship with the principle of primacy, of which it constitutes a ‘near open-ended limitation’ (point 175).

Moreover the judgment of the Supreme Court has also given rise to another infringement of a procedural nature, namely the failure to respect the principle of loyal cooperation pursuant to Article 4(3) TEU (note that the breach

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of Article 4(3) TEU is often combined with other regulatory parameters. With regard to cases of infringements

where this provision was the subject of an autonomous and distinct breach see, for instance, Commission v Belgium). At the time of the procedure before the Supreme Court, an action for annulment pursuant to Article 263 TFEU

(the European Food Case) was pending against a Commission’s State aid decision concerning the same measures which were the object of the UK proceedings. In the view of the AG, to comply with the principle of loyal

cooperation the Supreme Court should have suspended its proceedings until the final ruling on the annulment action pending before the EU judges, in order to avoid potentially incompatible decisions.

Although the Supreme Court had stated that ‘(i) it was ‘concerned with potentially contradictory decisions on the same subject matter between the same parties’; (ii) it could not conclude that ‘there [was] scarcely any risk of

conflict’ between those decisions; (iii) had the conflict between different judgments materialised, the consequences thereof would have amounted ‘to a substantial impediment to the operation of EU law’; and (iv) the existence of

a pending appeal before the Court of Justice was, in principle, ‘sufficient to trigger the duty of cooperation’’ (point

68), it has nonetheless decided not to suspend the procedure and thus rule on the merits of the applicants’ claims. Brief concluding remarks This brief and by no means exhaustive reconstruction clearly suggests that this case is complex and multifaceted. AG Emiliou has attempted to deal with these intricate issues in a rather lengthy and detailed Opinion. In the present case, the AG considered it necessary to focus especially on two issues: one of a procedural nature, namely (the test on the standard of proof in default proceedings), and one of a substantive nature, namely the scope of Article 351(1) TFEU.

It will also be interesting to see whether, in the event of an unsatisfactory outcome, the United Kingdom will

decide to ‘re-enter the field’ by contesting the Court’s ruling, or will prefer to remain silent. ‘It ain’t over till the fat lady sings’.

Camilla Burelli, Postdoc research fellow in EU law, University of Milan.

SUGGESTED CITATION: Burelli, C.; “Singing the song of the fat lady: an innovative test on the standard of proof in default proceedings and the scope of Article 351(1) TFEU: the AG Emiliou’s Opinion in Commission v UK (C-516/22)”, EU Law Live, 26/01/2024, https://eulawlive.com/op-ed-singingthe-song-of-the-fat-lady-an-innovative-test-on-the-standard-of-proof-in-default-proceedings-and-the-scope-of-article-3511-tfeu-the-ag-emiliousopinion-in-commissio/

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Charting new constitutional waters: Spain’s General Council of the Judiciary and the Commission’s role as a domestic mediator Guillermo Íñiguez On 26th January 2024, in an unprecedented press release, the European Commission proposed a ‘structured

dialogue’ with the main political parties in Spain. The Commission’s announcement marks the latest episode in a long-standing dispute surrounding the present and future of the General Council of the Judiciary (CGPJ), the

body tasked with the governing the country’s judiciary and which has found itself a five-year deadlock. However, as will be set out below, it also provides important lessons from the point of view of Union law. The present

analysis will proceed as follows. It will first set out the (domestic) legal and political context, before focusing on the Commission’s press release. This will be followed by a discussion addressing two of its implications: the

Commission’s role as a mediator in (hitherto) internal judicial affairs, and the future of domestic constitutional crises in the European Union (EU). It will conclude by exploring what could lie ahead, both for Spain and for the Union.

The domestic background The CGPJ is the body tasked with overseeing the country’s judiciary and with safeguarding its independence. Its functions include overseeing ‘appointments, promotions, and transfers; the inspections of the working of the

Courts and Tribunals and [the] disciplinary accountability of members of the Judicial Career’. As set out in Article 122(3) of the Spanish Constitution, the Council is comprised of 20 members including its president, who also serves as President of the Supreme Court. Of its members, twelve must be judges or senior judges (magistrados)

and eight must comprise ‘lawyers and other jurists of acknowledged competence’. The appointments are made, for a five-year term, by a three-fifths majority of the Congress or the Senate. In practice, the three-fifths requirement means that for the Council to be renewed, an agreement must be struck between the country’s largest political parties: the Spanish Socialist Workers’ Party (PSOE), which currently heads the government, and the Popular Party (PP), which leads the opposition.

The first CGPJ was elected in 1980. For many years, the system functioned relatively seamlessly, with both parties

reaching agreements on the body’s renewal within the period set out in the Constitution. The latest such renewal

took place in 2013, when the PP was in government. However, when the 2018 renewal came up, the Popular Party, which now found itself in opposition, refused to strike a deal. A similar agreement failed in 2022, with the PP arguing that it would only accede to renewing the body if PSOE agreed to a reform of its election system. Since

the Council’s mandate expired in 2018, its members have, as the Commission’s press release sets out, ‘effectively served for two consecutive mandates’. This situation is having significant negative consequences, paralysing judicial

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appointments to its senior courts, including the Supreme Court, and damaging the judiciary’s perception among

the country’s population. It is in this context, and following requests by both the country’s main parties, that the Commission has agreed to step in.

The (non-)renewal of the CGPJ also raises interesting questions from the point of view of Union law. First, it

has led to the Commission adopting a previously unthinkable role in guiding the dialogue between a Member

State’s leading political parties. Second, it highlights the legal and political challenges which this new wave of constitutional crises raises for the Union’s rule of law toolbox. Both issues will be addressed in turn. The Commission’s role as a mediator In its press release, the Commission justifies its intervention in two ways. First, a domestic justification is provided: according to its statement, both political parties have expressed a willingness to engage in negotiations and to

involve the Commission therein. Second, reference is made to Union law: the Commission states that it is ‘ready to play its role to ensure compliance with EU law’, and argues that ‘its work will be based on the recommendations made in its 2022 and 2023 Rule of Law Reports.’ The press release also sets a very clear time limit, stating that the process ‘should not exceed two months.’

Notwithstanding the above, that mere suggestion that the Commission could play a role as a mediator in

parliamentary negotiations concerning the organisation of a Member State’s judiciary would have been unthinkable

only a few years ago. Of course, Union law has played an increasingly active role in domestic judicial affairs, largely

as a result of the Portuguese Judges case law and, in particular, in response to the capture of Poland’s judiciary. However, the Commission’s involvement in the CGPJ’s renewal is far from orthodox. It does not result from an infringement procedure triggered by the Commission, nor does it follow from a Court judgment finding a breach

of Union law [1]. Instead, it derives from a request from a Member State’s main political parties. In other words, instead of constituting a top-down intervention, with the Commission unilaterally stepping in, it constitutes a bottom-up one, with the Member State itself, through its main political parties, choosing to ‘Europeanise’ a

previously purely internal issue. Whether this will prove a one-off instance, or whether it will be seized upon by other Member States, remains to be seen. A new wave of constitutional crises The Commission’s ‘structured dialogue’ also raises questions about the effectiveness – and the future – of the Union’s rule of law toolbox. The crisis surrounding the CGPJ is hard to place in the traditional map of EU democratic backsliding. As Sarmiento and Iglesias have pointed out, ‘the Spanish judiciary’s crisis is not the

result of an authoritarian government with a Eurosceptic agenda, but of an opposition party holding no power

in government.’ This presents obvious challenges for the Commission, which does not traditionally deal with opposition parties and lacks a clear legal mandate to do so. It also raises questions about the effectiveness of its toolbox, a set of legal procedures and remedies primarily at engaging with Member States’ executives.

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However, the Commission – and the Union institutions more broadly – would do well to learn from the Spanish case. As national political systems become more fragmented, domestic parliaments may find themselves

increasingly unable to reach the qualified majorities required to carry out important constitutional procedures

such as the CGPJ’s renewal. Where these procedures affect Union law – for example, due to their impact on Articles 2 or 19 TEU –, the Commission may be tempted to intervene. The above, however, could raise obvious

questions about competence, national autonomy, and democratic legitimacy, questions which will be yet more

delicate in countries with large Eurosceptic parties. Faced with this new wave of domestic constitutional tension, which raises different issues to those witnessed in the 2010-2023 period, Union law would do well to update its existing toolbox. This could involve, for example, placing less of a focus on ex post remedies and affording a greater

relevance to ex ante engagement. It could also involve placing more weight on the recommendations set out in

the Rule of Law Reports, for example by adopting a more proactive role in their implementation and monitoring. What lies ahead? It remains to be seen how successful – if at all – the Commission’s ‘structured dialogue’ will prove, and whether

it will finally lead to the CGPJ’s renewal. Whatever its outcome, however, its implications may be wide-reaching and could spill over into other Member States. If replicated beyond Spain, the Commission’s mediation could

inaugurate a phase in which the latter becomes increasingly active in hitherto ‘purely domestic’ situations, complementing the recommendations contained in its annual Rule of Law Reports by playing a more direct role in their implementation.

Finally, the crisis surrounding the CGPJ also shows the many shades of grey which domestic constitutional crises

can display. On top of the ‘traditional’ crises, which the Union’s legal, political, and economic toolbox has become significantly better at addressing, the Spanish case illustrates that such scenarios can involve non-traditional

actors, such as recalcitrant opposition parties. Coupled with the growing reach of Union law, a new set of issues may arise in the near future. Once the ‘structured dialogue’ has concluded, the Commission would do well in

reviewing, updating, and complementing its toolbox, ensuring that it is better able to capture the complexity of Member States’ constitutional fragmentation.

Guillermo Íñiguez is a DPhil candidate in EU Law at Somerville College, Oxford. (fn 1) Although note that, in its recent ruling in Lorenzo Bragado and Others v. Spain (App nos. 53193/21 et al.), the ECHR found that Spain’s failure to elect the members of the CGPJ had violated the Convention rights of those applicants who had put their names forward and were still awaiting a decision.

SUGGESTED CITATION: Íñiguez, G.; “Charting new constitutional waters: Spain’s General Council of the Judiciary and the Commission’s role as a domestic mediator”, EU Law Live, 30/01//2024, https://eulawlive.com/op-ed-charting-new-constitutional-waters-spains-general-council-of-thejudiciary-and-the-commissions-role-as-a-domestic-mediator-by-guillermo-iniguez/

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The Court of Justice and urgent matters (Case C-431/22 Scuola europea di Varese) Joachim Gruber Introduction The subject of the legal dispute in Case C-431/22 Scuola europea di Varese is a decision of the European School

in Varese not to authorise a pupil to be promoted to the year above. The European Schools are an independent

subject of international law. When the European Coal and Steel Community was established in 1952, the officials of this new institution wished to send their children to a school where they would be educated in their respective

mother tongues. As the competence of the ECSC did not extend to educational tasks, in 1957 the member states

of the ECSC concluded an international treaty, the ‘Statute of the European School’. At first, there was only one school in Luxembourg; over the years, numerous other schools were opened in cities where there were officials of

the EU and its agencies. In 1994, the Statute was revised and adopted under the name ‘Convention defining the Statute of the European Schools’. This convention was ratified not only by all EU Member States but also by the European Community and the European Atomic Energy Community and entered into force in 2002.

Pupils’ legal disputes with their school are characterised by the fact that they are particularly urgent. This

preliminary ruling procedure therefore enables a review of whether the Court of Justice fulfils the requirement of effective judicial protection. The facts The decision not to transfer the plaintiff at the end of the 2019/20 school year was served on him on 25 June

2020. He would therefore have had to repeat a grade in the 2020/21 school year. His parents brought an action

against this decision before an Italian administrative court on 20 July 2020. By order of 9 September 2020, this

court declared that it has jurisdiction to hear that action. Furthermore, it ordered that the pupil be admitted to

the next higher class in the 2020/21 school year and determined that the hearing in the main proceedings would take place on 19 October 2021. Classes at the European School in Varese run from the beginning of September to the beginning of July. Even if the main hearing had taken place on the date originally scheduled, 19 October

2021, the legal situation would not yet have been clarified at the beginning of the 2021/2022 school year. Just over

a year after this decision, and less than a week before the date set for the hearing, namely on 13 October 2021, the European School Varese submitted an application to the Italian Supreme Court of Cassation, which rules on questions of jurisdiction. According to the European School Varese, the Complaints Board of the European

Schools has jurisdiction over the dispute. The Complaints Board is an internal body of the European Schools. In

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accordance with Article 27 of the Statute of the European Schools, it is responsible for disputes concerning the application of the Statute. Its members enjoy judicial independence.

By the decision of 6 June 2022, the Italian Court of Cassation referred to the Court of Justice the question of whether the Complaints Board of the European Schools has sole jurisdiction in disputes concerning the non-

promotion of a pupil. At the same time, it requested that the proceeding be subject to an expedited procedure under Article 105 of the Rules of Procedure of the Court of Justice. This was justified on the grounds that it was necessary to clarify the pupil’s school situation as quickly as possible.

The decision as to which court has jurisdiction was made by the Court of Justice in December 2023, stating

that the Complaints Board has jurisdiction. The Court of Justice’s decision is convincing: the plaintiff relied on older decisions by Italian courts, according to which the Complaints Board does not have jurisdiction for actions

relating to decisions not to move a pupil to the next class. In the meantime, however, the 2014 school regulations came into force. This provides that the Complaints Board of the European Schools has sole jurisdiction for such appeals.

The decision on the expedited procedure Previously, on 21 July 2022, the President of the Court of Justice had decided that the request for an expedited

procedure would not be granted (para. 43). As a decision could have an effect for the 2022/2023 school year at the earliest, even in the event of an expedited decision, there is no exceptional urgency. The simple interest of a litigant in having his legal dispute decided as quickly as possible does not justify the implementation of expedited

proceedings. The reasoning used to reject an expedited procedure does not address the specific facts of the case. The Court of Justice does not discuss the impact of the long duration of the proceedings on the plaintiff. Even if the Complaints Board decides very quickly now, its judgment will have an impact on the 2024/2025 school year at the earliest.

In the case of a conditional promotion, the pupil attends classes in the next grade up at his own risk. If it is established by the court during this school year that the pupil was rightly not promoted, any examinations passed

will have no legal effect. However, if the legal dispute has still not been resolved at the end of this school year, two models are conceivable: If the pupil is promoted to the next class, the non-promotion pronounced a year earlier no longer has any legal effect. He or she is now in a new class just like any other pupil. The legal dispute can be

declared settled. The other possibility is that this promotion to the next grade is also subject to the condition that

the non-promotion pronounced a year earlier proves to be unlawful. Should a court later decide that the non-

promotion was justified, all examinations subsequently passed will be cancelled. In this case, this would mean that the pupil would now have to start again where he was five years ago. He would have wasted four years of his life

due to the long duration of the process (in this constellation, he would have had to repeat one school year in any case).

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The principle of effective judicial protection The principle of effective judicial protection should have been discussed when examining the need for urgency. Art. 47 para. 2 of the Charter of Fundamental Rights of the EU grants a legal right to a hearing within a reasonable time. This provision was modelled on Art. 6 para. 1 ECHR. According to the case law of the European Court of

Human Rights, the entire proceedings are to be understood here, even if they have been conducted over several

instances. If a request for a preliminary ruling was made to the Court of Justice during the proceedings, this

period has to be included in the period under consideration (ECtHR, judgment of 4 February 2010 - 13791/06, para. 78 - Gromzig v. Germany). The reasoning of the President of the Court of Justice does not seem to have

taken into account the consequences outlined above: since a longer period of time had already elapsed before the referral to the Court of Justice, this does not mean that the Court of Justice can now also take its time but has the consequence that the Court of Justice must decide as quickly as possible. Conclusion Several consequences arise from the present proceedings: - The referring courts should explain in detail why, in their opinion, urgency is required and what practical consequences a normal duration of proceedings would have for the parties.

- It would be desirable for the Court of Justice to examine the question of urgency more carefully in future and to

give more detailed reasons for its decisions. Even if a judgement is well reasoned on its merits, it does not fulfil its purpose if a party suffers irreparable disadvantages due to the length of the proceedings.

- In order to emphasise the importance of the principle of effective judicial protection, the rules on the expedited procedure should be laid down in the TFEU and not in the Rules of Procedure of the Court of Justice. The Rules

of Procedure are adopted by the Court of Justice itself. Although they require the approval of the Council (Art. 253 (6) TFEU), this does not give them the democratic legitimisation that laws require.

- The contracting parties should clearly specify in the Statute of the European Schools in which cases the

Complaints Board of the European Schools is competent and in which cases a national court is competent.

Joachim Gruber, D.E.A. (Paris I), is Professor of Business Law at the Westsächsische Hochschule Zwickau (Germany) and was previously a Professor of German Legal Language at the University of Paris Nanterre.

SUGGESTED CITATION: Gruber, J.; “The Court of Justice and urgent matters (Case C-431/22 Scuola europea di Varese)”, EU Law Live, 02/02/2024, https://eulawlive.com/op-ed-the-court-of-justice-and-urgent-matters-case-c-431-22-scuola-europea-di-varese-by-joachim-gruber/

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Public service compensation – the trees do not grow into the sky (C-421/22 DOBELES AUTOBUSU PARKS) Grith Skovgaard Ølykke Introduction DOBELES AUTOBUSU PARKS (link to French language version, as currently, no English version is available)

concerns the interpretation of Regulation 1370/2007 (unless otherwise stated, reference is made to the consolidated

version after amendment by Regulation 2016/2338) on public passenger transport services by rail and by road. Regulation 1370/2007 is lex specialis to the public procurement rules and the State aid rules, as it regulates the imposing of public service obligations for passenger transport by rail and road by award of certain public contracts and concession contracts, or by generally applicable rules, and stipulates how compensation may be granted for public service obligations imposed on transport undertakings providing such services.

The judgment in DOBELES AUTOBUSU PARKS follows up on C-614/20 Lux Express Estonia, where the Court

of Justice – surprisingly to some – held that Regulation 1370/2007 imposes an obligation on public authorities

to pay compensation for public service obligations they impose by generally applicable rules on undertakings in the passenger transport sector, subject to explicit exemptions in Regulation 1370/2007. This conclusion by the Court of Justice required elaborate interpretative efforts (para. 51-75). In DOBELES AUTOBUSU PARKS, the

Court of Justice put its foot down and clarified that when public service obligations are imposed by contract – in

casu a contract for service of bus routes in Latvia – which is awarded after the conduct of a public procurement procedure, the contracting authority is not obliged to include a clause in the contract that compensates the winning tenderer for all future increases in costs of providing the service. Background The case concerns the tender terms for a 10-year contract for passenger transport by bus in Latvia. The tender was an open procedure, and several economic operators (at that point in time potential tenderers) challenged the

tender terms claiming that they did not afford them protection against any potential increase in certain costs (hereunder, fuel, wages and social security contributions) over the course of the contract’s duration. The tendered

contract did contain some clauses for revision/indexing of certain cost and price elements; the claim of the

applicants was that the clauses were insufficient. The dispute could be viewed as a reaction to the COVID-crisis, the energy-crisis and the Russian invasion of Ukraine which together lead to unprecedented increase in costs in a short time-span. Such cost increases were – from the point of view of economic operators – not sufficiently

foreseen in existing public contracts, to the detriment of the financial situation of providers of goods or services to the public sector subject to such contracts. This has led to a general discussion about distribution of risk in public

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contracts for increases in costs that are outside the control of the winning tenderer and the contracting authority. In essence, the dispute, and thus the question referred by the Latvian Supreme Court, was whether a compensation model in a tendered contract for public services is compatible with Regulation 1370/2007 when it does not fully compensate the winning tenderer for all future increases in costs of operating the service that are outside the

tenderer’s control (in its question, the referring court mentioned Articles 1(1) (compensation for ‘costs incurred’), 2a(2) (compensation should ‘financially sustain’ provision of the services), and 3(2) (not relevant to the case) of Regulation 1370/2007). Judgment The Court of Justice started off by considering the wording of Article 4(1) of Regulation 1370/2007 concerning compensation for public service obligations, which is applicable irrespective of whether such obligations have been imposed by contract or by general rules. In short, the relevant parts of this provision require that public service

contracts and general rules shall establish in advance, in an objective and transparent manner, the parameters

on the basis of which the compensation payment is to be calculated and determine the arrangements for the allocation of costs connected with the provision of services. The Court of Justice found that it clearly follows already from the wording of this provision that the contracting authorities have discretion to determine the

model for compensation. In particular, the Court of Justice pointed out that the right for contracting authorities to allocate costs entails that they can decide on the allocation of risk related to such costs (para. 43).

The Court of Justice then determined that the purpose of Regulation 1370/2007 is to lay down the conditions

for granting of public service compensation to ensure provision of public passenger transport that is efficient and financially sustainable with a view to achieve a high quality of the services. Derived from this objective, the Court

of Justice found that the model for compensation should not only avoid overcompensation but should also ensure efficiency in the provision of services. According to the Court of Justice, a compensation model that covers all increases in costs does not give incentive to ensure efficiency, whereas that may be the case for a model that does not cover all increases in costs (para. 46-47).

Next, the Court of Justice referred to the context of Article 4(1) of Regulation 1370/2007 and pointed out that compensation determined on the basis of a public procurement procedure is not regulated in any detail

in Regulation 1370/2007 – contrary to what is the case for directly awarded contracts or when public service obligations are imposed according to general rules. The Court of Justice held that this lack of detail is based on

the logic that compensation determined on the basis of a competitive public procurement procedure will ensure

that overcompensation is avoided, but also that the compensation is not too low. In other words, the public procurement procedure will result in the market price based on an efficient provider’s costs, assessment of risks and willingness to take risks (para. 48-50).

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The applicant pointed to two potential consequences of the compensation model: that the development in the

market could lead to unsustainable financial consequences for the winning tenderer or reduce the quality of the service, and that the number of (potential) tenderers could be artificially narrowed down (because the contract was unattractive). These arguments were dismissed by the Court of Justice.

Regarding the financial consequences for the winning tenderer, the Court of Justice mentioned that the risk of the tenderers submitting tenders that do not cover the future costs is inherent in all public procurement procedures

and pointed out that the provision on abnormally low tenders makes it possible for contracting authorities to reject tenders that have been verified to be abnormally low. However, this does not entail that contracts must

always contain a clause automatically ensuring that all future increases in costs of providing the service, which are outside the control of the winning tenderer, are covered by the contracting authority.

Regarding the narrowing down of number of tenderers, the Court of Justice held that the terms for providing

public service obligations must comply with the principle of proportionality and thus cannot be unreasonable. However, it pointed out – referring to the fact that no economic operators are obliged to tender for public

contracts – that if tender terms are unreasonable, probably, no tenderers will submit a tender. Then, the Court of Justice mentioned that in the case at hand, the contracting authority had received around 100 tenders form tenderers in different Member States, and, thus, there was nothing indicating that the terms were unreasonable. Comment Regulation 1370/2007 only applies to contracts for passenger bus transport if such contracts are service concession

contracts (Art. 5(1)). If the contract is a public service contract, the relevant public procurement directive applies, i.e., Directive 2014/24 or Directive 2014/25, with regard to the procedure for the award of the contract, but other matters continue to be regulated by Regulation 1370/2007. Some case-law concerning Regulation 1370/2007 has

concerned exactly the relation between this Regulation and the public procurement directives; see e.g. C-292/15,

Hörmann Reisen; C-518/17, Rudigier; C-266-267/17, Verkehrsbetrieb Hüttebräucker and BVR Busverkehr Rheinland. Under Regulation 1370/2007, the definition of a service concession contract in Article 5(1)(b) of Directive

2014/23 applies, see Commission Guidelines on Regulation 1370/2007, Sc. 2.1.1). This definition requires a transfer of operating risk to the concessionaire entailing that the concessionaire must have a real exposure to the vagaries of the market.

In DOBELES AUTOBUSU PARKS, the tender terms required the tenderers to submit a fixed price for the

services, that is, the revenue from sale of tickets to passengers would be deducted from the payment to be made by

the contracting authority. However, as evident by the dispute, some risk was transferred to the winning tenderer. In this context it may be noted that the tender concerned the right (“du droit”/”des Rechts”) to provide bus

transport on the relevant routes (para. 18), which, together with the obligation to provide certain public service obligations, indicates that the contract could be a concession; however, this denomination cannot be decisive for the assessment of the nature of the contract.

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The question of whether the contract was a service contract or a service concession contract was very briefly

mentioned by AG Campos Sánchez-Bordona. He reported that the applicant, the contracting authority and the Latvian government all found the contract to be a public service contract (cf. points 24-25 of the Opinion). The AG merely pointed out that the assessment of whether the contract was a public service contract or a service

concession contract was a matter for the national court, which in its assessment had to take into account the transfer of risk. The Court of Justice did not at all consider this matter.

Grith Skovgaard Ølykke, PhD, is a Senior Researcher at Department of Economics, Management and Leadership of the Belgian Royal Military Academy/Department of Applied Economics and the Brussels Centre for Competition Policy of Vrije Universiteit Brussels. She is an external lecturer at Copenhagen Business School and is on the editorial board of Public Procurement Law Review. Grith is currently on leave from her position as Commercial Law Consultant at a major Danish Law Firm.

SUGGESTED CITATION: Skovgaard , G; “Public service compensation – the trees do not grow into the sky (C-421/22 DOBELES AUTOBUSU PARKS)”, EU Law Live, 29/01/2024, https://eulawlive.com/op-ed-public-service-compensation-the-trees-do-not-grow-into-the-sky-c-421-22-dobelesautobusu-parks-by-grith-skovgaard-olykke/

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The contracting authority’s duty to state reasons in case of abnormally low tenders in the context of EU institutions’ procurement procedures Silvio Battista What are the conditions which trigger the contracting authority’s duty to state reasons in case of abnormally low nature of the successful tender and what is the scope of such an obligation? This and other questions were

answered by the Court of Justice in appeal proceedings lodged by the EU Commission in Commission v Sopra Steria Benelux and Unisys Belgium, C-101/22. Background With its appeal the Commission sought to overturn the judgment by which the General Court annulled its

decision to reject a joint tender submitted by a consortium in the context of a tendering procedure launched for

the procurement of IT services with the best quality-price ratio of 70:30. Specifically, the consortium was informed by the Commission that its tender had been rejected because it was not the most economically advantageous one and that the contract had been awarded to another tenderer. Upon written request the Commission informed

the consortium of the name of the successful tenderer and the total score received by the latter, bringing out a

difference of 8 points due to the price offered. The consortium contested the results of the procedure by expressing

doubts that a price much lower than the price it proposed and considered ‘reasonable and in line with market

conditions’ could be viable without risk of ‘social dumping’ and associated risks for the continuity of services. Furthermore, the consortium invited the contracting authority to confirm that it had carried out appropriate investigations.

The Commission replied by merely claiming that a detailed financial analysis of the selected bid had found it to be in line with the market conditions in the countries from which the contractors and their subcontractors would have performed the requested services. The consortium thereupon brought an action for annulment of the

rejection decision by alleging, inter alia, failure to state reasons with regard to the abnormally low nature of the successful tender. Legal context Article 170(2) of the so called Financial Regulation’ 2018/1046 stipulates that: ‘The contracting authority shall notify all candidates or tenderers, whose requests to participate or tenders are rejected, of the grounds on which

the decision was taken, as well as the duration of the stand still periods referred to in Articles 175(2) and 178(1)’.

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It further provides that, on written request, the contracting authority shall inform each tenderer of the name of the successful tenderer, the characteristics and relative advantages of its tender, the price paid or contract value (see paragraph 3). The rationale behind these provisions is to protect all unsuccessful tenderers from arbitrariness

of the contracting authority and ensure healthy competition (see also Lombardini and Mantovani, C‑285/99 and C‑286/99, paras. 44 and 57).

Article 170(3) must be read in conjunction with paragraph 23 of Annex I to that regulation (entitled ‘Abnormally

low tenders’) which states that, if the price or costs proposed in the tender appear to be abnormally low, the contracting authority is to request in writing details of the constituent elements of the price or costs which it

considers relevant and give the tenderer the opportunity to submit its observations with reference to the elements

specified in that paragraph (including the economics of the manufacturing process, the technical solutions chosen, the exceptionally favourable conditions available to the tenderer; compliance with environmental, social and labour law obligations; the possibility of obtaining State aid).

Paragraph 23 also states that contracting authority shall reject the tender only where the evidence supplied does not satisfactorily account for the low price or costs proposed or where it has established that it does not comply with the above-mentioned obligations.

Therefore, the assessment of the existence of abnormally low tenders is articulated in two possible stages: 1. firstly, the contracting authority determines prima facie whether the price or costs proposed in the tender

‘appear’ to be abnormally low. That summary review is for internal use only. In the absence of appropriate evidence to raise suspicions, the contracting authority continues its evaluation and award the contract. This means that it implicitly deemed that that there was no evidence;

2. if instead such evidence exists, then it must analytically check the constituent elements of the tender, by

giving the tenderer the opportunity to submit its observations. Consequently, it must assess the explanations provided and determine whether the tender concerned is abnormally low, in which case it must be rejected.

In this respect, the General Court noted that, according to Article 170(3) of the Regulation, an explicit and

detailed reasoning must be disclosed if the unsuccessful tenderer makes an express request (providing important information regarding the characteristics and relative advantages of the successful tender) even where the successful tender does not appear to be abnormally low (see para. 13).

The judgment under appeal and the findings of the Court of Justice By upholding the plea on the lack of motivation, the General Court held that it is not sufficient for the contracting

authority to apodictically state that the selected tender is not abnormally low. The Commission should at the very least have provided information relating to the share of the contract that would be performed under a

subcontracting arrangement and the countries from which the services in question would be performed. It is only

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in this way that the consortium would have been better able to understand the reasons for the price difference with

its tender and, therefore, challenge the merits of the assessment. Morevover, the reasoning cannot, in principle, be explained for the first time and a posteriori before the court.

With its appeal against the first decision the Commission put forward three grounds of appeal: • error in law in classifying the consortium’s request as an ‘express request’ (seeking to obtain the statement of reasons for which the successful tender does not appear to be abnormally low); • misrepresentation of the content of its reply; • error in law as regards the scope of the contracting authority’s obligation under Article 296 TFEU and Article 170(3) of the Financial Regulation.

To corroborate the first ground of appeal, the Commission invoked the General Court’s judgment in case European

Dynamics Luxembourg and Others v European Union Agency for Railways (T‑392/15), where the GC required an

‘express request’ by the unsuccessful tenderer (i.e., a request which expressly claims that the selected tender is abnormally low). According to the EU Commission, that condition was not satisfied, because the consortium

simply indicated the potential consequences of an abnormally low tender. The European executive further recalled

that, according to the GC, the contracting authority shall stick to follow a literal interpretation of the request, without engaging in a teleological interpretation thereof (see judgment in European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑752/15, paras. 78 to 81).

In endorsing the ruling of the GC, the Court of Justice stated that an unsuccessful tenderer may make use of the option available under Article 170(3) to invite the contracting authority to expressly justify its decision not to

consider the successful tender abnormally low. To this end, it does not appear indispensable an express reference to that concept (see paras. 49 and 52). Nevertheless, the unsuccessful tenderer’s request must be formulated in such a way that it leaves no doubt (see para. 53).

The Court of Justice then confirmed that the consortium’s request was expressed. In examining the third ground of appeal, the Court of Justice observed that the wording of paragraph 23.1 of Annex I does not rule out the

possibility that doubts as to the abnormally low nature of the successful tender may have been raised in a substantiated manner by an unsuccessful tenderer, thus causing the contracting authority to enter the second

stage of the assessment above-mentioned and inform it of the outcome (see paras. 81 and 82). In the Court of Justice’s view, a different interpretation would deprive the unsuccessful tenderer of its right to an effective remedy

guaranteed by Article 47 of the Charter, making it impossible to assess the merits of the decision (see para. 83). Particularly, this is the case when the price of the successful tender was the only advantage characterising it.

Then the Court of Justice added that, save in exceptional circumstances – which were not present in this case –, the inadequacy of the initial statement of reasons cannot be remedied in the course of the proceedings (see Michel

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v Parliament, 195/80, para. 22; Dansk Rørindustri and Others v Commission, in Joined Cases C‑189/02 P, C‑202/02

P, C‑205/02 P to C‑208/02 P and C‑213/02 P, para. 463 and Commission v Di Bernardo, C‑114/19 P, para. 51). This would equally affect the right enshrined in Article 47 of the Charter.

Conclusively, as for the second ground of appeal, the Court of Justice confirmed that the consortium request represented an ‘express request’ as to the abnormally low nature of the successful tender with the subsequent Commission’s duty to provide specific reasons. In light of the above, the Court of Justice decided to dismiss the

appeal and ordered the EU Commission to pay the legal costs of the proceedings, as requested by the defendant.

Silvio Battista is a self-employed Italian lawyer specialising in administrative law and EU funding. He provides advice and assistance to public entities in the preparation of procurement procedures and economic operators which intend to participate in tenders both at national and EU level. He graduated with honours at the University of Bologna School of Law where he obtained also an LLM in tax law.

SUGGESTED CITATION: Battista, S.; “The contracting authority’s duty to state reasons in case of abnormally low tenders in the context of EU institutions’ procurement procedures”, EU Law Live, 31/01/2024, https://eulawlive.com/analysis-the-contracting-authoritys-duty-to-state-reasons-incase-of-abnormally-low-tenders-in-the-context-of-eu-institutions-procurement-procedures-by-silvio-battista/

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General Court finds that the SRB failed to fulfil its duty to state reasons as regards the calculation of the annual target level for the 2021 ex-ante contributions to the SRF Barbora Budinská In judgments published on 20 December 2023, the General Court annulled the decision of the Single Resolution Board (‘SRB’) on the calculation of the 2021 ex-ante contributions (also ‘contributions’) to the Single Resolution

Fund (‘Fund’) to the extent it applied to a German bank (Landesbank Baden-Württemberg, T-389/21) and several

French banks (Banque Postale, T-383/21; Confédération nationale du Crédit mutuel and Others, T-384/21; BPCE and Others, T-385/21; Société Générale and Others, T-387/21; Crédit agricole and Others, T-388/21 and BNP

Paribas, T-397/21). The General Court found, in essence, that the SRB infringed its obligation to state reasons, as

the methodology it said to have used to calculate the annual target level differed from the methodology it applied. The Fund The Fund forms part of the Single Resolution Mechanism (SRM), the second pillar of the Banking Union. The SRM is responsible for the effective management of bank failures and minimising the costs to taxpayers and the real economy (bank resolution). The Fund is owned and administered by the SRB, a Union agency at

the helm of the SRM, and serves the purpose of funding the resolution actions. It is financed by the banking

sector itself, primarily through annual ex-ante contributions whose amount is calculated by the SRB on the basis of the relevant provisions of Regulation 806/2014, Directive 2014/59, Delegated Regulation 2015/63 and Implementing Regulation 2015/81. Litigation before Union courts The SRB’s decision-making regarding the contributions has been subject to considerable judicial scrutiny. Credit

institutions from different Member States have challenged the SRB’s decisions almost every year since the collection of contributions started in 2016. The most salient arguments raised by the applicants in what seems to be by now more than 130 individual challenges pertain to, inter alia, the calculation methods of the SRB, the

disclosure of data, and the reasons relied on for the determination of the individual contributions (for analyses of closed cases, see, for instance, Wissink 2020, Meijer Timmerman Thijssen (2021), Brescia Morra & Della Negra

(2021), and Wissink 2021). Thus, the rulings of 20 December should be seen as constituting only one (important) piece of the puzzle.

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The judgments of 20 December The SRB’s decision on the calculation of the 2021 contributions consists of a body – applicable to all institutions

under the obligation to contribute – and three annexes. The body describes, among other things, the calculation

methodology, while the annexes contain, inter alia, lists of the individual amounts each credit institution must pay. The applicants brought forward several pleas, including pleas of illegality of certain provisions of the applicable legal framework, pleas relating to the legality of the SRB’s decision, and Landesbank Baden-Württemberg also

brought pleas on the infringement of several Charter provisions. The General Court rejected most of them. It only upheld the pleas alleging the failure to state reasons concerning the calculation of the annual target level.

The annual target level is one of the factors relevant for calculating the individual contributions (see also Articles

69 and 70 Regulation 806/2014). It is the total amount of contributions to be collected in a particular year. The

SRB must calculate it according to the methodology laid down in Article 4(2) Delegated Regulation 2015/63

and Article 4 Implementing Regulation 2015/81. The total amount of the annual target level is distributed among the institutions. Thus, an increase or decrease in that amount leads to a corresponding increase or decrease in the contribution of each institution (Banque Postale, T-383/21, paras. 298–299).

The General Court conducted a detailed examination of the calculation methods presented by the SRB. It

compared the methodology provided in the contested decision with the methodology submitted by the SRB

during the hearing. It concluded that those methodologies differ and that the one presented at the hearing was

the one the SRB used to calculate the annual target level (see judgments concerning the French institutions,

including Banque Postale, T-383/21, paras. 292, 278–306; and Landesbank Baden-Württemberg, T-389/21, paras. 314–340).

In light of that, the General Court stressed that the statement of reasons must be free of contradictions to allow

the concerned persons to ascertain the reasons for the decision and enable the competent court to review it. Where the author of a decision provides explanations for that decision during proceedings before the Union courts, those explanations must be consistent with those laid down in that decision. Otherwise, the statement of reasons does not fulfil its purpose (Banque Postale, T-383/21, paras. 295–297).

The French banks also brought a plea alleging the infringement of the principles of good administration and effective judicial protection. The General Court apodictically stated that the infringement of the duty to state

reasons as regards the determination of the annual target level constitutes an infringement of the principles of sound administration and effective judicial protection (Banque Postale, T-383/21, para. 313).

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Conclusion The judgments should be read, in particular, in conjunction with the Court’s judgment in Commission v Landesbank

Baden-Württemberg and SRB (C-584/20 P and C-621/20 P) on the calculation of the 2017 ex-ante contributions. There, the Court laid down the foundations for understanding the scope of the duty to state reasons concerning the SRB’s decisions. Specifically, the Court emphasised the importance of balancing the obligation to state reasons

and the principle of the protection of business secrets. The present judgments build on this foundation further as they stress the significance of consistency in relation to the obligation to state reasons. The importance of consistent reasoning is underscored by the fact that, notwithstanding the temporal limitation of the effects of the

judgment, the General Court annulled the SRB’s decision despite not finding any error vitiating its substantive legality.

Barbora Budinská is a PhD candidate at Leiden Law School’s Europa Institute and a member of the Young Researchers Group of the European Banking Institute.

SUGGESTED CITATION: Budinská , B.; “General Court finds that the SRB failed to fulfil its duty to state reasons as regards the calculation of the annual target level for the 2021 ex-ante contributions to the SRF”, EU Law Live, 01/02/2024, https://eulawlive.com/analysis-general-court-finds-thatthe-srb-failed-to-fulfil-its-duty-to-state-reasons-as-regards-the-calculation-of-the-annual-target-level-for-the-2021-ex-ante-contributions-to-the-srf/

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A Broad Concept of ‘Controller’ under the GDPR: but Blurred Responsibilities? (Case C-231/22 État Belge (Données traitées par un journal official) Lisette Mustert On the 11th of January 2024, the Court of Justice of the European Union delivered its judgment in case C-231/22

État Belge (Données traitées par un journal official), in which it clarified the concept of ‘controller’ under the General Data Protection Regulation (GDPR) and, subsequently, the responsibilities of such controllers. Background The question on the notion of ‘controller’ arose in a dispute between the Belgian State and the Belgian national Data Protection Authority (DPA), following a decision of this DPA in which it considered the managing authority of the Moniteur belge (the Belgian official journal) to be a controller. As a consequence, this authority has to respect the rights of data subjects as laid down in the GDPR. One of such rights being the right to erasure of personal data contained in a document published in the official journal. The Belgian state contests the DPA’s conclusion

and argues that the managing authority (SPF Justice) cannot be considered to be a ‘controller’ under the GDPR. Faced with this dispute, the Court of Appeal of Brussels stayed the proceedings and referred two questions to

the Court of Justice on the interpretation of Articles 4(7) and 5(2) of the GDPR – i.e., questions on respectively the interpretation of the notion of ‘controller’ and the allocation of responsibilities where personal data has been processed by several controllers. The judgment 1. The concept of ‘controller’ The Court held that the authority tasked with managing the Belgian official journal is a controller in accordance with Article 4(7) of the GDPR. While this authority does not determine the purposes and means of the processing

of personal data by itself, and Belgian law does not explicitly ground controllership of this authority, the law

implicitly designates the authority as the controller (para. 34). This is the case where it is apparent from the role, tasks and powers conferred on that authority that it determines the purposes and means of the processing in

question (para. 30). The fact that the authority has no legal personality, and that it must record, store and publish

the document in question as it stands, does not have any bearing on the question of controllership (para. 37). Instead, the law implicitly determined that publishing existing acts and documents – without any possibility of checking or amending their content – is intrinsically linked to the purposes and means of processing by the authority managing the official journal, in order to make them enforceable against third parties.

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Hence, the Court adhered to its purposive broad definition of the notion of a controller as developed in pervious

case law (see e.g., Google Spain (C-131/12) and Wirtschaftsakademie Schleswig-Holstein (C-210/16)). In doing so, the Court engaged in a literal, contextual, and teleological interpretation of Article 4(7), emphasising the need for the effective and complete protection of data subjects (para. 28). This is in line with Advocate-General Medina’s

considerations regarding the importance of identifying a controller at every stage of the processing operation, which shall respect the duties and rights as laid down in the GDPR (see A-G Opinion in C-231/22, point 38 and Lynskey 2015).

2. Responsibility for compliance with the GDPR’s principles By its second question, the Court answered the question whether Article 5(2) of the GDPR provides that a national authority responsible for the Official Journal is, as a controller, solely responsible for compliance with the

principles set out in Article 5(1) of the GDPR, or whether this responsibility is shared with other entities which previously processed the personal data contained in the documents published in the official journal.

The Court of Justice finds that the authority managing the official journal is solely responsible for compliance

with the GDPR’s principles ‘as regard the processing that it is required to perform under national law’ (para. 43). While this intends to offer effective and complete protection to data subjects, it also means that where steps in the

processing chain are performed by different controllers in accordance with national law, a data subject will have to turn to different controllers when it wishes to exercise her or his rights. Meaning that potential supervision by an independent supervisory authority in accordance with Article 51(1) of the GDPR will be fragmented too.

On the other hand, where national law establishes directly or indirectly that the chain of processing operations performed by different entities gives rise to joint controllership, the responsibility for compliance with the GDPR shall be shared. Although this is for the referring court to determine (paras. 49-51), Advocate General Medina

provided valuable insights as to why the situation at hand does not constitute a situation of joint controllership (see A-G Opinion in C-231/22, points. 82-87). Conclusion The Court of Justice has, once again, confirmed a broad interpretation of the notion of controller under the

GDPR. This is supposed to guarantee effective and complete protection of data subjects since controllership is intrinsically connected to the GDPR’s duties and rights. The Court’s confirmation of controllership of the

managing authority of the official journal, hence, offers not only transparency but also legal certainty to the public. In a processing chain, however, controllers are only solely responsible for the processing that it is required to

perform under national law, meaning that data subjects will have to tour controllers for effectively exercising their

rights. This requires from data subjects to be aware of which controller is responsible for which processing activity

in the processing chain – which may be difficult to discover where this is only implicitly determined by law.

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Hence, while the broad notion of a ‘controller’ is broadly established to effectively protect individuals, uncertainty regarding the division of responsibilities among controllers may nevertheless be detrimental to the protection of data subjects’ rights.

Lisette Mustert is an Assistant Professor of Administrative Law at Utrecht University. She holds a PhD from the University of Luxembourg, where she defended her dissertation on enforcement and accountability challenges in the composite system of GDPR enforcement. She has published contributions on administrative enforcement of EU law – particularly in the area of data protection – and the protection of procedural rights of individuals within such procedures.

SUGGESTED CITATION: Mustert, L.; “A Broad Concept of ‘Controller’ under the GDPR: but Blurred Responsibilities? (Case C-231/22 État Belge (Données traitées par un journal official)”, EU Law Live, 01/02/2024, https://eulawlive.com/analysis-a-broad-concept-of-controller-under-the-gdpr-butblurred-responsibilities-case-c-231-22-etat-belge-donnees-traitees-par-un-journal-official-by-liset/

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SYMPOSIUM COMPETITION CORNER: COMPETITION LAW AND SPORT

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Agent Fees, Player Transfers, and Transnational Leagues: What Lies Ahead for EU Football Law? Guillermo Íñiguez On 21 December 2023, the Court of Justice handed down three landmark judgments on the interaction between EU law and sport. European Super League Company (“ESLC”, C-333/21), International Skating Union (C-124/21 P) and Royal Antwerp FC (“RA”, C-680/21) (“the December judgments”) all raise issues of competition, internal

market, and even constitutional law, many of which have been analysed by other contributors to this symposium.

The present Op-Ed will therefore adopt a somewhat different angle. Instead of discussing the rulings in themselves, it will explore how some of their key findings may shape three pending cases: RRC Sports, Diarra, and Hesperange.

In doing so, it will seek to understand what lies ahead for EU football (and sport) law. RRC Sports: Can FIFA cap agents’ fees?

On 26 May 2023, the Court of Justice received a request for a preliminary ruling from the Regional Court in Mainz (Germany). RRC Sports GmbH, a German company providing football agent services, challenged FIFA’s Football Agent Regulations (“FFAR”). Among others, the Regulations introduce a cap on the fees which agents

can charge for their services; subject to some exception, they also prevent agents from representing the player, the buying club, and the selling club in the same commercial transaction. In its request, the referring court queries whether these rules breach Articles 101 and 102 TFEU, Article 56 TFEU, and Article 6 of the GDPR.

In a sense, RRC Sports (C-209/23) is the most straightforward of the cases pending before the Court of Justice. The key question is how, if at all, sport-related considerations will feature in the Court’s analysis of the FFAR. In December 2023, in a circular announcing that it was suspending the FFAR’s application following a preliminary

injunction from a court in Dortmund, FIFA claimed that its rules constitute ‘a necessary, proportionate and fully

legal regulatory step to address systemic failures within the international transfer system.’ Previously, it had argued

that these rules serve the objectives of ‘reinforcing contractual stability, protecting the integrity of the transfer system and achieving greater financial transparency’.

For the purposes of this dispute, two main lessons can be gleaned from the December judgments. On the one

hand, and in accordance with settled case law, there is nothing inherently unlawful about football governing bodies restricting EU competition law provided that such restrictions can be justified under Articles 101(3) or 102 TFEU. Nor will the internal market provisions be breached provided that such restrictions constitute a

proportionate means to a legitimate end. Therefore, and building on the above, the mere fact that FIFA introduces

rules limiting the fees which agents can charge for their services cannot in itself be deemed a violation of Union law.

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More interesting, however, is whether the Court of Justice will choose to apply football’s ‘specific characteristics’

to the litigation before it. Will the dispute be stripped of its football context, instead being reduced to a ‘pure’ competition (or internal market)-related one? Conversely, if this dimension does feature in the Court’s analysis, which of the aforementioned characteristics will be drawn on, and how will the competing considerations at stake – such as the need to ensure a fair and transparent market and agents’ freedom to provide their services across

the internal market – be balanced? Although it may not break new ground, RRC Sports could provide another

example of how football-related reasoning can shape the Court’s analysis of the TFEU’s competition and internal market provisions.

Diarra: a new Bosman? More consequential – and perhaps most interesting – is the Diarra case (also known as the Charleroi case), a longstanding dispute which could reach the CJEU following a preliminary reference from a Belgian court.

Diarra concerns the rules on the International Transfer Certificate (“ITC”), a document which players registered

at one national football association must obtain before being able to register with another football association. According to the FIFA rules, national associations are not to issue an ITC if the player in question is engaged

in a contractual dispute with a former club. In the dispute giving rise to the main proceedings, Lassana Diarra, a French professional football player, was not allowed to sign with Sporting Charleroi, a Belgian football club: according to both FIFA and the Belgian football federation (“URBSFA”), the player could not be issued an ITC because a contractual dispute with Lokomotiv Moscow, a previous employer of his, was still pending before FIFA’s Dispute Resolution Chamber.

The applicants challenge FIFA’s regulations on the transfer of players on two grounds: first, they constitute anticompetitive agreements in breach of Article 101 TFEU; second, they violate Article 45 TFEU by restricting the free movement of players. Conversely, FIFA argues that the ITC – and its underlying rules – comply with

Union law, and that in analysing their legality, account must be taken of the specific characteristics of sport. Following Royal Antwerp, however, it is unlikely that this lex specialis argument will suffice to convince the Court

of Justice: if the latter has shown itself open to striking down the ‘home-grown player’ rules, a set of regulations which were arguably less restrictive than the ITC, it is hard to see how the latter could survive its scrutiny

In any case, FIFA will have to clear three hurdles in order to do so. First, it will have to find a legitimate objective in the public interest: such an objective which is by no means intuitive on the facts. Second, it will have to demonstrate that its rules are ‘suitable for ensuring, in a consistent and systematic manner, the attainment of

[that] objective’ (RA, para 151). Finally, it will have to prove that its restrictions ‘do not go beyond what is necessary to achieve that objective’ (RA, para 151). If it fails to do so, and if the transfer rules came under judicial scrutiny, European football could witness a new Bosman moment.

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Hesperange: National partitions and the status of football fans In the third possible pending case, FC Swift Hesperange, a Luxembourg-based football club, brought legal

proceedings against UEFA and the Luxembourg Football Federation (“FLF”), arguing that several of its rules are anticompetitive and restrict the free movement of both workers and capital. For present purposes, and beyond

the competition and free movement disputes, Hesperange raises two novel issues. On the one hand, the applicants challenge the territorial model upon which European football rests. Among others, they claim that the UEFA-

FLF rules, which ‘divid[e] up the EU territory on the basis of national borders’, have a negative impact upon clubs’ economic growth by, among others, ‘prohibiting clubs from creating and running transnational competitions’ (for

example, by impeding the creation of a Benelux league). UEFA’s authorisation rules for cross-border competitions

are depicted by the applicants as a ‘territorial lock-in’, which ‘harms smaller clubs in smaller countries’ and which

‘reflects UEFA’s unwavering desire to maintain a total monopoly on transnational and pan-European competitions’. Despite its apparent similarity to ESLC, the emphasis in Hesperange is not on the manner in which breakaway

competitions are authorised by UEFA, but on the national territorial division which (allegedly) prevents the

creation of transnational competitions within UEFA’s ecosystem. The December judgments provide little indication of how this territorial dimension is to be analysed. In Royal Antwerp, the fact that football ‘gives

rise to the organisation of numerous competitions at both European and national levels’ is listed as one the ‘specific characteristics’ of football (RA, para 105). Conversely, the role of national football associations in the market for the organisation of interclub football competitions, and the potentially detrimental impact this can

have on competition law, is highlighted by the Court of Justice when addressing Article 102 TFEU in the Superleague judgment (ESLC, para 149). If the dispute reaches the Court of Justice, the latter will have to decide

(i) whether the national partition of European football constitutes a violation of EU law; (ii) whether this national

organisation of football competition constitutes a ‘specific characteristic’ of football; and (iii) whether the latter can justify a potential breach.

No less interesting is the question, raised by the applicants, of whether football fans can be classified as ‘consumers’ under Union law. If entertained by the Court, this seemingly innocuous claim could have major repercussions: for example, by allowing follow-on actions for damages to be brought against UEFA or FIFA if a court were to find an infringement of EU competition law. Once again, the December judgments provide some indications on this

matter. In Royal Antwerp, the Court of Justice notes (in the context of interpreting Article 101(3) TFEU) that ‘in the present case, the ‘users’ [of football] include, first and foremost, professional football clubs and the players themselves. Added to that, more broadly, are the final ‘consumers’ who are, in the economic sense of the term, the

spectators or television viewers.’ However, the question of whether football fans can be classified as ‘consumers’ – in the technical, EU law sense – has not been expressly addressed so far. A preliminary reference in Hesperange could therefore expose football to a whole new area of Union law.

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Conclusio Instead of closing the floodgates, the December judgments may have flung them wide open. The ESLC judgment,

which will return to the referring court for a final determination, is likely to be embroiled in several more years’ worth of legal battles, potentially making its way back to the Court of Justice at a subsequent appellate stage. The Court’s judgment could also constitute a bargaining chip in the broader negotiation – on the season calendar, TV rights, and new tournaments – which football’s numerous stakeholders will have to conduct in the coming years.

Beyond the Superleague, however, the pending cases discussed in this Op-Ed will continue to shape the future

of EU sports law. The most imminent one, RRC Sports, has already reached the Court of Justice; others, such as Diarra or Hesperange, could do so in the next few years. All of them could provide Bosman-like moments, radically

reshaping how EU law interacts with as powerful a global industry as football. For the time being, therefore, football is likely to prove a fertile ground for both EU law academics and practitioners.

Guillermo Íñiguez is a DPhil candidate in EU Law at Somerville College, Oxford.

SUGGESTED CITATION: Íñiguez, G.; “Agent Fees, Player Transfers, and Transnational Leagues: What Lies Ahead for EU Football Law?”, EU Law Live, 29/01/2024, https://eulawlive.com/competition-corner/op-ed-agent-fees-player-transfers-and-transnational-leagues-what-lies-ahead-for-eufootball-law-by-guillermo-iniguez/

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ISU, Superleague and Royal Antwerp Cases: from Specialty Towards Efficiency Rusa Agafonova Introduction On 21 December 2023, the European Court of Justice (‘the Court’) delivered three major sports antitrust cases, the highly acclaimed European Superleague Company (C-333/21) and a less known by general public but in many

ways as interesting International Skating Union v Commission (C-124/21 P) and Royal Antwerp Football Club (C-680/21). These judgments are remarkable for multiple reasons: they assess sporting matters from a more

economic and less formalist perspective, tackle multiple problems of the actual sports governance (gatekeeping, lack of transparency, forced arbitration, unilaterality of policymaking processes, etc.) and have sufficient potential to re-structure sports organisation.

The European sports model and breakaway leagues The architecture of the latter is at the origin of the competition problems. The European sports model – the famous sports pyramid – intertwining several levels from grassroots and amateurs to semi-professionals and professionals, provides for only one organisation at the head of a sports discipline within a certain territory (a

regulatory monopoly). As a rule, sports governing bodies (‘SGBs’) are private entities (associations). This setup is widely recognised by the sports community as the most efficient way to keep rules homogenous and decisions enforced. One of the regulatory sub-functions of SGBs is gatekeeping, e.g. deciding which events to authorise or who to make eligible to participate. In addition to their regulatory role, SGBs run their own competitions including the Olympic Games contests, World Championships, World Cups, Gran Prix, etc.

Competitions are at the centre of every sport: they attract a lot of interest from fans and, thus, excellent business opportunities. This is where breakaway leagues and third-party organisers wishing to run and market their own

sports events outside the realm of SGBs step in. To do so, they cannot avoid a pre-authorisation process instituted by SGBs within a certain procedural framework.

But, in sport, input (primarily, athletes’ services) is extremely limited, especially at the elite level. The calendar is not infinite either. Not surprisingly, it is not uncommon for SGBs to refuse prior authorisations. This may

happen for purely sporting reasons: overlapping of third-party events with the official calendar of competitions, non-compliance with safety or technical requirements, sports integrity violations found in breakaway projects

and others. It might also happen for purely pragmatic commercial motives of SGBs since nobody wants tough competition. And sports organisations have the legal means to suppress the access of competitors at their

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discretion. Whether such a decision is well-founded or arbitrary depends on the respective procedural framework and of how well it is drafted, e.g., whether there are clear objective criteria that would not discriminate against

potential applicants. In the absence of such a framework – and it happens commonly among SGBs – the system of pre-authorisations can be qualified as an anticompetitive behaviour, both under Articles 101 and 102 TFEU.

In parallel, athletes, staff and officials licensed within a sports association can be statutorily - and contractually - prohibited by the latter from having any contacts with non-authorised organisers under the risk of serious

sanctions. The disciplinary consequences include ineligibility from official competitions within the European sports model and, consequently, impossibility to compete for major sporting titles. Gatekeeping and competing The gist of the problem is the SGBs’ gatekeeping role in the situation of a conflict of interests between the

regulatory and commercial roles (SGBs’ ‘being both ‘legislature and party’’ (Superleague, para. 43) and in the absence of sufficient procedural guarantees for other parties, be it organisers or athletes.

But, first, gatekeeping per se is not a competition law violation. Even if it is not a publicly delegated function. In fields like sport, gatekeeping is essential. Thus, separation of the regulatory and commercial roles could be a good

structural solution tackling the very essence of the problem by removing a conflict of interests. However, it would be way too radical for many SGBs. Therefore, the Court does not develop this solution.

In this situation, the Court decides to tackle procedural deficiencies. According to it, to mitigate the risk of

arbitrariness, SGBs should adopt a thorough procedural framework governed by the principles of transparency, clarity, objectivity, precision, proportionality and non-discrimination. On top of it, these rules should be

accompanied by a proper mechanism of judicial review. (Once again: is mandatory arbitration able to fulfil this function?).

When not based on a procedural framework with substantive criteria, both the mechanisms of prior authorisations and disproportionate eligibility rules such as that instituted by the UEFA and FIFA as well as the ISU – and by

extension practiced by many national and international organisations – constitute a restriction of competition by object under Article 101(1) TFEU and an abuse of dominant position under Article 102 TFEU. Sporting and efficiency justifications As a rule, SGBs (alongside other professional associations) justify their anticompetitive policies by proceeding

via a three-fold Wouters test (the exception was first formulated by the Court in Wouters v Algemene Raad van de Nederlandse Orde van Advocaten judgment (C-309/99), a case on the Bar rules in the Netherlands; it was first applied to a sports case in the famous Meca-Medina case (C-519/04 P)). In the framework of Wouters, an

undertaking should establish that the restrictive rules are meant to attain (1) a legitimate objective, (2) are suitable for it and (3) do not go beyond what is necessary to achieve it.

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Given that sport is special and has many specific characteristics, this mechanism has been broadly used by

many SGBs willing to justify their restrictive policies. However, the Court cuts short this possibility for the most restrictive case scenarios: once a restriction of competition by object in the sense of Article 101 TFEU is established, the possibility to invoke the Wouters exception becomes no longer available.

If the Court finds a hardcore restriction, it is possible to proceed only via Article 101(3) TFEU and its efficiency

gains test. In the presence of a restriction by effect, however, one can still resort to the Wouters exception and

demonstrate that the restriction is necessary for a certain legitimate sporting reason while there are no less intrusive

alternatives to achieve this goal. Such SGBs can equally invoke an efficiency defence under Article 101(3) TFEU. That said, this scenario leaves less chances of success as the requirements are of purely economic nature and

the specific features of sport will be then not given much weight: SGBs will need to find a way to demonstrate

convincingly – and based on the objective data – how the respective sports market(s) benefit(s) from the restriction, e.g., how the rule(s) contribute to improving the sport market(s) and (2) benefit different categories of consumers (3) without going beyond what is necessary and (4) without creating the risk of eliminating competition.

Narrowing down the application scope of the Wouters exception is a game-changer: hardcore restrictions are more likely to fail the efficiency gains test while restrictions by effect are rather expected to withstand the sporting justifications test. As a result, SGBs will be forced to abolish the most anti-competitive practices.

On the other hand, the sport-specific considerations still play an important – even if a limited – role. It is notably the case when such considerations are necessary for the very functioning of sport - and for the functioning of sports markets. In the end, the Court views sport as a full-fledged market and does not adopt any privileged treatment in this regard.

The future of the European sports model But it seems – as paradoxical as it can be – that the Court’s position is more favourable to the European sports model than, for example, the one exposed in his Opinion in the Superleague case AG Rantos, who did not see

any hardcore restriction in the practices of UEFA and FIFA as ‘there would be nothing, in principle, to prevent

the clubs forming the ESL from following the example of other sporting disciplines and from creating their own competition outside the framework defined by UEFA’ (Opinion by AG Rantos, Superleague, para. 76). For

Advocate General Rantos, the motivation of clubs supporting Superleague’s project amounts to aspiring for ‘dual membership’ and free riding, where they want ‘to set up a rival competition to UEFA’s in the most lucrative segment of the market for the organisation of European football competitions, whilst continuing to be part of the

UEFA ecosystem by participating in some of those competitions (and in particular in the national championships)’ (Opinion by AG Rantos, Superleague, paras. 106, 107).

The Court perceives the possible interaction between the European sports model and breakaway leagues not as a confrontational ‘dual membership’ but rather as a pragmatic co-existence anchored to the same common

rules and sporting values (Superleague, paras. 143-144). Respecting these values (e.g., sporting merit, equality of

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opportunities, unity of calendar) would be a condition sine qua non for running any competition regardless of who organises it (Superleague, para. 144). This includes, ‘holding of sporting competitions based on equal opportunities and merit’ (Superleague, para. 144). Conclusion For the Court, the fix for the ‘free-riding’ problem lies in a detailed procedural framework, which now plays an essential role. It is for sports organisations to respond to this challenge. They still enjoy full – although conditional

- autonomy to decide on the how. But there are a few elements that can be inferred from the judgments. Athletes – typically a weaker party in the relations with SGBs - should enjoy higher protection procedurally. Lifetime bans

are now the biggest faux pas. A further gradation of sanctions for different types of violations is essential. Clarity and detailedness are highly desirable.

Sport is special. But so too are sports markets.

Rusa Agafonova is a PhD Researcher at University of Zurich, Zurich, Switzerland. Contact: rusa.agafonova@gmail.com. Recent publications include: “EU Competition Law and Sport: Checks and Balances ‘à l’européenne’” in Duval Antoine (Anthology Editor) , Krüger Alexander (Anthology Editor), Lindholm, Johan (Anthology Editor) “The European Roots of the Lex Sportiva: How Europe Rules Global Sport”, London: Bloomsbury Publishing, 2024 (forthcoming); “The International Skating Union case: On a mission to defend the weaker party?” in Kornbeck Jacob (ed.) “EU Antitrust Law and Sport Governance: The Next Frontier?”, London: Routledge, 2023; and “International Skating Union v. European Commission: Is the European Sports Model under Threat?”, International Sports Law Journal, 2019, Vol. 19 (1-2), pp. 87-101. https://doi.org/10.1007/s40318-019-00155-6.

SUGGESTED CITATION: Agafonova, R.; “ISU, Superleague and Royal Antwerp Cases: from Specialty Towards Efficiency”, EU Law Live, 31/01/2024, https://eulawlive.com/competition-corner/isu-superleague-and-royal-antwerp-cases-from-specialty-towards-efficiency-by-rusa-agafonova/

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THE LONG READ

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Legal Grounds for Online Behavioural Advertising: A Case Study Liubomir Nikiforov 1 1. Introduction As leaked2 earlier this year, following the case C-252/21, Meta Platforms Inc v Bundeskartellamt,3 Meta started charging its European users if they do not consent to the use of their personal data for online behavioural targeting for advertising purposes. This constitutes a new strategy for Meta in response to EU data protection regulation. It

follows the judgment of the Court of Justice of the European Union (CJEU) that the company has been illegally processing personal data, the Norwegian DPA’s decision to temporarily ban Meta’s online behavioural targeting,4

and the EDPB ban on non-consent-based targeting.5 The ‘Pay for your rights’ solution, however, seems to be unsuitable under current data protection law.

Thus, the present Long-Read will look at the conundrum Meta is facing, related to the appropriate lawful grounds for online behavioural-targeted advertising under Article 6 of the General Data Protection Regulation (the ‘GDPR’).6 After the CJEU ruling, Meta can no longer avoid users’ consent by relying on ‘performance of

a contract’ under Article 6(1)(b) or on ‘legitimate interests’, following Article 6(1)(f ). In addition, I explain the

reasons why the consent mechanism is burdensome for companies such as Meta. I provide three reasons why Meta’s new approach, where users have the choice to pay in order not be targeted with behavioural ads, is not a real alternative to consent, which ultimately makes it invalid. 2. Legal grounds for online behavioural targeting The million-euro question of the last couple of years: what legal grounds could a social media giant use in order

to track its users’ online behaviour? Recently Meta has received another judicial blow7 concerning its search of an appropriate legal basis for its advertising business. In order to provide an initial overview of the complexity of the issue at stake, we first need to consider the conundrum Meta is facing.

1. PhD researcher at Vrije Universiteit Brussel, lyubomir.nikiforov@vub.be. 2. Sam Schechner, ‘Meta Plans to Charge $14 a Month for Ad-Free Instagram or Facebook’, The Wall Street Journal (2023). 3. Judgement of the Court of Justice of 04 July 2023, Meta Platforms Inc. v Bundeskartellamt, (C-252/21, EU: C:2023:537). 4. Datatilsynet (Norwegian Data Protection Authority), Temporary Ban on Behavioural Advertising on Facebook and Instagram, Datatilsynet (2023). 5. EDPB Urgent Binding Decision on processing of personal data for behavioural advertising by Meta, EDPB (2023). 6. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ 2016 L 119, p 1 7. Judgement of the Court of Justice, Meta Platforms Inc. v Bundeskartellamt, supra note 3.

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Online behavioural advertising is based on the observation of individuals’ actions and characteristics while browsing in order to develop a specific profile of an individual. The main idea is to provide tailored advertisements matching

data subjects’ particular lifestyle, opinions, and tastes.8 The technology works by placing tracking text files, also

commonly known as ‘cookies’, in user’s device or browser. Depending on the service provider’s objective, there are different types of cookies.9 Interesting for online targeting are the persistent third-party cookies whose objective is to collect data over a long period for subsequent advertisement purposes. They are particularly problematic due to the challenge they pose on the available lawful grounds for their deployment.

As required by the Directive 2002/58/EC (the ePrivacy Directive),10 and outlined in the GDPR, notice and

consent is the only mechanism to be used for a lawful third-party cookie deployment. Article 6(1)(a) of the GDPR establishes consent as a lawful ground for data processing, while the specific requirements and conditions to be

met for its validity can be found in Article 4, and Articles 7 to 9. Furthermore, the GDPR contains a definition

of consent in its Article 4 (11), where it is described as ‘any freely given, specific, informed and unambiguous indication of the data subjects wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her’.

The GDPR requires that controllers ensure that users’ conscious actions lead to consent and should design their notice mechanisms so that they comply with the consent validity requirements. In this sense, it is important to clarify those two points.

First, whenever data controllers rely on consent for the processing of personal data they should make sure that it is obtained through clear manifestation of the data subject’s will. As put by the European Data Protection Board (EDPB) ‘merely continuing the ordinary use of a website is not conduct from which one can infer an indication

of wishes by the data subject to signify his or her agreement to a proposed processing operation.’11 In other words, the data controller should have undeniable proof that the data subject has taken deliberate action to consent to the collection of his/her data.

Second, drawing on the Guidelines of the EDPB on consent, consent cannot be considered ‘freely given’ if no other alternatives were available to the users within the services of the same provider, nor if an individual was

forced to consent.12 This implies that when data subjects consent to third-party cookies without any alternatives

to access the first-party digital service, the user’s consent is invalid. Furthermore, from a formal point of view, a

consent notice should include controllers’ identity and a detailed list of all the purposes of the processing as well

8. Article 29 Data Protection Working Party, Opinion 2/2010 on Online Behavioural Advertising, (2010). 9. Id. 10. Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), OJ 2002, L 201, p 37 11. European Data Protection Board, Guidelines 05/2020 on Consent under Regulation 2016/679 Version 1.1, (2020). 12. Id.

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as information about any further data management.13 This requirement is challenging when it comes to online

targeted advertisement because it is technically difficult to provide a thorough description of the purposes for which

the collected data would be used due to the enhanced inference capacities of big data analysis. Those conditions, together with the requirement in Recital 32 of the GPDR that the notice’s text should be ‘understandable’ for the

user in order to qualify as ‘informed’, keep compliance with data protection regulation in online advertisement industry a challenge.

In order to avoid tackling with those issues and to circumvent the consent requirements in the GDPR, Meta has been exploring other legal grounds in order to obtain users’ data for the purposes of advertising such as

performance of a contract (Article6(1)(b)) and legitimate interests (Article 6(1)(f )).14 However, they proved

unsuitable following the ruling of the CJEU on Case C-252/21 Meta Platforms Inc v Bundeskartellamt, from July 2023. Under the EU data protection regulation, and as confirmed by the EDPB and CJEU decisions, Meta has

little room for interpretation when it comes to the adequate lawful basis for behavioural targeting. As required by the ePrivacy Directive, and outlined in the GDPR, notice and consent is the mechanism to be used for a lawful third-party cookie deployment and data processing.

In this context came Meta’s strategy aimed to avoid dealing with consent.15 Some news outlets in Europe already practice forms of paywall barriers.16 Similarly, different competitors in the social networks market developed with

varying success their own policies regarding ad-free versions of their services.17 Although the strategy is familiar

as Ribera Martínez (2023) shows, Meta’s decision is, at least, innovative because it supposes a new approach to collecting personal data by large online platforms. 3. How this point was reached

Some would say it all started with the GDPR entering into force in 2018,18 others, on the 31 December

2022 with the Irish Data Protection Commission’s (Irish DPC) decisions.19 Those decisions found that Meta (concerning Facebook, back then, and Instagram, both under Meta today) could not rely on Article 6(1)(b) GDPR, performance of a contract, for its processing of personal data for the purposes of behavioural advertising

in the context of their services. Meta was ordered to bring those processing activities into compliance with Article 6(1) GDPR within three months.

13. Article 5(b) and Recital 42, GDPR. 14. CJEU declares Meta/Facebook’s GDPR approach illegal, Noyb (2023). 15. Schechner, supra note 2. 16. News Sites: Readers need to ‘buy back’ their own data at an exorbitant price!?, Noyb (2021).; Meta (Facebook / Instagram) to move to a ‘Pay for your Rights’ approach, Noyb (2023) 17. Alba Ribera Martínez, Op-Ed: ‘The Ambivalence of Rejecting and Granting Consent: Ad-F(r)Ee Digital Services’ EU Law Live, 16 October 2023. 18. Meta (Facebook / Instagram) to move to a ‘Pay for your Rights’ approach, supra note 14. 19. Inquiry IN-18-5-5, EDPB (2022); Inquiry IN-18-5-7, EDPB (2022).

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On 5 April 2023, the Irish DPC shared with the other supervisory authorities documents1 that Meta has shifted

its legal basis to Article 6(1)(f ), legitimate interests. As the communication from the Norwegian Data Protection

Authority (Norwegian DPA) read, on 5 May 2023, the Norwegian DPA formally requested the Irish DPC, as a lead supervisory authority, to temporarily impose a ban on Meta’s personal data processing for behavioural advertising purposes. This request was turned down.

Shortly after, on 4 July 2023, the CJEU issued its decision on the case C-252/21, Meta Platforms Inc v

Bundeskartellamt.2 In this judgment, the Court interprets Article 6 GDPR and holds that Meta cannot rely

on Article 6(1)(f ) for processing of personal data for behavioural advertising. The Court’s decision suggests that Meta has been processing personal data for the purposes of behavioural advertising in lack of lawful grounds since 2018, when the GDPR, entered into force.

In this context, the Norwegian DPA announced3 on 17 July 2023 that it has issued a temporary ban on Meta’s

processing of personal data for advertising based on behavioural targeting techniques. It is the first European data protection authority to take this step. The ban lasted for three months, from 4 August 2023 until 3 November

2023. The possible options before Meta are either to comply and shift to consent as the only lawful ground for personal data processing for behavioural targeting or to litigate in Oslo, and face fines.4 However, this decision is not binding for the other data protection authorities. Therefore, the Norwegian DPA requested an urgent binding decision.5 On 27 October, the EDPB adopted a binding decision imposing a ban on the processing of personal data for behavioural advertising on the grounds on Articles 6(1)(b) and (f ).6

Some celebrated the CJEU’s judgement as a turning point and even an ‘independence-from-Meta’s-surveillancecapitalism-day’.7 However, the saga around Meta’s approach to EU data protection seems not to end up here. On 3 October 2023, a media outlet published an article, which reports about a meeting in September with regulators

in Brussels, during which Meta’s officials presented their plan to tackle EU data protection rules. The idea is

to give a choice to European users between free access to its social media platforms with personalized ads or to subscribe to a paid version without ads. As Ribera Martínez (2023) points out it is not clear whether this policy

has any impact on the processing of personal data for contextual advertising. Meta relies on the CJEU’s recent ruling,8 in particular, paragraph 150, which states that ‘... users must be free to refuse individually ... to give their

consent to particular data processing operations not necessary for the performance of the contract, without being obliged to refrain entirely from using the service offered by the online social network operator ... if necessary for an appropriate fee, (emphasis added) an equivalent alternative not accompanied by such data processing operations.’

1. Urgent and Provisional Measures - Meta (Ref. num. 21/03530-16), Datatilsynet (2023). 2. Judgement of the Court of Justice, Meta Platforms Inc. v Bundeskartellamt, supra note 3. 3. Datatilsynet (Norwegian Data Protection Authority), supra note 4. 4. By the time of the publication of this document, no information on the next steps taken by Meta are known to the author. 5. Urgent and Provisional Measures - Meta (Ref. num. 21/03530-16), supra note 18. 6. EDPB Urgent Binding Decision on processing of personal data for behavioural advertising by Meta, supra note 5. 7. Natasha Lomas, CJEU Ruling on Meta Referral Could Close the Chapter on Surveillance Capitalism, TechCrunch (2023). 8. Judgement of the Court of Justice, Meta Platforms Inc. v Bundeskartellamt, supra note 3. www.eulawlive.com

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4. In search of legal grounds Those plans have been already implemented, which constitutes a new chapter in the intricate relations between Meta and European regulators. However, there are several reasons why this approach is flawed.

First, Meta’s new approach is based on a sentence from the recitals to the GDPR, the interpretative part of the legislation in question; preceding the text of the CJEU’s final ruling, which automatically casts doubts on the

lawfulness of the social media giant’s new strategy. In Sections 2 and 3, I explain that the only lawful ground for data processing for behavioural targeting is consent. This is by virtue of the provisions in the GDPR and the ePrivacy Directive. The guiding and interpretative work of the EDPB as well as the judgments of the CJEU

confirm this stance in a consistent and coherent manner. Therefore, the only legally binding and lawful actions Meta could rely on before a court are contained in the case C-252/21, Meta Platforms Inc v Bundeskartellamt,

ruling and the provisions of the GPDR and the ePrivacy Directive, which mandate that consent is the legal basis for data processing when it comes to online behavioural targeted advertising.

Second, Meta is in a dominant position in the online social networks market. An important element of the

validity of consent is the notion of freedom to choose. ‘ Free’ consent implies a real choice. Meta exercises a

dominant position on the social media platforms market, which means that users cannot easily withdraw from Facebook or move to a competitor. This entails a risk of power imbalance and imposition of unilateral conditions

by the platform to its users. As recognised in Case 252/21, ‘…a dominant position on the market for online social

networks does not, as such, preclude the users of such a network from being able validly to consent...‘. This means

that although Meta enjoys a dominant position, it has to ensure full compliance with consent requirements as

any other market player. Furthermore, the influence Meta has on the market constitutes an ‘important factor in determining whether the consent was in fact validly and, in particular, freely given, which it is for that operator to prove.‘ The EDPB Guidelines on consent9 explicitly state that ‘if the data subject has no real choice, feels

compelled to consent or will endure negative consequences if they do not consent, then consent will not be valid.‘

In addition, ‘consent will not be considered to be free if the data subject is unable to refuse or withdraw his or her consent without detriment‘.

Third, the option to choose between a paid and free version of Meta’s platform Facebook does not constitute a valid consent. This is so not only in connection with the specific market position of the social media but because

it could not be withdrawn without detriment to the user. The EDPB Guidelines are illuminating in this matter by determining that the ‘controller needs to demonstrate that it is possible to refuse or withdraw consent without

detriment (recital 42). For example, the controller needs to prove that withdrawing consent does not lead to any costs for the data subject (emphasis added) and thus no clear disadvantage for those withdrawing consent.‘ Therefore, the

possible switch from free to paid version, on the basis of the consent of the user in order not to be targeted with online behavioural adversiting within the same service whose data processing operations are not necessary for the performance of the service constitutes an invalid consent. Hence, Meta’s data processing is unlawful. 9. European Data Protection Board, supra note 9. www.eulawlive.com

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5. Conclusion The endeavours to circumvent the exigent requirements of consent for online behavioural-targeted advertising, as mandated by the GDPR and the e-Privacy Directive, has produced a complex legal conundrum. The approach of offering users the choice between accepting personalised ads or paying for an ads-free service underscores the centrality of user consent in EU data protection rules. The unfolding of this case not only highlights the

complexities of current data protection regulations when it comes to advertising but also serves as a crucial case study when it comes to privacy and consumer rights. This innovative yet legally challenging strategy fuels the saga around Meta’s data processing in Europe and will keep regulators busy for the next months for two reasons.

First, the EDPB has decided10 over the Norwegian DPA request to ban Meta’s behavioural targeting practices.

The consequences of such a decision are unexpected and need to be evaluated. However, the EDPB’s urgent binding decision and the CJEU’s ruling have made it clear that consent is the only valid mechanism for online behavioural targeting.

Second, the implementation of the plan to charge users who wish not to be subjected to behavioural targeting

does not constitute a valid consent, as it does not allow users to refuse or withdraw consent without detriment. Moreover, it has already given rise to civil society11 and consumer organizations complaints, 12 adding up series of new litigations to this long-lasting saga. Therefore, the consequences of this case have the potential to shape future discussions on data processing and the delicate balance between user choice and service providers’ practices in the digital age.

SUGGESTED CITATION: Liubomir Nikiforov: “Legal Grounds for Online Behavioural Advertising: A Case Study ”, EU Law Live Weekend Edition nº 172, https://eulawlive.com/weekend-edition/weekend-edition-no172/

10. EDPB Urgent Binding Decision on processing of personal data for behavioural advertising by Meta, supra note 5. 11. noyb files GDPR complaint against Meta over ‘Pay or Okay,’ Noyb (2023). 12. Consumer groups file complaint against Meta’s unfair pay-or-consent model, BEUC (2023).

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BOOK REVIEW

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Crimmigration and the Return Directive (Author: Aniel Pahladsingh)

Review by: Bas van Bockel Introduction In this study published by Eleven (2023), the author discusses

the implications of the use of criminal law instruments and measures against migrants illegally staying in the EU in the context of the EU return directive (Directive 2008/115/EC of the

European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning

illegally staying third-country nationals). Migration is a hot topic, and the issue of return –or, to be precise: the failure of return– of

third country nationals who do not fulfill the conditions for legal stay in the EU ranks high on political agendas in many (if not

most) Member States. In spite of all the attention to the issue, reliable data on ‘effective’ return of illegal migrants are hard to

come by, and officially published return rates vary and are often incomplete or inconsistent. Nevertheless it is evident that the instruments and policies that are presently in place have failed to deliver the desired result (namely: return) in the majority of

cases. Various initiatives that have been launched since 2016 in

order to boost return rates have been unsuccessful, and the issue has only become more contentious in recent years.

This study is certainly worth reading for anyone who takes a professional interest in the field of migration in

general, and the EU and Member States’ response to the migration crisis in particular. But it is also of interest to

others, and its publication is certainly timely. Migration is a key issue in past and upcoming elections in Europe, as well as many other parts of the world. The migration debate is highly politicised, and the merit of this study lies therein that it offers an objective account of the measures and policies involved in view of the legal and

constitutional limits that are in place. Incidentally, the findings provide insights into some of the reasons why the current instruments and policies fail to deliver the desired results.

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The phenomenon of ‘crimmigration’ and the Return Directive Crimmigration is described in the literature as the ‘merger’ between migration law and criminal law. Criminal law and migration law increasingly overlap (both substantively and procedurally), and criminal law and migration

law are enforced in the same or similar ways. There are many examples of the phenomenon of crimmigration. Amongst other things, there is an increase in the criminal grounds for expulsion and exclusion of migrants (the

‘immigrationalisation of criminal law’), violations of immigration law traditionally belonging to the realm of administrative or civil law are increasingly dealt with under criminal laws (the ‘criminalisation of migration’), and

immigration laws increasingly aim to protect the security of the state (the ‘securitisation’ of immigration). The

phenomenon of crimmigration is associated with a number of serious issues including racism, the exclusion of certain groups within society, and other economic and social risks which can present themselves prior to, or after expulsion to a third country. From a legal perspective the problem with crimmigration essentially lies in the fact that theories, methods, attitudes and other characteristics of the criminal law model are absorbed by migration

law, but that the concomitant procedural safeguards and respect for constitutional rights characteristic of criminal proceedings are not.

The Return Directive establishes ‘common standards and procedures’ for returning illegally staying third-country

nationals to their country of origin, and creates several instruments to this end including: (1) the return decision, (2) the entry ban, and (3) the possibility of detention. The Member States are left with ample discretion in the

choice of means employed in the implementation and enforcement of the provisions of the Return Directive. Amongst other things, the Member States are free to choose between measures of a criminal law or administrative

law nature for enforcing the abovementioned three instruments, and this connects the Return Directive directly to crimmigration. The Return Directive establishes some of the conditions that apply, for example, in case of

detention of illegal migrants but other conditions follow from other sources, and in particular the European

Convention on Human Rights (ECHR), the Charter of Fundamental Rights of the EU, and the case law of the European courts.

Analysis of the Return Directive, the Return Decision, the Entry Ban, and Detention The study analyses the Return Directive, the Return Decision, the Entry Ban, and Detention in the light of the crimmigration discourse. NGO’s, academics and others have voiced fierce criticism of the directive on grounds

of the lack of protection of fundamental rights of illegal immigrants, arguing that the directive ‘encouraged’ the Member States to lower their standards of protection. Others have pointed out that the wide discretion that the directive gives to the Member States in its implementation and enforcement leads to fragmentation, and that

more comprehensive common standards and procedures are needed within the EU. Another shortcoming that

is of major concern to many is the directives’ lack of effectiveness, as return rates have been disappointing. The proposal for a recast Return Directive only addresses these concerns to a limited extent, and the Commission has

been criticized for failing to carry out any impact assessment. Whether the recast directive will boost return rates as intended remains to be seen, as much really depends on the willingness of third countries to accept migrants back.

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After an in-depth discussion of the Return Directive, the author analyses the Return Decision and the case law of the Court of Justice (CJEU) on the extent to which the Member States can make use of criminal law instruments in its enforcement. The general rule from the case law is that the Member States are free to make use of criminal law instruments and sanctions as long as such does not jeopardize the effectiveness of the Return Directive. The precise extent to which the Member States are at liberty to enforce the return decision by criminal law means

remains subject to debate. Detention presents the CJEU and the Member States with an interesting conundrum in this regard, given that it is by its very nature capable of delaying the return of an illegal migrant to his or her country of origin.

When an entry ban is issued by a Member State, this applies to all Schengen States. Adequate coordination

and information sharing is therefore essential in order to effectuate an entry ban, and this is in practice achieved through registration of the entry ban in the Schengen Information System (‘SIS’). The issuance of an entry ban and its registration in the SIS is subject to the requirements of individual and personal consideration of the

case, proportionality, and that the matter is ‘adequate, relevant, and important enough’ as per the Schengenrequirements Otherwise, the Member States are free to determine their own requirements of public policy ‘in accordance with their national needs’, as confirmed by the case law of the CJEU.

Detention is the most far-reaching and problematic of the three instruments analysed in the study. It is also the instrument that is surrounded by the most safeguards and requirements under the ECHR and EU law. In spite

of this, ‘the practice in the Member States (raises) serious doubts as to whether there are sufficient safeguards to prevent the systemic use of detention for prolonged periods and under inadequate conditions’. The Return

Directive has probably encouraged the use of detention as a legitimate instrument in effectuating migration and border management policies, and this appears to have led to an increase in the use of migration detention. At the

same time, the Return Directive leaves the Member States free to determine their own detention policies, and this leads to considerable diversity and undermines legal certainty and the uniform implementation of EU migration law.

The author points out that there are no indications that detention has had any positive effect in terms of either higher return rates, or any decrease in illegal movements of third country nationals. The author concludes from this that the instrument of detention does not appear contribute towards achieving the aims of the EU’s migration

policies, and proposes that the recast Return Directive should include other measures that form less onerous alternatives to detention. The author also concludes that migration detention of minors in the EU should be

abolished in the light of the requisite standards of protection, and that the maximum time of detention under the return directive (18 months) is disproportionally long and problematic. Conclusions The author inter alia concludes that there are two main issues with the Return Directive in the context of

crimmigration. The first is that the protection of fundamental rights of migrants is not fully developed, leading

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to problems for migrants and ‘tensions’ with the requirements of the Rule of Law. The second is that the Return Directive allows the Member States to use criminal law measures and instruments, but does not set forth

the requisite criminal law safeguards to this end. Overall, EU crimmigration law needs more coherence and

consistency. The current fragmentation, inconsistencies, and imbalances affect both the rights of migrants as well as the effectuation of the EU’s migration policies. Bas van Bockel is Research Fellow at Leuven University.

www.eulawlive.com

HIGHLIGHTS OF THE WEEK

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ISSUE Nº12 29 JANUARY - 2 EBRUARY 2024

Meta Platforms files appeals in cases on requests for information, published in OJ Monday 29 January

Meta Platforms Ireland Ltd, formerly Facebook Ireland Ltd, filed two appeals, seeking the setting aside of the General Court’s judgment in Meta Platforms Ireland v Commission (T-452/20) and Meta Platforms Ireland v Commission (T-451/20)

concerning, respectively, Commission Decision C(2020) 3013 final on Facebook Marketplace and Commission Decision C(2020) 3011 final concerning Facebook’s data-related practices. Read on EU Law Live

Poland initiates legal proceedings against Germany over alleged illegal waste shipments Monday 29 January

The Republic of Poland initiated legal proceedings against Germany in Case C-730/23, filed on 29 November 2023, concerning Poland’s claims that Germany failed to fulfill its obligations under Regulation 1013/2006 on shipments of waste. Read on EU Law Live

Commission initiates merger control proceedings in relation to proposed joint control of ITA Airways by Lufthansa and the Italian Ministry of Economy and Finance Monday 29 January

Official publication was made of a Commission’s decision to initiate proceedings, in Case M.11071 – Deutsche Lufthansa / MEF/ITA, over concerns that the notified merger might be incompatible with the internal market. Read on EU Law Live

Booking Holdings challenges Commission decision on merger: alleged errors in competitive assessment Monday 29 January

Official publication was made of an action brought on 5 December 2023 by Booking Holdings Inc., based in Norwalk, Connecticut, against the European Commission in Case T-1139/23, challenging the Decision C(2023) 6376 final of 25 September 2023 regarding the merger between Booking Holdings and eTraveli Group: Booking Holdings v Commission (Case T-1139/23).

Read on EU Law Live

Preliminary reference concerning time frame of recovery of undue payments from the beneficiary of agricultural development funds, published in OJ Monday 29 January

Official publication was made of a preliminary ruling request from the Nejvyšší správní soud (Czech Republic), lodged on 7 November 2023, concerning the interpretation of Article 54(1) of Regulation 1306/2013 on the financing, management and monitoring of the common agricultural policy: Ministerstvo zemědělství (C-657/23). Read on EU Law Live

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Request for preliminary ruling clarifying the competent authority of issuing a European Investigation Order, published in OJ Monday 29 January

A request for a preliminary ruling, concerning the interpretation of Directive 2014/41/EU on the European Investigation

Order in criminal matters, from the Kammergericht Berlin (Germany), lodged on 23 October 2023, was officially published in the OJ: WBS GmbH (C-635/23). Read on EU Law Live

Council adopts new rules on phasing out substances causing global warming and depleting the ozone layer Monday 29 January

The Council adopted two new regulations to phase down fluorinated gases (F-gases) and other substances that cause global warming and deplete the ozone layer. Read on EU Law Live

Council approves EU global health strategy to prioritize better health worldwide Monday 29 January

The Council officially endorsed the ‘EU Global Health Strategy: Better health for all in a changing world’, which emphasises that health, both physical and mental, is a fundamental human right and a cornerstone for sustainable development. Read on EU Law Live

Council and Parliament reach deal to enhance conditions for tourist bus drivers Tuesday 30 January

The Council presidency and the European Parliament negotiators reached a provisional agreement on revising the 2006 rules on driving times and rest periods for occasional bus and coach services in Europe. Read on EU Law Live

Court of Justice streaming hearing in case concerning the compatibility with the Charter of a judicial review of decision to withdraw authorisation to access classified information Tuesday 30 January

The Court of Justice’s hearing in protectus (C-185/23), a case concerning a preliminary reference from Najvyšší Správny súd

Slovenskej Republiky (Slovakia) on whether Article 51(1) of the Charter of Fundamental Rights should be interpreted as

meaning that a Member State implements EU law in the case where a court of that Member State assesses the legality of a decision of a special commission of the parliament of that State, was streamed on the Court’s website. Read on EU Law Live

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Court of Justice: Promotional announcements for radio programmes on TV broadcaster belonging to same corporate group is not, in principle, precluded Tuesday 30 January

The Third Chamber of the Court of Justice delivered its judgment in a case concerning the compatibility of Italian legislation prohibiting excessive advertising with Article 23 of Directive 2010/13/EU, including in the light of recital 43 of Directive 2018/1808/EU, and also the interpretation of those provisions of antitrust law: Reti Televisive Italiane (C-255/21). Read on EU Law Live

Court of Justice upholds rights of unaccompanied minor refugee for family reunification despite age majority Tuesday 30 January

The Court of Justice delivered its judgment in Landeshauptmann von Wien (Regroupement familial avec un mineur réfugié) (C560/20) clarifying that an unaccompanied minor refugee retains the right to family reunification with parents, even if they reach adulthood during the reunification procedure. Read on EU Law Live

Commission initiates merger control proceedings in relation to acquisition of Air Europa by International Airlines Group Tuesday 30 January

Official publication was made of the European Commission’s decision to initiate proceedings in Case M.11109 – IAG / AIR

EUROPA, after finding that the notified concentration raises serious doubts as to its compatibility with the internal market. Read on EU Law Live

Indefinite storage of biometric and genetic data of convicted individuals is incompatible with EU law: Court of Justice Tuesday 30 January

The Court of Justice delivered its judgment in a case concerning a preliminary ruling request whereby clarification is sought

on the compatibility of Bulgarian law with certain provisions of Directive 2016/680 on the protection of natural persons with

regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and Article

52(1) of the Charter of Fundamental Rights: Direktor na Glavna direktsia „Natsionalna politsia“ pri MVR – Sofia (C-118/22). Read on EU Law Live

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Court of Justice ruling on financial corrections: validity of Commission Decision and judicial protection in Bulgaria’s Transport Program Tuesday 30 January

The Court of Justice has delivered its judgment in Agentsia „Patna infrastruktura“ (Financement européen d’infrastructures

routières) (C-471/22) concerning, among other things, the validity of Commission Decision C(2021) 5739 final of July 27, 2021, which annulled a part of the contribution from the Cohesion Fund for the operational program “Transport” 2007-2013 under the “Convergence” objective in Bulgaria. Read on EU Law Live

ECtHR: No violation of Article 8 ECHR in Cherrier v. France concerning the unveiling of biological origins Tuesday 30 January

The European Court of Human Rights (ECtHR) delivered its judgment in Cherrier v. France (application no. 18843/20) concerning the refusal by the National Council for Access to Information about Personal Origins (CNAOP) to disclose to the applicant the identity of her biological mother who abandoned her at birth and reiterated her wish to maintain confidentiality in response to the request to lift the secrecy of her origins. Read on EU Law Live

Commission initiates State aid investigation to assess Swedish tax exemptions for biogas and bio-propane for heating and motor fuel Tuesday 30 January

The European Commission opened an in-depth investigation to assess the compatibility with EU State aid rules with two Swedish tax exemption schemes for non-food-based biogas and bio-propane used for heating or fuel. Read on EU Law Live

Chairperson of Board of Appeal of Community Plant Variety Office, appointed by Council Wednesday 31 January

Official publication was made of Council Decision of 29 January 2024 appointing the Chairperson of the Board of Appeal of the Community Plant Variety Office. Read on EU Law Live

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EU and US collaborate on trade and technology advancements Wednesday 31 January

The EU and the United States convened the fifth meeting of the EU-US Trade and Technology Council in Washington, D.C., chaired by prominent figures such as European Commission Executive Vice-Presidents, US Secretary of State, US Secretary of Commerce, and US Trade Representative, along with the European Commissioner for Internal Market. Read on EU Law Live

Commission carries out unannounced inspections of undertakings in the tyres industry Wednesday 31 January

The European Commission carried out unannounced inspections of companies operating in the tyres industry in several

Member States, over concerns that the companies may have violated the EU prohibition of cartels and restrictive business practices, as enshrined in Article 101 TFEU. Read on EU Law Live

Commission amends annex to Monetary Agreements with San Marino, Vatican City and Monaco Wednesday 31 January

The European Commission issued two decisions, dated 30 January 2024, amending the Annex to the Monetary Agreements between the EU and the Republic of San Marino, as well as the Vatican City State. Read on EU Law Live

Commission adopts proposal on new EU-UK joint solution concerning tariff-rate quotas for Northern Ireland agri-food businesses Wednesday 31 January

The Commission adopted a proposal on a new EU-UK joint solution, under the Windsor Framework, regarding the use of tariff-rate quotas (TRQs) by Northern Ireland businesses for commodities originating from the rest of the world. Read on EU Law Live

General Court upholds ban on oxo-degradable plastic products for environmental protection Wednesday 31 January

The General Court delivered its judgment in Symphony Environmental Technologies and Symphony Environmental v Parliament and Others (T-745/20) concerning the European legislature’s directive to prohibit the placement on the market of products made from oxo-degradable plastic, endorsing the ban to align with environmental and human health protection goals. Read on EU Law Live

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General Court annuls Commission’s decision approving merger of Nidec and Whirlpool Wednesday 31 January

The Ninth Chamber of the General Court delivered its judgment in Italia Wanbao-ACC v Commission (T-583/20), a case concerning an action under Article 263 TFEU, by which the applicant, Italia Wanbao-ACC Srl, requested the annulment of Decision C(2020) 3118 final of 15 May 2020, amending the undertakings made by Decision C(2019) 2734 final of 12 April 2019, which authorised the merger in Case M.8947, Nidec/Whirlpool (Em). Read on EU Law Live

EU reaches agreement to enhance consumer information on breakfast products Wednesday 31 January

The Belgian Presidency of the Council, in collaboration with the European Parliament, reached a provisional agreement to enhance consumer information requirements for honey, fruit jams, fruit juices, and dehydrated milk, aiming at updating rules regarding the composition, labelling, and naming of such products. Read on EU Law Live

Commission proposes temporary derogation for farmers to address income concerns Wednesday 31 January

The European Commission adopted a proposal allowing EU farmers to derogate, or deviate, from certain Common Agricultural Policy (CAP) rules for the year 2024, by thus addressing farmers’ income concerns. Read on EU Law Live

Commission proposes the renewal of suspension of import duties for Ukrainian and Moldovan exports Wednesday 31 January

In line with EU commitments to support Ukraine for as long as it takes, the European Commission proposed to renew the suspension of import duties and quotas on Ukrainian exports to the EU for another year, while reinforcing protection for sensitive EU agricultural products. Read on EU Law Live

Commission amends Monetary Agreement with Andorra Thursday 1 February

The European Commission issued Decision (EU) 2024/402, amending the Annex to the Monetary Agreement between the

EU and the Principality of Andorra, which mandates Andorra to implement Union acts related to euro banknotes and coins, financial law, anti-money laundering measures, fraud prevention, and more. Read on EU Law Live

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EFTA Surveillance Authority opening of formal investigation on alleged State aid in Norwegian real estate market, published in OJ Thursday 1 February

Official publication was made of EFTA Surveillance Authority (‘ESA’) Decision No 173/23/COL of 6 December 2023 to open a formal investigation into the sale of a property in Lørenskog, Norway (Case 89161). Read on EU Law Live

EU-UK officials discuss Northern Ireland, tariff solutions, and ongoing cooperation Thursday 1 February

In a call between Executive Vice-President Šefčovič and UK Foreign Secretary David Cameron, both emphasized the crucial importance of restoring the Northern Ireland Executive and delivering for its people. Read on EU Law Live

EU and Japan sign protocol to include provisions on cross-border data flows as part of Economic Partnership Agreement Thursday 1 February

The Belgian Presidency of the Council signed, on behalf of the EU, the protocol to include provisions on cross-border data flows in the agreement between the EU and Japan for an Economic Partnership. Read on EU Law Live

Court of Justice dismisses Scania’s appeal, in its entirety, concerning imposition of a fine by the Commission for taking part in cartel on the trucks market Thursday 1 February

The Court of Justice handed down its judgment in Scania and Others v Commission (C-251/22 P), a case on appeal seeking the setting aside of the General Court’s judgment in Case T-799/17 concerning a decision of the Commission to impose a fine of €880,523,000 on Scania for a violation of Article 101 TFEU and 53 EEA Agreement. Read on EU Law Live

AG Rantos proposes Court of Justice to dismiss grounds of appeal in case concerning, principally, the infringement by the General Court of res judicata Thursday 1 February

Advocate General Rantos delivered his Opinion in Westfälische Drahtindustrie and Others v Commission (C-70/23 P), a case

on appeal by which the applicants have sought the annulment of the judgment of the General Court in case T‑275/20, by which it dismissed their action seeking, principally, the annulment of the European Commission’s letter of 2 March 2020 giving them formal notice to pay the sum of EUR 12 236 931.69 corresponding to the outstanding balance of a fine previously imposed on them by the Commission. Read on EU Law Live

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The Week

ISSUE Nº12 29 JANUARY - 2 EBRUARY 2024

AG Collins’ Opinion on standing challenges: associations of judges and prosecutors in judicial review Thursday 1 February

Advocate General (AG) Collins delivered his Opinion in Asociaţia “Forumul Judecătorilor din România” (Associations de

magistrats) (C-53/23), a case concerning a preliminary ruling request from the Curtea de Apel Pitești (Romania) which seeks

clarification on whether certain limitations imposed on professional associations of judges and the allocation of exclusive

investigative competence to specific prosecutors comply with EU law, including the provisions related to judicial independence, the rule of law, and effective judicial protection. Read on EU Law Live

AG Kokott’s Opinion on VAT treatment of group companies and fixed establishments Thursday 1 February

Advocate General Kokott delivered her Opinion in Adient (C-533/22) on whether a group company in Romania can

simultaneously be considered the fixed establishment of its contract partner in Germany, and, consequently, whether the services are subject to Romanian VAT. Read on EU Law Live

Council and Parliament reach provisional deal on single market emergency instrument Thursday 1 February

The Council and the European Parliament reached a provisional agreement on the regulation for a Single Market Emergency

Instrument (SMEI) and accompanying legislative proposals (SMEI omnibus), aiming at safeguarding citizens, workers, and businesses during crises while respecting fundamental rights, including the right to strike. Read on EU Law Live

State Aid approval decisions in the Official Journal Friday 2 February

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

Council and Parliament reach provisional deal on EU right-to-repair directive Friday 2 February

Seeking to promote a circular economy, the Council and the European Parliament reached a provisional agreement on the

right-to-repair (R2R) directive, which aims to facilitate repair over disposal, making it easier for consumers to access repair services for broken or defective goods. Read on EU Law Live

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The Week

ISSUE Nº12 29 JANUARY - 2 EBRUARY 2024

Commission establishes detailed rules on audits for very large online platforms and search engines Friday 2 February

Official publication was made of Commission Delegated Regulation (EU) 2024/436 of 20 October 2023 supplementing

Regulation (EU) 2022/2065 of the European Parliament and of the Council, by laying down rules on the performance of audits for very large online platforms and very large online search engines. Read on EU Law Live

Council and Parliament reach provisional agreement on future-ready European statistics framework Friday 2 February

The Council and the European Parliament reached a provisional political agreement to amend existing rules governing

European statistics, therefore seeking to modernise the legal framework at the EU level, enabling statistical authorities to harness the full potential of digital data sources and technologies. Read on EU Law Live

Council and Parliament reach agreement on new rules introducing multiple vote-sharing structures for companies listed on SME growth markets Friday 2 February

The Council and the European Parliament reached a provisional agreement on new rules aiming at encouraging owners of

SMEs, in particular, to list the shares of their company on an SME growth market using multiple-vote share structures, so that they can retain sufficient control of their company after listing. Read on EU Law Live

European Council agrees on revised multiannual financial framework 2021-2027, prioritizing support for Ukraine and addressing migration challenges Friday 2 February

The European Council reached an agreement on the revision of the Multiannual Financial Framework (MFF) for 20212027, focusing on ensuring stable, predictable, and sustainable financial support for Ukraine from 2024 to 2027. Read on EU Law Live

EU and Canada enhance digital partnership to tackle new challenges Friday 2 February

The Commissioner for Internal Market and Canada’s Minister of Innovation, Science and Industry met to begin working on

the implementation of the EU-Canada Digital Partnership, which aims at helping both sides to address new challenges in

digital transformation, focusing on increasing cooperation on artificial intelligence (AI), quantum science and semiconductors, public policy related to online platforms, secure international connectivity, and cyber security. Read on EU Law Live

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The Week

ISSUE Nº12 29 JANUARY - 2 EBRUARY 2024

Council and Parliament provisionally agree on new rules to make EU public capital markets more attractive for EU undertakings Friday 2 February

The Council and the Parliament reached a provisional agreement on a package that will make EU public capital markets more attractive for EU companies and make it easier for companies of all sizes, including SMEs, to list on European stock exchanges.

Read on EU Law Live

Commission unveils ambitious Annual Work Programme on Standardisation for 2024 Friday 2 February

The European Commission has released its Annual Union Work Programme on European Standardisation (AUWP) for 2024, outlining key priorities for standards-related activities. Read on EU Law Live