ISSUE Nº14
Y EAR 2 0 2 4
12-16 February 2024
IN-DEPTH: It’s Time to Take the Right of Family Reunification of Unaccompanied Minor Refugees Seriously. The Landeshauptmann von Wien case Silvia Bartolini The Court of Justice interprets Directive 2016/680 and limitations on storage of personal data in police records (Direktor na Glavna direktsia “Natsionalna politsia” pri MVR – Sofia, C-118/22) Alberto Miglio A vague response to a vague law: The Commission’s infringement procedure against Hungary’s Defence of Sovereignty Bill Miriam Schuler 2024 Update of ‘EU Law Live Sanctions Calculator Albrecht Wendenburg Member States can adopt national law imposing penalty for early termination of an energy supply contract. G (Frais de résiliation anticipée), (C-371/22) Delphine Defossez Consequences of the absence in trademark law of a provision equivalent to the so-called “repair clause” provided for community design (Audi Ag v. GQ (C-334/22) Marie-Elvire de Moro-Giafferri States are not obliged to recognise refugee status awarded by another Member State but should ‘take into account’ this status during a new procedure (C-753/22, AG Opinion) Lucia van der Meulen SYMPOSIUM: ON EU ENLARGEMENT OF THE EU Europe’s Search for a Democratic Dividend between Enlargement and Treaty Reform Alberto Alemanno COMPETITION CORNER: SYMPOSIUM ON LAW AND SPORT Who’s Next in the Queue? Sports Cases Pending before the European Court Marcos Araujo Taking EU (Competition) Law outside of the Court of Arbitration for Sport (Case C-124/21 P International Skating Union v Commission) Antoine Duval and Ben Van Rompuy THE LONG READ: Mutual trust under the European Arrest Warrant and ongoing challenges for fundamental rights. Navigating through risks in troubled waters: proposal for a unique reasoned risk-based test Cecilia Rizcallah HIGHLIGHTS OF THE WEEK
ISSN: 2695-9593 2 0 2 4 © A L L R I G H T S R E S E RV E D
IN-DEPTH
3
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
It’s Time to Take the Right of Family Reunification of Unaccompanied Minor Refugees Seriously.The Landeshauptmann von Wien case Silvia Bartolini 1. Introduction On January 30 the Grand Chamber of the Court of Justice (the Court) delivered its long-awaited judgment in case C-560/20, Landeshauptmann von Wien concerning the right to family reunification of unaccompanied minor
refugees arising from Article 10 (3) (a) of the Family Reunification Directive.
By opting for a child-right-centered approach, the Court goes straight to the point. Article 10 (3)(a) of the Family
Reunification Directive creates an unconditional right to family reunification for unaccompanied minor refugees. Member States have no other option than ensuring the effective realisation of such right. No matter what. This implies that an unaccompanied refugee minor shall be reunited not only with his two parents but also with his
adult sister who is completely and permanently dependent on her parents because of her serious health condition. No margin of discretion available. Moreover, in no way their right to family reunification can be submitted to the requirement of meeting the conditions laid down in Article 7(1) of the Family Reunification Directive.
Doing otherwise will amount to a violation of Article 7 of the Charter of Fundamental Right of the EU (CFR) which recognises the right to respect for private and family life and Article 24 (2) and (3) CFR which respectively
recognise the obligation to have regard to the child’s best interests and the need for a child to maintain on a regular basis a personal relationship with both his or her parents.
This Op-ed will discuss the main points used by the Court to effectively protect the right to family reunification
of unaccompanied minor refugees against those national practices that aim or have the effect of nullifying such a
right, namely 2) aging-out during the family reunification procedure 3) the period for submitting an application
for family reunification 4) the effectiveness of the right to family reunification of unaccompanied minor refugees and 5) additional requirements and finally it will provide 5) some concluding remarks. 2. Aging-out during the Family Reunification Procedure In Landeshauptmann von Wien, the unaccompanied refugee, RI, had aged out during the family reunification
procedure. The referring court wondered whether this could be a valid ground for rejecting the family reunification application.
www.eulawlive.com
4
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
While the case at hand was pending, the Court had to opportunity to clarify such a point in Bundesrepublik
Deutschland (joined cases C-273/20 and 355/20). By transposing its reasoning in A & S (case C-550/16), the
Court established a unified principle applicable in the context of Article 10 (3)(a) of the Family Reunification
Directive: the date where to assess the age of an unaccompanied minor is the date where the child applies for
international protection or for family reunification (joined cases C-273/20 and 355/20, para. 42). On such a basis, the referring should not have any further doubts: it cannot hide behind ‘delays’ in the procedure to thwart RI’s right to family reunification.
The unconditional nature of the right to family reunification pursuant Article 10 (3)(a) of the Family Reunification Directive calls for the need to respect the aim of the Family Reunification Directive which is to promote family
reunification and to ensure the effectiveness of such a right. Indeed, it cannot be made dependent on how quick or slow national authorities would process applications for international protection and family reunification. This would also call into question the principle of legal certainty and equal treatment (case C-560/20, para. 35).
Moreover, it would go against the best interest of the child as enshrined in Article 24 (2) CFR. National authorities should take into consideration the particular vulnerability of unaccompanied minors and treat urgently their applications for international protection and family reunification and certainly cannot ‘use’ delays in the processing of their application as a way to thwart their right to be reunited with their parents. 3. Period for Submitting the Family Reunification Application RI’s parents submitted their application for entry and residence for the purposes of family reunification three
months and one day after the refugee status was granted to their son. Consequently –can their application be
regarded as out of time?– asked the referring court. It is clear that taking such an approach, would have the effect
of deprive them of the possibility to benefit from the more favourable conditions laid down in Article 10(3)(a) of the Family Reunification Directive.
It is true that the Court in A & S held that an application for family reunification has to be submitted within three months in a situation where the ‘minor’ ages out during the asylum procedure (case C-550/16, para. 37). What
remained uncertain was whether such a requirement is addressed also to those refugees, like RI, who have aged out during the family reunification procedure.
The Court goes straight to the point. First, it clarifies that such a requirement is addressed only to those refugees
who have reached majority already during the asylum procedure. This is to avoid the risk that the right to family reunification may be relied on without any time limit (case C-550/16, para. 39). A risk that does not exist where the
refugee concerned reaches majority during the family reunification procedure. Second, a period for the submission
of an application for family reunification cannot begin to run when the refugee is still a minor (case C-550/16, para. 40). No time limit should therefore be imposed (case C-550/16, para. 41).
www.eulawlive.com
5
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
Such a conclusion is the logical consequence of 1) preferential regime Article 10 (3)(a) of the Family Reunification Directive creates for minor refugees in full respect of their specific vulnerability and their best interests and 2) the unconditional nature of the right to family reunification that Article 10 (3)(a) of the Family Reunification Directive establishes.
4. The Effectiveness of the Right to Family Reunification Should RI’s adult sister, TY, affected by a serious illness that makes her completely and permanently dependent on her parents be entitled to join him in Austria? If yes, on what basis? The referring court wondered.
Leaving aside the convoluted and formalist approach of the Advocate General (see Mark Klaassen and Gerrie Lodder), the Court goes straight to the point. By relying on the unconditionality of the right to family reunification
under of Article 10 (3)(a) of the Family Reunification Directive and the necessity to ensure its effectiveness, it imposed on the national competent authority the obligation to approve TY, RI’s sister, for family reunification with him at the same time as her parents. No margin of discretion available.
The Court recognises the exceptionality of the situation at hand. RI’s sister, TY, is totally and permanently
dependent on the material assistance of her parents on account of a serious illness. Therefore, granting her an entry and residence permit is the only means for enabling RI to exercise his right to family reunification with his parents (case C-550/16, para. 55).
Otherwise, RI would, de facto, be deprived of his right to family reunification with his parents pursuant Article
10(3)(a) of the Family Reunification Directive (case C-550/16, para. 56). This would go against the specific objective of Article 10(3)(a) of the Family Reunification Directive and the effective respect for the fundamental rights enshrined in Article 7 CFR and Article 24(2) and (3) of the CFR. Member States have to examine
applications for family reunification in the best interests of the children concerned with a view to materializing their right to family reunification and family unity (see for instance Eleonora Frasca and Jean-Yves Carlier ). 5. Additional Requirements In Landeshauptmann von Wien, the referring court finally wondered whether it could require the unaccompanied minor refugee or his parents to meet the conditions laid down in Article 7(1) of the Family Reunification Directive
on the ground that the parents had submitted the application for family reunification three months and one day after RI was recognized as a refugee.
It should be reminded that Article 7(1) of the Family Reunification Directive requires evidence that the refugee has accommodation regarded as normal for a comparable family, sickness insurance for him or herself and the
members of his or her family, and stable and regular resources which are sufficient to maintain him or herself and the members of his or her family.
www.eulawlive.com
6
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
The Court again goes straight to the point. In no way this can happen. Such a possibility only applies to the family reunification of adult refugee as provided in Article 12 (1) of the Family Reunification Directive. Article 10 (3) (a)
of the Family Reunification creates a separate regime for unaccompanied minor refugee (case C-550/16, para. 75). This conclusion is supported by wording, scheme and purpose of Directive 2003/86 and the requirements arising from Article 7 and Article 24(2) and (3) of the Charter (case C-550/16, para. 71).
Indeed, how could it be possibly expected that an unaccompanied refugee or his/her parents who haven’t yet joined their child in the Member State concerned able to fulfill to those conditions? ‘It is practically impossible’ (case C-550/16, para. 77).
Submitting family reunification of unaccompanied minor refugees with their parents to the compliance of
the said conditions would, in reality, deprive those minors of their right to such reunification, in breach of the requirements arising from Article 7 and Article 24(2) and (3) of the Charter (case C-550/16, para. 77) that call for the materialisation of family reunification and family unity as it is in the child’s best interests. 6. Concluding Remarks In Landeshauptmann von Wien, the Court adopts a children-rights-based approach as in A. & S., SW, BL & BC
and Belgische Staat (X.) in an attempt to truly to make the preferential regime in Article 10 (3)(a) of the Family
Reunification Directive work properly. It is certainly true that the Court does its best to protect the effectiveness right to family reunification of unaccompanied minors. Moreover, the principles arising from Landeshauptmann von Wien will help those unaccompanied minor refugees still entangled and lost in national procedures. At the
same time, it’s in the hands of the national authorities and national judges to ensure –without resistance– the
effectiveness of such a right by acting in the child best interests and solve the eventual doubts/concerns in a timely
fashion. In Landeshauptmann von Wien, RI had to wait more than four years to see his right recognised. One may wonder whether this is in line with his right to effective judicial protection.
Silvia Bartolini is a Researcher at the Jean Monnet Centre of Excellence of the University of Athens, a visiting Professor at Université Catholique de Lille and a Guest Lecturer at National and Kapodistrian University of Athens. silvia.bartolini@lacatholille.fr or sbartolini@law.uoa.gr.
SUGGESTED CITATION: Bartolini, S.; “It’s Time to Take the Right of Family Reunification of Unaccompanied Refugees Seriously.The Landeshauptmann von Wien case”, EU Law Live, 12/02/2024, https://eulawlive.com/op-ed-its-time-to-take-the-right-of-family-reunification-of-unaccompanied-refugeesseriously-the-landeshauptmann-von-wien-case-by-silvia-bartolini/
www.eulawlive.com
7
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
The Court of Justice interprets Directive 2016/680 and limitations on storage of personal data in police records (Direktor na Glavna direktsia “Natsionalna politsia” pri MVR – Sofia, C-118/22) Alberto Miglio The Opinion of Advocate General (AG) Pikamäe in case Direktor na Glavna direktsia “Natsionalna politsia” pri
MVR – Sofia (C-118/22) begins with the following question: ‘Should the retention of personal data in police records saddling the individual subject to the entry in the records with the status of permanently dangerous social deviant, potentially for his whole lifetime, be a cause for concern?’.
Understandably, both the AG and the Court of Justice, in its judgment delivered on 30 January 2024, answered
in the affirmative. However, while emphasising the need for several safeguards, the judgment refrained from imposing a rigid time limitation to the retention of data in the context of law enforcement.
The ruling concerns the compatibility of Bulgarian law with 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, read in conjunction with the Charter of Fundamental Rights.
The factual background of the case is the following. Personal data of NG were entered in the police records in the course of a criminal investigation for perjury. NG was found guilty, but he was eventually rehabilitated after
serving the sentence. When he applied for the erasure of the data, his request was rejected on the ground that legal
rehabilitation is not a ground of removal of an entry in the police records pursuant to the Bulgarian Law on the Ministry of the Interior. NG applied for a review of the administrative decision and the Supreme Administrative Court, hearing the case on appeal, submitted a request for a preliminary ruling.
At the outset, the Court of Justice found that Directive 2016/680 was applicable despite the fact that the data stored in the police registered may also be processed in the context of the protection of national security, to which the Directive does not apply. In that respect, the Court relied, as usual, on a restrictive interpretation of the national security exception.
The Court then offered a comprehensive overview of the Directive and of the principles regulating the processing of personal data in the context of law enforcement, emphasising the importance of the principle of proportionality which underpins several provisions of the Directive.
www.eulawlive.com
8
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
In assessing the compatibility of the Bulgarian legislation with Directive 2016/680, interpreted in light of Articles 7, 8 and 52(1) of the Charter of Fundamental Rights, the Court found that a provision prescribing without
any time limit the retention of data of all persons convicted of an ‘intentional criminal offence subject to public prosecution’ does not comply with the principle of proportionality because it is too broad. Rather, the period for
which the storage of personal data is necessary varies according to the nature and the gravity of the offence and to the risk of recidivism.
In that regard, whilst the offender’s rehabilitation does not automatically require that the entry be deleted from the police register, it may be a factor liable to reduce the period for which storage is necessary, insofar as it
presupposes that the individual has not committed other criminal offences after the sentence and presents a lower risk of recidivism.
Moreover, by referring to the case law of the European Court of Human Rights in addition to its own case law, the Court found that the indiscriminate retention of biometric and genetic data for all persons convicted of criminal offences runs counter to the requirement that special categories of data be processed by law enforcement authorities only ‘where strictly necessary’ (Article 10 of the Directive). As the Court noted, the storage of biometric
and genetic data must be justified on the basis of the nature and seriousness of the offence ‘or other circumstances
such as the particular context in which that offence was committed, its possible connection with other ongoing proceedings or the background or profile of the convicted person’ (para. 67).
Finally, the Court concluded that the whilst the death of the data subject may constitute a ‘time limit’ within the meaning of Article 5 of the Directive, the storage of personal data of a convicted person until his or her death can only be deemed ‘appropriate’ in exceptional circumstances and cannot be the general rule.
As is often the case with the Court’s rulings imposing limitations on data retention for law enforcement purposes, the implementation of the judgment may not be easy. On the basis of the principle of primacy of EU law over
domestic law and given that the rights of data subjects enjoy direct effect, the referring court will be obliged to
disregard the provisions of Bulgarian law conflicting with the Directive, interpreted in the light of the Charter of Fundamental Rights. An identical course of action is required of other national courts dealing with the same or with similar national legislations.
However, most of the relevant provisions of the Directive encapsulate principles that need to be implemented in
national law, rather than stand-alone rules ready to be applied to actual cases. For instance, Article 4(1)(c), i.e. the
provision on data minimisation, states that ‘Member States shall provide for personal data to be […] adequate, relevant and not excessive in relation to the purposes for which they are processed’. Similarly, Article 5 on data
storage leaves it to the Member States to ‘provide for appropriate time limits to be established’ for erasure or for a periodic review of the need for storage, and to introduce procedural safeguards to ‘ensure that those time limits are
observed’. Whilst holding that the national law under scrutiny obviously did not comply with this requirement, the Court of Justice in Direktor na Glavna direktsia “Natsionalna politsia” pri MVR – Sofia did not impose any fixed time limit for erasure or a time frame for the review to be carried out.
www.eulawlive.com
9
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
Against this backdrop, how are national courts supposed to act? Once the national provision imposing the
unlimited storage of personal data is set aside, what rule replaces it? If the domestic legislation implementing Directive 2016/680 is sufficiently specific and provides for adequate time limitations, national courts will be able
to rely on it. By contrast, if that is not the case, leaving it to the judiciary to enforce the Directive in individual cases with some generic guidance on the factors to be taken into account in the proportionality test is unlikely
to ensure its uniform application. Rather, this is a case where the national legislature should amend the relevant provisions of domestic law in order to introduce adequate limitations and procedural safeguards, including rules on periodic review of the need for storage.
Alberto Miglio is Associate Professor of European Union Law at the University of Turin.
SUGGESTED CITATION: Miglio, A.; “The Court of Justice interprets Directive 2016/680 and limitations on storage of personal data in police records (Direktor na Glavna direktsia “Natsionalna politsia” pri MVR – Sofia, C-118/22)”, EU Law Live, 15/02/2024, https://eulawlive.com/op-ed-the-court-ofjustice-interprets-directive-2016-680-and-limitations-on-storage-of-personal-data-in-police-records-direktor-na-glavna-direktsia-natsionalna-politsiapri-mvr/
www.eulawlive.com
10
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
A vague response to a vague law: The Commission’s infringement procedure against Hungary’s Defence of Sovereignty Bill Miriam Schuler On 7 February 2024, the European Commission has opened an infringement procedure against Hungary’s Defence of Sovereignty Bill. The Commission considers the Bill to violate, inter alia, ‘the democratic values of the Union; the principle of democracy and the electoral rights of EU citizens’. Being only the second infringement procedure to date in which the Commission enforces democratic values against Member States (on the other infringement action see for example here and here), it will be of vital importance to flesh out the substance of the principle of democracy under Article 2 TEU. However, as this piece will show, the European Commission yet leaves the most pressing constitutional questions unanswered.
1. Background The Hungarian Defence of National Sovereignty Bill establishes the Sovereignty Protection Office (SPO). This
Office is vested with the power to investigate activities carried out in the interest of another State or a foreign body if they could harm or threaten the sovereignty of Hungary. The core terms leading to an investigation by the SPO such as the carrying out of activities ‘influencing democratic debate’ ‘in the interest of another state’ or
‘foreign body’ to the detriment of ‘the sovereignty of Hungary’ are extremely vague and open to interpretation. Further, and whereas the Office itself does not have the power to issue sanctions, the Hungarian Defence of National Sovereignty Bill amends the Hungarian Criminal Code and makes the use of foreign funding in the context of elections punishable by up to three years’ imprisonment.
The Hungarian Defence of National Sovereignty Bill has been heavily criticised by numerous bodies and
organisations (see for example here, here, here, here and here). Roughly two months after the Bill was adopted, the European Commission has followed suit. Announcing the launch of an infringement procedure, the European
Commission considers that the Hungarian Defence of Sovereignty Bill violates inter alia ‘the democratic values of the Union; the principle of democracy and the electoral rights of EU citizens’ (see here).
Even though the list of EU law provisions violated is long, it is just as vague as the provisions of the Hungarian
Defence of Sovereignty Bill. For example, the European Commission has yet to define what democratic values of the Union are violated by the Hungarian Defence of Sovereignty Bill, where they are enshrined in the Treaties and why they are applicable to the situation at hand.
Further, the semicolon used in the Commission’s formal notice seems to indicate that the democratic values of the
Union, on the one hand, and the principle of democracy and the electoral rights of EU citizens, on the other hand,
www.eulawlive.com
11
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
are two separate things. What precisely the Commission meant, can of course only be subject to speculation. For the following analysis, however, I will distinguish between violations of the principle of democracy in the Union and (purely internal) violations of democratic values.
2. The principle of democracy in the Union and the electoral rights of EU citizens The alleged violation of ‘the principle of democracy and the electoral rights of EU citizens’ is interpreted here as meaning that the Hungarian Sovereignty Bill violates the principle of democracy in cases with a clear European
dimension, that is in cases that are governed by EU law. Given the wide scope of the Hungarian Sovereignty Bill, the list of potentially violated provisions is long:
• Article 22 TFEU: Mobile EU citizens participating in municipal elections in Hungary are likely to fall
within the scope of the Hungarian Sovereignty Bill. Any investigations launched against mobile EU citizens are likely to constitute a barrier to the exercise of electoral rights on grounds of nationality which is prohibited under Article 22 TFEU.
• Article 11 TEU guarantees public debate in all areas of EU action, demands a dialogue between EU
Commission and civil society and allows citizens to submit a citizens’ initiative. As explained in joint statement
by the Hungarian Helsinki Committee and Amnesty International, actions under Article 11 TEU, including, for example, ‘contributions to the European Commission’s annual Rule of Law Reports’ or participation in a
citizens’ initiative ‘in case it concerns a topic of public interest in Hungary’, can be investigated by the SPO. As such, the Hungarian Sovereignty Bill undermines and renders ineffective the rights guaranteed under Article 11 TEU.
• Article 14 (3) TEU, Article 12 (2) CFR and Article 6 (2) of the Act concerning the election of the members
of the European Parliament by direct universal suffrage: This is because the Hungarian Sovereignty Bill (1)
further distorts the level playing field in elections including elections to the European Parliament which might as a result be considered unfair, (2) might be applied against European political parties which under Article 12 (2) CFR have a right to ‘contribute to expressing the political will of the citizens’ and (3) might result into investigations against MEPs potentially violating their parliamentary immunity.
The provisions listed above are a good start to further flesh out the principle of democracy. However, the question raised by the Hungarian Sovereignty Bill and by democratically backsliding member states in general is another
one: Are Member States bound by EU standards of democracy even in purely internal situations? In other words, when there is no ‘European dimension’ of the case, what requirements do member states have to comply with? 3. The democratic values in the Member State The European Commission also invokes a violation of ‘the democratic values of the Union’. The use of the term ‘values’ suggests that the Commission is referring to a violation of the value of democracy, enshrined in Article 2
www.eulawlive.com
12
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
TEU. The Commission however neither qualifies what these democratic values are, in what respect the democratic value or values of the Union are violated nor how these democratic values can be operationalised in purely internal situations.
A preliminary question is, of course, whether the EU should even intervene in cases with no clear European dimension. In the Portuguese Judges Case C-64/16 the Court essentially held that Member State Courts are
bound by European standards of judicial independence because they are ‘double agents’ applying national law
but also ensuring the uniform application of EU law. Mirroring this logic, European citizens are double agents
participating not only in Union’s democratic life but also in their Member State’s democratic life by, inter alia, holding their government in check and scrutinising their governments’ EU policies. Just as we cannot split up a
Member State court’s function into domestic and European, we cannot split up the concept of EU citizens and Member State citizens: Oppressed citizens on the national level cannot be citizens enjoying democratic rights
on the Union level. European democracy requires Member State democracy. This interplay finds its expression in Article 2 TEU, according to which democracy is one of the values the Union is founded on, but is, at the same time, a value common to the member states.
For some, the principle of democracy can be operationalised by reading Article 10 TEU in light of Article 2 TEU
(see for example here). Article 10 gives concrete expression to the value of democracy and Article 2 TEU widens the scope of Article 10 and makes it applicable to purely internal situations. For others, Article 2 TEU – though
vague – can be applied as a stand-alone provision. After all, law always necessitates some sort of interpretation, whether that is interpreting a ‘specific’ treaty provision such as Article 10 or 19 TEU or a value enshrined in Article 2 TEU. As of now, we do not know which approach the European Commission will take. However, we can think of the options the European Commission does have:
As far as the investigations of the SPO are targeted against politicians standing for public office in national elections, the Commission could mirror its approach in the infringement action against Poland and rely on
Article 10 (2) TEU and Article 2 TEU, claiming (1) that the prohibition to receive foreign funding could further distort the level playing field in elections and (2) that the investigations create reputational damage for candidates
standing in elections, putting into doubt the democratic accountability of Member State representatives in the Council.
When it comes to the Hungarian Sovereignty Bill undermining a pluralist and democratic civic space, the Commission could potentially rely on Article 10 (3) TEU, Article 11 and 12 CFR and Article 2 TEU. The long list of potential Treaty provisions to be relied on shows the challenge of the Hungarian Sovereignty Bill: It
isn’t limited to an attack of the opposition, or of the media, or of the freedom of assembly. Rather, by ‘implying
that foreign interests are behind every critical position’, the Bill targets, deters and silences anyone – individuals, the media, businesses, churches, trade unions or municipalities - who opposes the government’s conception of Hungarian sovereignty. Such a pluralist and open civic space is however not fully captured or protected by any
www.eulawlive.com
13
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
of the previously listed provisions. It is not just a question of fundamental rights protection. Rather, I suggest
that the role of civil society might be an element so central to the existence of a liberal democracy that it is directly protected by Article 2 TEU. After all, Article 2 TEU refers to democracy in a pluralist society and the
Commission itself has underlined that for Member States to actually practice the value of democracy, there is a need to guarantee ‘democratic freedoms, including political pluralism‘ (see here, p. 43). As such, and considering
the vital importance of civil society for any liberal democracy, I would argue for it to be protected and enforced as one essential element of democracy under Article 2 TEU (on the enforcement of Article 2 TEU as a freestanding provision see for example here).
The difficulty to assign the guarantee of a civic space, broadly, to one of the values enumerated in Article 2 TEU might however explain why the European Commission claims that there is a violation of democratic values rather
than the democratic value. The Commission continually emphasises the inter-dependence of Article 2 TEU
values, stating that the rule of law ‘is intrinsically linked to respect for democracy and for fundamental rights:
there can be no democracy and respect for fundamental rights without respect for the rule of law and vice versa.’ This inter-dependence and overlap also finds its way into the Commissions infringement action: Indeed, the Commission assigns the infringement action to the policy area of the rule of law, maintains there is a violation
of democratic values as well as the principle of democracy and of several fundamental rights. What gets lost in
this long list of potentially violated EU law provisions is one thing: If human rights are violated, if the rule of law (here for example the principle of legal certainty and clarity) is not complied with and if democratic principles are
undermined, then the very backbones of a modern liberal constitutional democracy are attempted to be abolished. 4. Conclusion Whereas the opening of the infringement procedure by the Commission is commendable, it leaves the bigger
constitutional questions around the enforcement of the principle of democracy against Member States in the dark. It is to be hoped that the Commission pushes for an expedited procedure and that the Court sheds some light on many of the yet unresolved questions revolving the enforcement of democracy. Miriam Schuler is a PhD candidate at King’s College London.
SUGGESTED CITATION: Schuler, M.; “A vague response to a vague law: The Commission’s infringement procedure against Hungary’s Defence of Sovereignty Bill”, EU Law Live, 16/02/2024, https://eulawlive.com/op-ed-a-vague-response-to-a-vague-law-the-commissions-infringement-procedureagainst-hungarys-defence-of-sovereignty-bill-by-miriam-schuler/
www.eulawlive.com
14
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
2024 Update of ‘EU Law Live Sanctions Calculator Albrecht Wendenburg On 26 January 2024, Commission Communication, ‘Update of data used to calculate financial sanctions proposed by the Commission to the Court of Justice of the European Union in infringement proceedings’ (hereinafter
‘2024 Communication’), was published in the Official Journal. Henceforth, the Communication will apply if the Commission brings a case before the Court in infringement cases. This calls for an update of the ‘EU Law Live
Sanctions Calculator’. This simple and intuitive tool was created in 2022 to facilitate attaching an informed ‘price tag’ to possible EU law violations. [1]
The updated version of the ‘EU Law Live Sanctions Calculator’ can be accessed here: http://www.eulawlive.com/ op-ed/calculator_2024.xlsx.
The methodology underlying the calculation of financial sanctions in infringement cases has been significantly
modified by the Commission only in 2023. [2] The new methodology has been described (and criticised) elsewhere. [3]
In this Op-Ed, I will therefore limit myself to outlining the general principles now applied by the Commission
when calculation sanctions in infringement cases. Several sample calculations will then illustrate the functioning of the (updated) Sanction Calculator.
1. To start with, the Court may impose financial sanctions on a MS in infringement cases in two situations: • Firstly, where the MS has not taken the necessary measures to comply with an earlier judgment of the Court finding an infringement of Union law (Article 260(2) TFEU). This procedure can be called the ‘two-stage infringement procedure’, as there will always be a first judgment based on Articles 258 and 260(1) TFEU
which is of declaratory nature, only;
• Secondly, sanctions are possible where a MS has failed to fulfil its obligation to notify measures transposing a directive adopted under a legislative procedure (Article 260(3) TFEU). As only one judgment is required, this procedure, which was introduced with the Treaty of Lisbon in 2009, can be called the ‘one-stage infringement procedure’.[4]
2. In each of the above two procedures there are two different financial sanctions are possible, both of which systematically proposed be the Commission:
www.eulawlive.com
15
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
• The lump sum payment is meant as a repressive tool to punish the infringement which has already occurred when the Court delivers the judgment imposing sanctions.
• By contrast, the (daily) penalty payment is a preventive instrument to prompt the MS concerned to bring the infringement to an end as soon as possible after the delivery of the judgment. 3. Calculation of penalty payments Under the Commissions’ methodology, the penalty payments are the product of four factors: • The ‘flat rate amount for calculating penalty payments’ • the ‘coefficient for seriousness’ • the ‘coefficient for duration’; and • the MS-specific ‘n’-factor, varying in accordance with GDP (2/3) and population of each MS (1/3 influence).
The 2024 Communication introduces updates the first factor and fourth factor: • The ‘flat-rate amount for penalty payments’ is raised from 3,000 (in 2023) to 3,230 euros per day. • Also, the ‘n’-factor is recalibrated for each MS. For example, the ‘n’-factor for Germany is lowered (‘n’-factor
of 02, from 6.16 in 2023), while it is raised for other MS, such as Ireland (‘n’-factor of 0.61, from 0.55 in 2023), due to differing economic developments in the last two years.
(The other two factors relevant for the calculation of penalty payments remain constant under the 2024 Communication. For more details on these factors see here.
Sample calculations: As a hypothetical example, let us assume that France has failed to notify the Commission
of its transposition measures in respect to a directive both before the transposition deadline of, say, 28 February 2022 and during the entire court proceedings. (This will lead to a ‘coefficient for seriousness’ of 10, see here.) The
Commission has then decided to refer the case to the Court on 2 February 2024. This leads to a ‘coefficient of duration’ of 1.2 (12 months, see here). In this scenario, France would face daily penalties of 168,993.60 euros (see Sample calculation 1).
If that decision were taken concerning Belgium a month earlier, that country would face daily penalties of 30.250 euros (Sample calculation 2).
www.eulawlive.com
16
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
Sample calculation 1
Sample calculation 2
4. Calculation of lump sums The lump sum is the product of four factors, limited by a fifth factor: • The ‘standard flat-rate for calculating the daily amount in order to determine the lump sum’ • the ‘coefficient for seriousness’ (same as above, see point 3) • the ‘coefficient for duration’; and • the ‘n’-factor (same as above, see point 3). • A MS-specific ‘minimum lump sum’ will apply, if the product of the above four factors is lower than the
MS-specific ‘minimum lump sum’. (This will guarantee a sufficient deterrent effect and avoid purely symbolic sanctions.)
In the 2024 Communication only the first factor and the ‘minimum lump sums’ are altered: The ‘standard flat-rate’
(for calculation the lump sum) is increased to 1,080 euros per day from 1,000 euros (2023). The country-specific
‘minimum lump sum’ now ranges between 90,000 euros for Malta (84,000 euros in 2023) and 18,158,000 euros
for Germany (17,248,000 euros in 2023).
www.eulawlive.com
17
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
(The other three factors relevant for the calculation of lump sums remain constant under the 2024 Communication. For more details on these factors see here.
The ‘EU Sanctions Calculator 2024’ can also map the changes to the lump sums. In the example given above, the minimum lump sum for France (13,151,000 euros) would be exceeded (lump sum of 17,234,208 euros, see
Sample calculation 3). By contrast, in a ‘two-stage infringement procedure’ with a low ‘coefficient of seriousness’ of 3 the minimum lump sum would apply, ceteris paribus (Sample calculation 4). Sample calculation 3
Sample calculation 4
www.eulawlive.com
18
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
5. Handling the Calculator To use the Sanction calculator, one has to choose the relevant MS from a drop-down list. The relevant ‘n’-factor as well as the ‘minimum lump sum’ will then be displayed (as well as the standard flat rates which do not differ between the MS).
Additionally, the coefficient for seriousness has to be appreciated and entered into the Calculator. Finally, the respective time factor has to be entered, i.e. the ‘coefficient for duration’ (penalty payments) or the number of days ‘lump sums payments’.
All of these appreciations are fairly straightforward and predictable, relying also on Court case law (see here). That is all it takes to use the ‘Sanctions calculator’, and to attach an informed ‘price tag’ to possible EU law violations.
Albrecht Wendenburg, Dr. jur., LL.M., is Head of Unit, Federal Ministry of Finance, Germany, and Lecturer in European law at Leuphana University, Lüneburg, Germany. The views set out in this article are strictly personal. [1] See Albrecht Wendenburg, Introducing the ‘EU Sanctions Calculator’ for Infringement Cases, EU Law Live Weekend Edition 2022, No. 103. [2] Communication, OJ 2023 C 2/1. [3] See Albrecht Wendenburg, Recalibrating the deterrent effect, Commission revises sanctions methodology, EU Law Live Weekend Edition No. 138. [4] See Albrecht Wendenburg, Failure to notify national measures - The ‘one-stage infringement procedure’ (Article 260(3) TFEU) is gaining momentum, EU Law Live Weekend Edition 2020, No. 29.
SUGGESTED CITATION: Wendenburg, A.; “2024 Update of ‘EU Law Live Sanctions Calculator”, EU Law Live, 13/02/2024, https://eulawlive.com/ op-ed-2024-update-of-eu-law-live-sanctions-calculator-by-albrecht-wendenburg/
www.eulawlive.com
19
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
Member States can adopt national law imposing penalty for early termination of an energy supply contract. G (Frais de résiliation anticipée), (C-371/22) Delphine Defossez The Court of Justice rendered its judgment on a request for a preliminary ruling from the Sąd Okręgowy w
Warszawie (Poland) regarding the interpretation of Article 3, paragraphs 5 and 7 of the Directive 2009/72/EC on common rules for the internal market in electricity in G (Frais de résiliation anticipée), (C-371/22).
The case at hand concerns a 2010 contract for the supply of electricity –which was extended on 23 February 2015 until the 31st December 2016– to an agrotourism operation in K between company G– a small company of less
than 50 people– and W –a supplier. The agreement contained an early termination provision which stipulated that if company G terminated the contract early, W could require the payment of a penalty equivalent to the price of the electricity G had agreed to buy. On 30 January 2015, company G entered a contract with electricity supplier
Z S.A. for the same agrotourism operation. On 25th of February 2015, company Z informed company W of the new contract and requested the termination of the contract between G and W. On 9th March 2016, company G received an invoice for 63 959,70 PLN (approximatively 14 161 euros) as a penalty. Following the non-payment
of the invoice, W started proceedings on 21st November 2016. On 7th February 2020, company G was condemned
to pay the penalty. Company G appealed the judgment.
The key point of contention was whether Article 3, paragraphs 5 and 7 of Directive 2009/72/EC prohibit imposing
a contractual penalty on a small business customer –like company G– for the early termination of a fixed-term electricity contract when changing suppliers. Company G pointed to the fact that W did not suffer any harm
but only a loss of profit and that the penalty was, therefore, unjustified. W argued that according to Article 484 paragraph 1 of the Polish Civil Code, the penalty is independent to the harm suffer.
In its ruling, the Court concluded that the Directive does not prevent national laws allowing penalties for early termination of a fixed term energy supply contract as long as such provisions are clear, comprehensible, and freely
agreed upon. The fact that the penalty requires a company to pay the whole price of the electricity which it agreed to purchased but did not use or it did not give any criteria for the calculation of such a penalty is not against EU law. For the national law to be compliant with EU law, the law must offer a recourse mechanism –either administrative or legal– for reviewing the proportionate nature of this penalty in view of all the circumstances and reduce it –if appropriate.
In order to interpret Article 3 paragraphs 5 and 7, the Court considered the context and objectives of the Directive. Basing itself on point 51 of the Preamble, the Court noted that consumers interests are at the centre of the www.eulawlive.com
20
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
Directive. The only requirement is that consumers should be provided with clear information, according to point 52. This highlights the importance of the Preamble.
This judgment also clarifies the definition of ‘client final’ and ‘client éligible’. The former is the one purchasing
electricity for personal use while the later relates to the free choice of supplier. The Court agreed with the conclusions
of the Advocate General that Directive 2009/72 does not contain a definition of the concept of ‘consumer’ but
that it can be deduced from recitals 1 and 42 of this Directive that such term has a broad meaning and includes any ‘final customer’, namely both ‘residential customers’ and ‘non-residential final customers’, including small businesses. The Court reiterated that nothing in the Directive obliges Member States to allow a change in supplier for free for non-residential customers.
While the Court recognised that it is up to the dispute handling authority to assess the proportionality of the penalty, it gave some factors to take into consideration such as the initial duration of the contract, the remaining duration, the quantity of electricity purchased, and mitigation measures the supplier could have taken. The absence of calculation method in the Directive does not absolve Member States from respecting the overarching objectives of the Directive.
This judgment clarifies the obligations under the Directive while making clear the conditions a national law must meet to be in line with those obligations. Article 3 paragraphs 5 and 7 only require national laws to guarantee the
possibility to easily change supplier and that the contractual terms are transparent while a recourse mechanism –either administrative or legal– should be made available to review the proportionality of the penalty.
Dr. Delphine Defossez is an Assistant Professor of EU law at the Northumbria University. She is the author of “The Law and Regulation of Airspace Liberalisation in Brazil: What is the Way Forward?” As well as various articles in the field of passengers’ rights.
SUGGESTED CITATION: Defossez, D.; “Member States can adopt national law imposing penalty for early termination of an energy supply contract. G (Frais de résiliation anticipée), (C-371/22)”, EU Law Live, 12/02/2024, https://eulawlive.com/member-states-can-adopt-national-law-imposing-penaltyfor-early-termination-of-an-energy-supply-contract-g-frais-de-resiliation-anticipee-c-371-22-by-delphine-defossez/
www.eulawlive.com
21
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
Consequences of the absence in trademark law of a provision equivalent to the so-called “repair clause” provided for community design (Audi Ag v. GQ (C-334/22) Marie-Elvire de Moro-Giafferri In its recent judgment in Audi Ag v GQ (C-334/22), the Court of Justice assessed, in the light of Articles 9(2), 9(3) and 14(1)(c) of Regulation 2017/1001, firstly whether a spare part for a motor vehicle representing the shape of a trade mark was capable of fulfilling a function as an indication of origin, and secondly any limitations on the rights of a trade mark proprietor.
According to Articles 9(2), 9(3) defines the rights conferred by an European trademark, and in particular the right to prevent third parties from using in the course of trade in relation to goods and services any identical or similar signs. Article 14 of the Regulation 2017/1001 limits the effects of a trademark and states that a trademark owner
is not entitled to prohibit a third party from using a sign in the course of trade, ‘where the use of that trade lark is necessary to indicate the intended purpose of a product or a service, in particular as accessories or spare parts’.
The dispute concerns a manufacturer and seller to distributors of car radiator grilles, which include an element for inserting and mounting the AUDI emblem. This element reproduces the shape of the emblem registered as a trademark. AUDI claimed that such spare elements were infringing its trademark since their shape reproduces in whole or in part its figurative trademark consisting in four interlaced circles, i.e. the emblem of AUDI.
The defendant contested these claims, since it is an industry practice not to oppose the sale of non-original grilles incorporating a component designed for the attachment of the brand emblem.
The Polish Regional Court, the referring court, stressed that it must first determine whether the scope of
protection of the AUDI well-known trademark extends to such spare elements, which are identical by their shape
and can generate a likelihood of confusion with the AUDI trademark. In that regard, it expressed doubts on the consequences of the absence, in trademark law, of a provision equivalent to the so-called ‘repair clause’, provided for community design, and on the ability of such spare element to fulfil the function of indicating the commercial origin. In these circumstances, it decided to refer the matter to the Court of Justice for a preliminary ruling.
The Court of Justice first recalled that a repair clause such as the one provided by Article 110(1) of Regulation
6/2002 concerning Community designs does not exist in trademark law, and that this clause applies without
prejudice to the provisions of trademark law. Therefore, it should not be taken into account when interpreting the rights of a trademark owner set out by Article 9 and its limitation provided by Article 14. Then, the Court of
Justice focuses on determining the concepts of ‘signs’ and ‘use in the course of trade’ –an active behavior within a
www.eulawlive.com
22
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
commercial context within the aim of gaining an economic advantage–, to rule that the national court should first assess the identity or similarity of the sign consisting in the shape of the element of the radiator grille designed for
the attachment of the AUDI emblem with the AUDI trademark, whether or not there is a technical possibility of affixing the emblem representing the trademark without reproducing the prior trademark.
The context surrounding the use of the sign and its influence on its function of indication of origin in order to preserve the purpose of undistorted competition protected by other rights were not taken into consideration in
its assessment. Therefore, the Court does not follow the Opinion of the Advocate General, who underlined that the spare parts came from independent sources and that ‘the professional sellers do not tend to be misled as to
the origin of the radiator grilles’ and perceive the sign as a description of the characteristics of the product (an element which fulfils a technical purpose). She therefore concluded to the absence of use in the course of trade in such a case.
As regards the interpretation of Article 14, the Court of Justice considered that a distinction should be made
between the reproduction or imitation of a trademark on spare elements intended to be incorporated into the goods of the trademark owner, and the use of the trademark (without affixing it) to indicate that those spare parts are intended to be incorporated into the goods of the trademark owner.
On these grounds, the Court of Justice ruled that, when a sign identical or similar to a prior trademark consists in the shape of a spare element designed to affixed the emblem of the owner of prior rights and is not used to
designate the products as being those of the owner of rights but to reproduce as faithfull as possible its products, it is not a ‘use’ within the scope of the limitations of Article 14 of the Regulation, i.e. a necessary use to indicate the intended purpose of a product.
This interpretation reasserts the autonomy of the protection of each of the intellectual property rights. While
the exercise of each of these rights must avoid hampering the free flow of trade in legitimate products, they pursue distinct objectives. Consequently, the fact that the same product may be covered by different industrial
property rights does not mean that the limitations of each should be considered when assessing their exercise. To
hold otherwise would not only make the rules of interpretation more complex, but above all would require the
conditions of each of the rights invoked to be met cumulatively, thereby defeating the purpose of their protection.
Marie-Elvire de Moro-Giafferri is an attorney at law at the Paris Bar, specialised in Intellectual Property.
SUGGESTED CITATION: de Moro-Giafferri, Marie-Elvire.; “Consequences of the absence in trademark law of a provision equivalent to the so-called “repair clause” provided for community design (Audi Ag v. GQ (C-334/22)”, EU Law Live, 1502/2024, https://eulawlive.com/analysis-consequences-ofthe-absence-in-trademark-law-of-a-provision-equivalent-to-the-so-called-repair-clause-provided-for-community-design-audi-ag-v-gq-c-334-22/
www.eulawlive.com
23
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
States are not obliged to recognise refugee status awarded by another Member State but should ‘take into account’ this status during a new procedure (C-753/22, AG Opinion) Lucia van der Meulen On 25 January, Advocate General Medina delivered her Opinion in Case C-753/22 (Effet d’une décision d’octroi du statut de réfugié), on the positive recognition of refugee status in the European Union in light of systemic deficiencies in the Member State which granted the refugee status. This case is part of several pending cases at the
Court of Justice on similar questions (El Baheer C-288/23, Cassen C-551/23 and Generalstaatsanwaltschaft Hamm
C-352/22, an analysis of the Opinion of AG Richar De La Tour in the latter case was published on EULawLive). In this case, the Court of Justice faces another situation in which the asylum reception crises present in several EU Member States call into question the functioning of the Common European Asylum System. The widescale
problems with reception conditions in EU Member States have been demonstrated to undermine the principle
of mutual trust, which underpins the functionality of the EU’s asylum system (see N.S. and others C-411/10). These cases, so far, have concerned the extent to which asylum seekers or individuals who have been granted
subsidiary protection (see Ibrahim and others C-297/17, C-318/17, C-319/17 and C-438/17) can be transferred. In the present case, however, it has already been established that a transfer is impermissible as it would constitute
a violation of Article 4 of the Charter of Fundamental Rights. The question put forward by the German Federal Administrative Court is whether the refugee status that has been granted in Greece should be recognized in Germany.
The Court of Justice has recently made clear (C-228/21, C-254/21, C-297/21, C-315/21 and C-328/21, see analysis on EU Law Live) that Member States are obliged to recognise the decision of another Member State to
reject an asylum application. This follows from the principle that only one EU member State should be responsible for processing an asylum request. The obligation to recognise a decision to grant refugee status, however, has not been provided for in EU asylum law. This has been criticised in literature (see Mitsilegas, 2017) which is
recognised by AG Medina. However, she notes, there is no legal basis for the mutual recognition of refugee status
in EU law, neither primary nor secondary law. Moreover, an obligation for positive recognition of asylum status would undermine the principle of a single responsible Member State.
The practical implications of this finding are as follows. The German authorities cannot reject the application
as inadmissible because a status has been granted by another Member State (as prescribed by Article 33 of the Procedures Directive) since the refugee cannot enjoy his rights flowing from that status in Greece. Since there
is no obligation to recognise the status granted by Greece, the asylum application will have to be evaluated by
www.eulawlive.com
24
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
the German authorities. However, this does not mean that the Member State at hand can, in the context of the
asylum application, ignore the fact that another Member State has previously granted refugee status. Following the principle of good administration and the duty in Article 4(1) of the Qualification Directive to assess the
‘relevant elements of the application’, Member States must take into account the fact that asylum has already been granted by another Member State. In doing so, Member States are obliged to consider whether Article 34(2) of
the Dublin Regulation should be applied to gather the necessary information on the previous procedure from the granting Member State.
The Advocate General further makes note of the effect this new procedure may have on the applicant, who has already been subject to procedures in the original asylum application and likely again in determining the admissibility of their application in the second Member State. Therefore, these procedures should be considered with priority and dealt with in a timeframe ‘materially shorter’ than the usual six months under the Dublin Regulation. Moreover, if Article 34 of the Dublin Regulation is to be applied, this should be subject to a faster term than the usual one of five weeks.
In sum, the AG concludes that there is no principle of positive mutual recognition of asylum status in EU law, neither in primary EU law nor in secondary legislation. Therefore, the decision to grant asylum in one Member State does not have binding effect on another Member State. In situations where an individual cannot return to
the Member State that granted asylum because of a risk of a violation of Article 4 of the Charter, a new asylum procedure must be started. During that procedure, the AG argues, Member States do have a specific obligation to take into account the fact that the applicant has already been granted asylum in another EU Member State.
Lucia van der Meulen is a PhD Researcher at the Institute for European Law, KU Leuven. Her research is part of the ERC Project RESHUFFLE, Horizon 2020 research and innovation, grant no. 851621.
SUGGESTED CITATION: van der Meulen, L.; “States are not obliged to recognise refugee status awarded by another Member State but should ‘take into account’ this status during a new procedure (C-753/22, AG Opinion)”, EU Law Live, 1402/2024, https://eulawlive.com/analysis-states-are-not-obliged-torecognise-refugee-status-awarded-by-another-member-state-but-should-take-into-account-this-status-during-a-new-procedure-c-753-22-ag-op/
www.eulawlive.com
25
SYMPOSIUM ON THE ENLARGEMENT OF THE EU
26
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
Europe’s Search for a Democratic Dividend between Enlargement and Treaty Reform Alberto Alemanno This Op-Ed is part of an ongoing Symposium on EU Enlargement. See also previous Op-Eds by Franz Mayer and Thu Nguyen, by Gavin Barrett, by Carlos Closa, by Menelaos Markakis, by Paul Dermine, and by Ana Bobić. More contributions will follow shortly on EU Law Live.
Russia’s invasion of Ukraine has had a profound effect on the European Union, to the point of potentially redesigning both its geographical and constitutional contours. What a better opportunity for Europe’s democratic renewal?
The Russian invasion of Ukraine has produced many unintended consequences, among which the embarrassing unveiling of the absence of an EU defense and a largely incomplete energy policy.
Yet the most profound impact of the war was the smashing of the ultimate taboos of EU integration. That is the need for enlargement and corresponding institutional reform of the Union. If the pandemic led the European Union to couple its post-pandemic economic recovery with a repowered European green agenda, the Russian invasion of Ukraine is set to couple the EU inescapable expansion in the east with an inevitable profound treaty revision. In other words, the EU is once again set to reform internally to be able to expand externally.
Yet neither the reform nor the enlargement process can this time mechanically follow previous blueprints, be it the Treaty revision process leading to the Lisbon Treaty in 2009 or the previous expansion to the East in 2004 and 2007.
Let’s focus on the enlargement process. Over the past decade, the EU has been pretending to negotiate accession
with candidate countries, such as the West Balkans – which have in turn pretended to carry out the reforms required to join. Maintaining this fiction has damaged the credibility of the admissions process which has in turn confirmed the sceptics’ belief that candidate countries will never be ready.
This offers a unique chance to acknowledge the limitations of an EU enlargement system and membership
structures that have historically marginalized people’s input, in order to eventually address the legitimacy deficiency in EU integration.
Absence of popular input has been the case not only for citizens of member states but also for those from candidate countries. The last big accession waves of 2004 and 2007 fully revealed the original, unresolved ‘democratic sin’ of EU integration. By not foreseeing that citizens from candidate countries may have a say on the prospect of joining
the union, the EU has deprived itself from earning a crucial legitimating opportunity. A look at ‘illiberal’ Hungary www.eulawlive.com
27
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
suffices to gauge the costs of that omission. As shown by Ivan Krastev and Steven Holmes, behind today’s Central and East European illiberal revolution, there is a cultural, political, and democratic rejection of a top-down model imposed under a logic of imitation on countries emerging from communism (fn 1).
In sum, due to its historical neglect of any expression of popular sovereignty, at accession and in membership, the EU has given up on the most powerful legitimating source at its disposal. Seen from this perspective, the Brexit
referendum may be read as a revenge story (‘take back control’) against the EU’s atavistic scepticism toward every expression of popular input.
The next enlargement will offer a unique opportunity not only to remedy that original sin but also to replace it with a ‘European democratic dividend.’ By that I refer to the benefits, advantages, and positive outcomes that may result from a people-led choice for—and control of—European integration in each individual country.
Hence the need to radically rethink not only the EU accession process by giving voice to the candidate countries’ citizens, but also the very membership status.
To be part of the EU can no longer be all-or-nothing affair. To restore its credibility at home and abroad, the EU
must move away from the dominant yet illusory paradigm of a monolithic membership imposed from above to a more diversified approach in which each country decides to commit, from the bottom-up, to a menu of possible
manifestations and spaces of EU integration. Under this new heterogenous, multispeed, and citizen-led construct, some countries would be free to integrate more deeply in certain areas without being prevented by others from doing so, or not to without feeling pressured to do so.
By eventually surrendering some political autonomy to citizens, this new collective understanding of EU accession
and membership would entail a reset of the EU project. Candidate countries would be able to choose the degree of integration best suited to their needs and political realities while existing member states would be asked to reconsider their degree of engagement with the EU—and to do that based on their respective citizens’ wishes. One may consider, along the lines of the recent proposal by the ‘Group of 12’ — a Franco-German expert initiative —
four tiers of ‘membership’, the last two falling outside the EU altogether, could coexist. These ‘concentric circles’ would include an inner circle whose members could have even closer ties than those that bind the EU already, the EU as we know it, associate membership (that is, of the internal market only), and the looser, less demanding new European Political Community.
This multispeed construct would however not create different levels of worth or standing among countries. Instead, it would unleash an alternative geopolitical imagination capable of accommodating different levels of commitment toward EU integration that for the first time would be driven by popular choice.
While new and existing members would be free to choose which circle to join, respect for the rule of law and commitment to human rights should remain non-negotiable. As a result, the exclusion of noncompliant members
www.eulawlive.com
28
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
from any given circle could, unlike now, be foreseen and be accepted as legitimate since under the proposed model all members would have their relationships with the EU determined by the participation of citizens.
This fresh and pragmatic approach to EU democratic expansion appears more attuned to today’s political realities than the original EU formula that still applies.
Under this regenerative dynamic, it would be a self-aware citizenry, not the individual states nor the EU institutions, to choose whether and the extent to which their country should engage in supranational decision-making and under what rules.
Alberto Alemanno is Jean Monnet Professor of European Law at HEC Paris and a Europe’s Futures Fellow at IWM (2023-24).
(fn 1) Ivan Krastev and Steven Holmes, The Light that Failed, Pegasus, 2020.
SUGGESTED CITATION: Alemanno, A.; “Op-Ed: “Europe’s Search for a Democratic Dividend between Enlargement and Treaty Reform”, by Alberto Alemanno, EU Law Live, 12/02/2024,
www.eulawlive.com
29
SYMPOSIUM COMPETITION CORNER: SYMPOSIUM ON EU LAW AND SPORT
30
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
Who’s Next in the Queue? Sports Cases Pending before the European Court Marcos Araujo In ESL C-333/21, ISU C-124/21 P and Royal Antwerp C-680/21, the Court of Justice of the European Union
(‘the Court’ or ‘CJEU’) has clarified the limits that EU law imposes on sports organisations, furthering the
principles already set since the seventies in cases, such as Walrave 36/74 or Donà 13/76, and the later, but no
longer recent, judgments in Bosman C-415/93 or Meca-Medina C-519/04, in addition to adopting significant pronouncements relevant to competition law and the treatment of arbitration more broadly.
The decision to rule on the three cases simultaneously by a Grand Chamber reflects the intention to seek consistency in an area that has traditionally been tackled on a case-by-case basis. However, there is only so much that case accumulation can do. As these judgments were dictated, other procedures on sports matters had already
been placed before the CJEU – cases that may be affected, to a lesser or greater degree, by the judgments now adopted and eventually qualify or develop their solutions.
This contribution identifies these pending cases, which have been ordered by case number and, therefore, from older to newer. It does not cover cases not yet listed on the Court’s webpage, such as the Diarra/Charleroi dispute
or the more recent Hesperange case. Information on these two intriguing cases is available in Guillermo Íñiguez’s excellent Op-Ed at EU Law Live here. NADA, C-115/22 The Unabhängige Schiedskommission Wien (Independent Arbitration Commission, hereafter ‘USK’) lodged on
17 February 2022 a reference concerning the impact of the GDPR on national rules providing for the publication of the identity of an athlete having been found to infringe anti-doping rules. The question is of significant
interest for the intersection between rights to information and privacy; however, for the purposes of this note, it is especially relevant to look at the procedural question if an ‘independent arbitration commission’ may refer a
preliminary question under Article 267 TFEU, especially after the findings in ISU C-124/21 P concerning the role of arbitral courts when enforcing sports rules.
In her Opinion of 14 September 2023 on this matter, which evidently predated ISU, AG Capeta notes that, of the
different elements that are relevant to that determination of whether the USK may refer questions to the Court, the most difficult one concerns its independence. In her view, that requirement must be the same for Article 267 TFEU purposes as when independence is evaluated in the context of Article 19 TEU (rule of law) cases (see
para 57 of her Opinion), which enables tapping into the lessons learned in this latter field. From that viewpoint,
www.eulawlive.com
31
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
AG Capeta considers that the USK is independent, referring to both internal elements such as the process of appointment and means to influence its members, and to external elements which discard a risk of interest in the outcome of the case. She goes as far as placing the USK as a last instance court arguing that Austrian law
places the USK into the judicial structure of that country. As concerns the substance of the questions, AG Capeta
accepts that the GDPR does not impede in this case the disclosure of the identity of the athlete sanctioned under anti-doping rules.
There is little doubt that the decision in this case, and especially if the USK is recognised as a court within the
meaning of Article 267 TFEU, will be read carefully by sport arbitral institutions wishing to emulate its features. Being aware of that, the Court may consider sending a message, either to keep the door closed to arbitral tribunals making preliminary references (as the Court did with respect to investment arbitration in Achmea when it chose
not to follow AG Wathelet’s Opinion) or, conversely, establishing a framework whereby certain arbitral tribunals, with defined features, may make preliminary references. A good occasion to choose either route that justifies paying close attention to the judgment on this matter. FIFA, C-650/22 This is a reference by the Cour d’appel de Mons lodged on 17 October 2022. The case originates in the termination
of employment of BZ, a football player, with Lokomotiv Moscow. While that dispute was under way, the player was prevented from accepting an offer by a Belgian football team by reason of certain provisions of FIFA Regulations on the Status and Transfer of Players (‘the RSTP’). The applicant considers these obstacles contrary to Articles 45
and 101 TFEU and seeks compensation for the loss of earnings (especially of offers of employment from clubs). The case is run against FIFA and the Belgian sports football association, the URBSFA.
The reference identifies the illegal constraints in the RSTP as: (i) the principle that the player and the club wishing
to employ him are jointly and severally liable in respect of the compensation due to the club whose contract with the player has been terminated without just cause, as stipulated in Article 17.2 of the FIFA RSTP, in conjunction
with the sporting sanctions provided for in Article 17.4 of those regulations and the financial sanctions provided
for in Article 17.1; and (ii) the ability of the association to which the player’s former club belongs not to deliver
the international transfer certificate required if the player is to be employed by a new club, where there is a dispute between that former club and the player (Article 9.1 of the RSTP and Article 8.2.7 of Annex 3 to the RSTP).
As initially formulated, the case relies mainly on Bosman C-415/93, where FIFA’s transfer rules were examined by the Court. The 21 December cases have added interest to the case in various respects. Among them, there is a
question as to how will the Court read the eligibility constraints (especially the release of the international transfer certificate) in this case; in contrast with ISU C-124/21 P, their goal would not initially be impeding competing
events, but arguably reducing the risk of disputes resulting from transfers, potentially at a cost for the procedural
rights of the players. Another element of interest is the legitimate expectations claimed by football organisations, who argue that the Commission had blessed the current transfer rules following Bosman – good luck with that one!
www.eulawlive.com
32
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
The hearing for this case took place on 18 January 2023. RRC Sports, C-209/23 RRC Sports results from a reference from the Landgericht Mainz (Germany) lodged on 31 March 2023. The
case discusses the conformity of FIFA’s Football Agent Regulations (‘the FFAR’) with competition law and the General Data Protection Regulation or GDPR.
The dispute concerning the FFAR has been widely reported (see for instance the extensive comment of Tim
Lichtenberg here), which facilitates the task of summarising a very long story. In short, the FFAR contain various limitations on football agents, including notably limits on the fees that they may validly agree with football
players and conflict-of-interest provisions. Unsurprisingly challenged under competition law arguments, the Landgericht (Regional Court) in Dortmund suspended on 24 May 2023 their operation in Germany (see here)
and a Commercial Court in Spain likewise suspended these rules in Spain last November (see here), but the courts
in Netherlands rejected similar requests. Besides these interim measures, the conformity of the FFAR with EU law has resulted in two preliminary references, both from German courts: this case C-209/23 from Landgericht
Mainz, and case C-428/23 by the Federal Supreme Court, discussed below. Following these challenges, FIFA
announced on 30 December 2023 the suspension of these rules pending the resolution of these cases (see here). There is also the parallel initiative of a most interesting ruling from the Court of Arbitration for Sport (TAS/
CAS) which has looked at the compatibility of the FFAR with competition law, which I have discussed elsewhere
(see here) and another award by an UK panel discussing the same issues under UK competition rules adopted in December 2023 (available here).
The impact of the 21 December judgments over the FFAR dispute is at the same time evident and complex. If there was any doubt, the question of the general applicability of competition law and the weakening of a ‘European sports model’ defence based on Article 165 TFEU seem clear; on the other, the three judgments, and
especially Royal Antwerp C-680/21, provide room for Article 101(3) TFEU arguments and promise a challenging
debate over the nature of ‘by object’ of the disputed limitations. And indeed the question if competition law issues may validly be arbitrated before the TAS/CAS will be read differently following ISU C-124/21 P. ROGON, C-428/23 ROGON is the second preliminary reference concerning the regulation of sports agents by football associations
alluded to some lines above, sent this time by the German Supreme Federal Court or Bundesgerichtshof (BGH) on 11 July 2023.
In contrast with RRC Sports, which as noted discusses FIFA’s FFAR conformity with competition rules and
the GDPR, this reference concerns the conformity with Articles 101 and 102 TFEU of the Reglement für die
Spielervermittlung; (the RfSV) adopted by the German Football Association (Deutscher Fußballbund e. V., DFB). However, as the reference notes, the RfSV was issued ‘in the wake of FIFA’s adoption of regulations on
www.eulawlive.com
33
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
working with players’ agents’ and contains similar limitations as the FFAR. The main difference concerns the
extension of the control that is sought in this case: the BGH questions the conformity with competition rules of multiple aspects of these regulations, including the registration obligation imposed on agents, the obligation
imposed on agents to submit to various statutes, regulations and rules of FIFA and DFL; the obligations that
natural persons must assume when registering legal persons; the prohibition to have a share in future transfer
proceeds of the club in the case of an inward transfer; the prohibition on commissions for services in respect of minors; and an obligation to disclose fees paid and payments made to agents. This suggests that the BGH
considers necessary to have precise guidance on the criteria to comprehensively evaluate the activities of (DFB and eventually FIFA).
In the request for a preliminary reference, the BGH appears to express concerns with the consequences of a potentially overly generous reading of the regulatory deference of FIFA in the Opinion of AG Rantos in
Superleague, and in particular on the power of sports organisations to regulate issues that “do not directly concern the competitive sport itself and (…) concerns undertakings that are not members of the sports association and
are therefore unable to influence the content of those regulations” (see para 30 of the request), revealing a concern over the regulatory reach of the sport organisation in the light of principles of representative governance. If that
was intended to be a message for the Court, the judgments of 21 December suggest that it was received loud and
clear. At the same time, the fact that the BGH has made such a long and detailed list of potential obstacles in regulation is a clear invitation for the Court to go further and specify in greater precision if the requirement to have transparent, objective and non-discriminatory criteria when limiting economic activities is constrained to the organisation of rival competitions or if it should be applied more broadly. A decision to watch indeed. Royal Football Club Seraing, 600/23 This recent case lodged on 2 October 2023 comes from the Cour de cassation de Belgique (Court of Cassation, Belgium) in a most interesting procedure case that discusses both regulations adopted by FIFA and UEFA, on the one hand, and the mandatory arbitration rules before the TAS/CAS on the other.
The case originates in the adoption by FIFA of its ‘Regulations on the Status and Transfer of Players’ (STP
Regulations) and particularly the prohibition, announced on 26 September 2014, of third-party ownership of players’ economic rights. The applicant in the original proceedings, Doyen Sports, had signed agreements seemingly contrary to these prohibitions, for which he was fined on 4 September 2015 by FIFA’s Disciplinary
Committee. The appeal against that decision was dismissed on 7 January 2016 by the FIFA Appeal Committee. On 9 March 2016, the applicant lodged an appeal against that decision of 7 January 2016 before the Court of Arbitration for Sport, in accordance with an arbitration clause in FIFA’s statutes. That appeal was dismissed in an award dated 9 March 2017. On 15 May 2017, the applicant filed an application for annulment of the award before the Swiss Federal Tribunal. That court dismissed that application by judgment of 20 February 2018.
In parallel to these proceedings in Switzerland, on 3 April 2015, Doyen Sports had introduced a claim before Belgian courts requesting a declaration that a total prohibition of the practices as provided for in the STP www.eulawlive.com
34
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
Regulations would be unlawful under EU law and more specifically the right to the free movement of capital, the right to the freedom to provide services, the right to the free movement of workers and competition law; to declare as null and void any regulation containing such a total prohibition; to order UEFA to amend its ‘Club Licensing
and Financial Fair Play Regulations’ so as to make them compatible with the practice of third-party ownership or third-party investment, and to pay it compensation for the damage suffered as a result of the application of
the STP Regulations. By judgment of 17 November 2016, the Brussels Commercial Court declined jurisdiction to hear the applicant’s claims. The appeal introduced before the Court of Appeal was dismissed by a judgment delivered on 12 December 2019.
In the appeal against this latter judgment introduced before the Court of Cassation, the applicant argued that the
compulsory arbitration before the TAS/CAS would be contrary to EU law, referring to the European Commission
decision in ISU (see para 57 of that decision). The applicant also submitted that, following Achmea, C-284/16, a Member State is in breach of its obligation to ensure the full effectiveness of EU law and its autonomy if it
consents to arbitration in a manner that deprives judicial review with the possibility of referring questions for a
preliminary ruling to ensure consistency with the public policy of the European Union (Achmea, paras 54 and 55). It will immediately be noted that this case raises two groups of issues. One concerns the rules from sports
organisation, and in particular the legality of the ban on the ownership of the players’ economic rights; on the other, the binding force of final judgments from an arbitral authority, which are recognised legal force under
Belgian law. It is clear that both will be influenced by the judgments of 21 December 2023, which clearly limit the regulatory powers of sports organisations and TAS/CAS arbitration (albeit without quoting Achmea, unlike AG Rantos’ Opinion in ISU). Lots to unpack, however, on the potential justification of the restriction here anyway. Other Sports Cases Pending before the CJEU Besides the cases discussed in the preceding paragraphs, there are other appeals and preliminary references before
the Court in the field of sport where the 21 December judgments are of at best indirect relevance. Among them, the following two deserve a mention here. Nikita Dmitrievich Mazepin, T‑743/22 On 9 March 2022, the EU added the name of Nikita Dmitrievich Mazepin to the list of persons, entities and bodies subject to restrictive measures following the military attack of the Russian Federation over Ukraine. The
reason was that Mr Mazepin is the son of Dmitry Arkadievich Mazepin, General Director of JSC UCC Uralchem, which sponsors the Haas F1 Team.
While this case is still pending before the General Court, it has already made headlines as a result of the adoption of several interim measures. In the first decision (T‑743/22 R), the General Court suspended in part the original decision affecting the applicant, arguing inter alia that the Council had not produced conclusive evidence based
on the applicant’s conduct to explain why, apart from the family connection, he had to be regarded as being
www.eulawlive.com
35
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
connected with his father after the termination of his contract as a Formula 1 driver and the sponsorship agreement
concluded between Uralkali and Haas F1 Team. Following this Order, the Council readopted its decision on 13
March 2023, only to find that new decision also suspended by the Order of 19 July 2023 T‑743/22 R II. After a fresh reintroduction of Mr Mazepin (son) in the list by the Council, the President if the GC granted him another suspension on 7 September 2023; however, following an appeal by the Council, on 28 September 2023 the Vice-
President of the Court of Justice set the order of the President of the GC aside and referred the case back to
the president of the GC, who dismissed the interim measures that had been initially granted through an Order
of 27 October 2023, T-743/22 R III. The last on this list is the Order of 22 December 2023, T-743/22 R IV, which again rejects a request that had been granted by an initial order by the president of the GC on 3 October
2023, corrected following an appeal by the Council decided by the Vice-President of the Court of Justice on 22 November 2023.
This convoluted series of decisions highlight the technical difficulties encountered in the judicial review of restrictive measures adopted following the Russian attack on Ukraine, as well as the differing perspectives of the General Court and the Court of Justice. That said, it is hard to see any impact of the judgments of 21 December 2023 on the case of Mr Nikita Mazepin. Arce, C-365/23 This very interesting reference from the Augstākā tiesa (Senāts) (Supreme Court (Senate) of the Republic of
Latvia), lodged on 9 June 2023, concerns an agreement between a young sportsperson and his parents, on one side, and a service provider, on the other, following the refusal to pay the agreed amounts.
The request for a ruling does not specify the sport concerned, vaguely mentioning ‘a particular sport’. The services
to be provided included ‘coaching and training, sports medicine and psychology services, career guidance – development, application and monitoring of a career plan and the conclusion of contracts between the sportsperson and sports clubs –, marketing and legal and accountancy services.’ The remuneration, agreed when the sportsperson
was 17, amounted to 10% of all net income from playing activities in the sport in question, advertising, marketing and media appearances, apparently during the term of the agreement (15 years).
The referring court seems inclined to consider these clauses as abusive, but has doubts concerning the applicability to the situation of Directive 93/13 on unfair terms in consumer contracts, both on the consideration of the sportsperson as a consumer and on the temporal applicability of the Directive. In that latter respect, the referring
court draws attention to the fact that the transposition of the relevant part of the Directive into national law came into force after the agreement was concluded.
While from a different legal perspective to that of sports regulation, the case raises questions on how to best protect
sportspersons from potential abuse by professionals. That connects this reference with some of the arguments
raised in the cases discussed in section 2 above on football agents (especially RRC Sports and ROGON) and perhaps even with the prohibition of ownership that is at the core of Royal Football Club Seraing.
www.eulawlive.com
36
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
Closing remarks In the coming months, the Court of Justice will issue several important judgments in the field of sport. These decisions will complement the pronouncements of 21 December with clarifications, additions and perhaps raise
new questions, fuelling a much needed conversation about this special field in the realm of law. The questions
already placed before the Court will perhaps clarify when sports arbitral bodies may make preliminary references, and also consider the compatibility of FIFA’s regulations on sports agents or FIFA’s transfer rules with EU
competition law. The answers from the Court will likely be as hotly debated as the 21 December judgments themselves and prompt additional questions, as the upcoming Diarra/Charleroi and Hesperange cases show.
Not all will be equally content with the answers, but many will coincide that the judgments of 21 December have inaugurated a new era where the legal treatment of sports organisations has become part of our conversation, a place they may not leave soon.
Marcos Araujo is a Spanish practitioner, lecturer, and Chairperson Elect of the Spanish Association for the Defence of Competition (AEDC). Marcos holds a PhD from the University of Glasgow.
SUGGESTED CITATION: Araujo, M.; “Who’s Next in the Queue? Sports Cases Pending before the European Court”, EU Law Live, 14/02/2024, https://eulawlive.com/competition-corner/op-ed-whos-next-in-the-queue-sports-cases-pending-before-the-european-court-by-marcos-araujo/
www.eulawlive.com
37
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
Taking EU (Competition) Law outside of the Court of Arbitration for Sport (Case C-124/21 P International Skating Union v Commission) Antoine Duval and Ben Van Rompuy Though overshadowed by the European Superleague Company (C-333/21) judgment of Grand Chamber of the
Court of Justice (‘CJ’) of 21 December 2023, the ruling rendered on the same day in the International Skating
Union (‘ISU’) v European Commission case (C-124/21 P) also demands particular attention. The main part of the
ISU judgment similarly addresses the issue of ex ante control over the organisation of third-party competitions, but a small yet important section of the ruling is specific to it. It relates to the Court of Arbitration for Sport
(CAS) and the bindingness of CAS arbitration clauses, which are ubiquitous in the statutes and regulations of international sports governing bodies (SGBs). Our contribution focuses on this issue.
The CAS, seated in Lausanne, Switzerland, is widely regarded as the “supreme court” of international sports dispute resolution. It primarily functions as an appeal body as it is exclusively competent to review de novo the
final decisions of any SGB that imposes a CAS arbitration clause on its members (in 2022: 644 appeals were lodged, accounting for 80% of its caseload). Hence, the CAS has the exclusive competence to weigh in on the
most high-profile international sports cases. CAS awards are final and binding and may only be challenged before the Swiss Federal Tribunal (SFT) on a limited number of grounds set forth in Article 190(2) of the Swiss Private
International Law Act. These grounds include incompatibility with Swiss public policy, but the SFT takes the
view that this does not include EU (competition) law. The SFT’s review is also extremely deferential to the CAS, with its awards being overturned only in rare instances and almost exclusively on procedural grounds.
In recent years, however, athletes and clubs have started to challenge in various courts the exclusive jurisdiction of the CAS, as well as the fairness of CAS proceedings. Notably, in 2018 the European Court of Human Rights
(ECtHR) in Mutu and Pechstein v Switzerland recognised that CAS arbitration, at least insofar as disciplinary
decisions are appealed there, constitutes forced arbitration. Therefore, the Strasbourg court held that CAS proceedings need to fully comply with Article 6(1) ECHR. More recently, in the Semenya v Switzerland case, the
Third Chamber of the ECtHR concluded that Switzerland had violated Article 8 and 14 read together, as well as Article 13 of the Convention due to the failure of the SFT to review the compatibility of a CAS award (and the underlying DSD Regulations imposed by World Athletics) with the ECHR.
The European Commission’s decision on the ISU Eligibility Rules (AT.40208) and the CJ’s ruling on the action for annulment brought by the ISU must be seen within this broader context of mounting distrust vis-à-vis the
CAS. It comes on the heels of several pending cases – such as the Lassana Diarra and Claudia Pechstein cases -
www.eulawlive.com
38
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
in which athletes have attempted, with limited success until now, to relitigate before the national courts of the Member States disputes decided by the CAS, claiming that the decisions and underlying regulations conflict with
EU law. Hence, the Grand Chamber seized the opportunity in ISU v Commission to weigh in on the relationship
between the jurisdiction of the CAS and EU competition law. In the following sections, we aim to explain how
CAS arbitration became a part of the case and reflect on the wider impact of the judgment on the structure and operation of transnational sports law and governance.
1. The European Commission’s ambiguous critique of CAS arbitration The European Commission’s decision on the ISU Eligibility Rules of 8 December 2017 took many by surprise, even those involved in transnational sports governance who should have been in the know about the case. For
over a decade and a half, the Commission had shied away from formally investigating the rule-making practices
of SGBs, with only two of the largest and most popular sports (football and Formula One) previously in its crosshairs. Now, for the first time, the Commission issued a prohibition decision finding that a SGB, governing
a small Olympic sport, had violated the EU antitrust rules. The fact that the Commission chose not to impose a fine for an infringement that lasted 19 years further underscored the unprecedented nature of that decision.
Another unexpected element of the decision was its section 8.7, in which the Commission conducted an analysis
of the appeal arbitration rules contained in the ISU’s Constitution. Previous Commission statements on the
case had made no mention of arbitration. The decision also made clear that the ISU was found to have infringed Article 101 TFEU by adopting and enforcing its Eligibility Rules in the context of speed skating. The arbitration
rules were not part of that infringement. Yet the relevant section, which follows the conclusions concerning the application of Article 101(1) TFEU, was apparently inserted ‘for the sake of completeness’ (T-93/18, para. 132). In it, the Commission expressed worry that the compulsory recourse for athletes to CAS arbitration may shield anti-
competitive ineligibility decisions of the ISU from effective judicial review by EU-based courts. Consequently, the Commission concluded that the arbitration rules “reinforce” the restrictions of competition caused by the Eligibility Rules. In the event the ISU would choose to maintain a pre-authorisation system, it could only
effectively bring the infringement to an end if it also substantially amended its arbitration rules (AT.40208, para. 339).
The Commission’s designation of the mandatory use of CAS arbitration as a distinct but reinforcing factor, a novel concept for antitrust law, was bound to draw criticism. However, its ambiguous stance on CAS arbitration was not
an outlier. It has been a recurring theme in its decision-making. For instance, in two decisions rejecting sportsrelated antitrust complaints about inter alia CAS arbitration clauses, the Commission similarly tried to walk a thin line between endorsing the CAS and critiquing it (see here and here). On the one hand, it acknowledged
the legitimate role of the CAS as an institution for resolving international sporting disputes. On the other hand, it stressed that the conferral of exclusive jurisdiction on the CAS may serve to shield anti-competitive practices from EU competition law scrutiny. In such cases, the limitation of access to ordinary courts may even be viewed
as part of the antitrust violation itself. This does raise the question of what structural solution the Commission has
www.eulawlive.com
40
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
in mind to eliminate that risk without compromising the effectiveness of the CAS arbitration system. In previous
cases, the Commission insisted that arbitration remains voluntary and does not prevent recourse to the national courts (see here and here). In its decision on the ISU Eligibility Rules, however, it did not provide any guidance on how the arbitration rules should be amended.
2. The GC and AG Rantos: in the CAS, we trust It turns out, the CAS has some supporters in Luxembourg. In December 2020, the General Court (GC) largely dismissed the ISU’s action for annulment of the Commission’s decision, but it did overturn the decision’s operative
part to the extent it made the lawfulness of the ISU’s pre-authorisation system conditional on the amendment of
the arbitration rules. This could have been just a technical matter: because the arbitration rules were not directly
implicated in the infringement, the Commission could not require the ISU to change them (T-93/18, paras. 171-173). However, the GC went a step further and determined that the Commission was wrong to consider that the arbitration rules reinforced the anti-competitive effects of the ISU Eligibility Rules. The GC observed
that the exclusive and mandatory use of CAS arbitration ‘may be justified by legitimate interests linked to the specific nature of the sport’ (para. 156), notably the need for a quick, economic, and uniform dispute resolution system in international sport. And while it acknowledged that the arbitration rules do not permit skaters (or third-party
organisers) to have access to the national courts to seek annulment of anti-competitive ineligibility decisions (or refusals to grant authorisation) the Court emphasised that alternative legal remedies remain available. Skaters
and organizers could file complaints with national competition authorities or the European Commission, whose
decisions can be reviewed by national or EU courts (para. 160). Furthermore, they retain the right to pursue damages claims in national courts (paras. 157-159). These options would ensure that the effectiveness of EU competition law, as such, is not undermined.
When the ISU appealed the GC’s judgment in so far as it dismissed its action at first instance, the two complainants
in the case, Mark Tuitert and Niels Kerstholt, along with EU Athletes, the federation of athlete associations and player unions, brought a cross-appeal challenging the validity of the GC’s findings regarding the ISU arbitration rules. Advocate General Rantos in his assessment of the cross-appeal was rather sanguine about the need to
recognise the bindingness of a CAS arbitration clause. Ultimately, he concurred with the GC that the mandatory
use of the CAS appears justified to avoid fragmentation of international sports dispute resolution. In his words, ‘[i]t would be difficult to imagine the organisation or conduct of any sports discipline or event if each participant (athlete or sports club) had the possibility of challenging some aspect of such an event on any legal basis before national courts or
other judicial bodies’ (para. 158). Nevertheless, even this part of his Opinion did not escape the dire fate of almost all of AG Rantos’ musings.
3. The CJ: in the SFT, we distrust (for EU competition law matters) As the European Commission had not called into question the existence or independence of the CAS or even its exclusive jurisdiction to review ISU decisions, the CJ took care to delineate these matters from its narrow focus on
www.eulawlive.com
41
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
the role played by the SFT. According to the CJ, the GC erred in law by failing to (adequately) examine whether
the CAS arbitration rules allowed for effective judicial review of compliance with the EU antitrust rules, which are public policy provisions of EU law. Notably, the Court emphasised that CAS arbitration is imposed unilaterally
on athletes, rendering effective judicial review ‘particularly necessary’ (C-124/21 P, para. 193) to safeguard their
rights. This is where CAS arbitration falls short. As the Commission had established, the SFT does not meet the standards outlined in the CJ’s Eco Swiss jurisprudence (C-126/97). Its review of CAS awards does not extend
to compliance with Articles 101 and 102 TFEU and the SFT, being a court external to the EU legal system, cannot make preliminary references under Article 267 TFEU. The CJ further reprimanded the GC for suggesting
that alternative remedies, such as potential access to public enforcement or damages claims, could compensate
for this lack of effective judicial review or the inability to seek (interim) injunctive relief from national courts, which may be particularly important for ‘persons practising professional sport, whose career may be especially short’
(paras. 201-203). Consequently, the CJ set aside the part of the GC judgment pertaining to CAS arbitration. Giving final judgment in the matter, it then summarily dismissed the ISU’s appeal that had prevailed before the
GC. Remarkably, the Court disregarded the absence of a direct link between the eligibility and arbitration rules. It simply acknowledged that the Commission’s assessment of the arbitration rules in its decision was correct and that, therefore, it was entitled to consider that this reinforced the infringement and necessitated corrective measures (paras. 228-229).
4. Challenges and outlook First, the silver lining for the CAS: the CJ solely took aim at the SFT’s shortcomings and refrained from calling into question the legitimacy of CAS arbitration. However, its judgment in ISU v Commission inevitably has
implications for the position of CAS in the institutional system of governance of international sports. The
Commission’s prohibition decision had only addressed the specific interplay of CAS arbitration clauses and the enforcement of the ISU Eligibility Rules. The CJ has now elevated this issue to a broader, more general concern.
For athletes, clubs, and other applicants deriving rights from the EU antitrust provisions (and other fundamental provisions in the EU treaties amounting to European public policy), the immediate consequence of the judgment is that it empowers them to bypass the CAS and seek to protect those rights before the national courts of the
Member States. After all, the validity of CAS arbitration clauses is “impeached” by the fact that the requirements
for effective judicial review cannot be met by the SFT. Similarly, even when a decision has been appealed to the
CAS, the judgment should make it easier for a claimant to subsequently challenge the recognition or enforcement of the award for reasons of public policy. There are two caveats. Firstly, the competence of the courts of the
Member States may still be contested on private international law rules (such as the Lugano Convention when the claimant is only indirectly affected by the decision). Secondly, this enhanced access to justice applies only to cases where EU (competition) law may be applicable. It would not cover, as the CJ noted, ‘disputes concerning
merely the sport as such and therefore not falling under EU law’ (C-124/21 P, para. 190). However, as the Court
also recognises, in a professional sporting context, disciplinary decisions, as well as their underlying rules and
www.eulawlive.com
42
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
regulations, have considerable economic implications. While proving a breach Articles 101 or 102 TFEU may
be challenging, such a violation may at least be asserted, which would be sufficient to trigger access to the courts. For SGBs, the risk of a multiplication of national court proceedings will no doubt be a cause for concern. Indeed, national courts will be less deferential to SGBs than the CAS, which has so far never found a sporting rule or practice to violate EU competition law. Ultimately, much will depend on the rigor with which the courts will
examine the decisions of SGBs under the EU antitrust rules. However, as explored elsewhere in this symposium, the judgments in ISU, ESLC, and Royal Antwerp do appear to place a stringent evidentiary burden on SGBs to
offset a prima facie case of competitive harm, especially when the Wouters exception is not available. In any event,
the main implication of the judgment for SGBs is that it restricts their ability to use the CAS as a shield to ward off EU (competition) law challenges or, at the very least, to impose exorbitant litigation costs and delays onto athletes seeking redress in national courts by challenging their jurisdiction.
Finally, what might be the impact for the CAS? In terms of its caseload, the consequences will likely be limited. Currently, the CAS deals with few disputes involving EU law. Most of its cases involve appeals against decisions
of the FIFA Dispute Resolution Chamber and first instance anti-doping sanctions. The former are usually contractual disputes between clubs and players, where parties prefer to turn to the CAS due to the ease of
enforcing its awards with FIFA’s support. As for the latter, the CJ’s Meca-Medina judgment (C-519/04 P) does not suggest a promising outlook for potential EU competition law challenges. In short, the ISU v Commission judgment is unlikely to threaten its survival. However, it might diminish its strategic importance in the eyes of
the SGBs. This could motivate them to advocate for reforms within the CAS. A potential solution could be to establish an EU law chamber specifically tasked with handling appeals involving claims that SGBs’ regulations
or decisions inter alia violate EU (competition) law. This chamber could have its seat in an EU Member State, subjecting CAS awards to review by the relevant national court and thus satisfying the CJ’s requirements of access to effective judicial review. This would reinstate the full bindingness of CAS arbitration clauses and limit the proliferation of EU (competition) law challenges before national courts throughout the EU.
Antoine Duval is Senior Researcher at the T.M.C. Asser Institute, the Netherlands, where he heads the Asser International Sports Law Centre and the Doing Business Right project. Ben Van Rompuy is Assistant Professor of EU competition law at Leiden University. Disclaimer: the authors advised and represented the complainants in the proceedings before the European Commission (Case AT.40208 – ISU’s Eligibility Rules) and have contributed to their cross-appeal against the ISU v Commission ruling of the General Court (Case T-93/18).
SUGGESTED CITATION: Duval, A. and Van Rompuy, B.: “Taking EU (Competition) Law outside of the Court of Arbitration for Sport (Case C-124/21 P International Skating Union v Commission)”, EU Law Live, 11/02/2024,
www.eulawlive.com
43
THE LONG READ
44
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
Mutual trust under the European Arrest Warrant and ongoing challenges for fundamental rights. Navigating through risks in troubled waters: proposal for a unique reasoned risk-based test Cecilia Rizcallah 1 How should a national judge proceed when confronted with a European Arrest Warrant (hereafter ‘EAW’)2 that, if executed, would lead to the separation of a mother from her young child? Should the execution of a EAW be carried out against an individual whose mental health renders them unsuitable for incarceration? These are
examples of intricate dilemmas recently adjudicated by the Court of Justice. They pose intricacies as they juxtapose two legitimate objectives: the safeguarding of fundamental rights on the one hand, and the efficacy of criminal cooperation, crucial for ensuring security in the Area of freedom, security, and justice, as well as upholding the fundamental rights of victims, on the other hand.
For quite some time, attention has been focused on such conundrum which, in a broader context, raises questions
about the reconciliation of the principle of mutual trust between the Member States of the European Union with the protection of fundamental rights and, more generally, EU values.
This predicament carries a certain paradox. The bedrock of the mutual trust principle rests on Member States
upholding these values, including fundamental rights. Why, then, should there be a need to ponder the conciliation
of these two imperatives, given their inherent interdependence? The answer lies in the counterintuitive reality that, despite its foundation on respect for fundamental rights, the implementation of the mutual trust principle
introduces numerous risks to these rights. When national authorities, possibly with the assistance of the Court
of Justice, must implement mutual trust, they therefore conduct a risk analysis, and make a decision based on this assessment.
This is particularly the case in criminal matters, especially with regard to the EAW mechanism. This well-known instrument enables Member States to request, from another one of their peers, the transfer of an individual for the prosecution or execution of a sentence. In this scenario, the executing state must demonstrate confidence in the issuing state, executing the EAW almost automatically. However, what is to be done when, despite the veil of trust, the executing judge cannot ignore that executing a EAW may pose risks to the fundamental rights of the individual concerned or associated third parties?
1. Professor of European Law and Human Rights at the UCLouvain Saint-Louis – Bruxelles and associate researcher at the Belgian National Fund for Scientific Research and at the Institute for European Law of the KU Leuven. 2. Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States Statements made by certain Member States on the adoption of the Framework Decision [2002] OJ L 190/1.
www.eulawlive.com
45
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
As underscored, this issue is far from novel and has already sparked extensive discussion.3 Nonetheless, it remains far from exhausted, continuing to provoke numerous inquiries and prompting the Court of Justice to navigate through its intricacies judiciously.
This Long-Read provides an occasion to succinctly assess the situation in light of recent judgments from the Court of Justice on this matter. In this regard, it turns out that different approaches are developed by the Court
depending on the risk posed by the EAW (I). After exploring these various approaches, we will provide some
food for thought on leaving aside these different perspectives in favor of a single reasoned risk-based test (II). Although we acknowledge that this proposal may not resolve all the difficulties related to the implementation of the principle of mutual trust, the objective is more modestly to encourage reflection to enrich the discussion on the topic (III).
I. From one test to another, seeking consistency in the Court of Justice’s approaches For several years now, the Court of Justice has been engaged in delineating the circumstances that may warrant an exception to the execution of a EAW, in particular in the interest of safeguarding fundamental rights. Striking
the right balance proves to be a difficult endeavour: by setting aside mutual trust to protect fundamental rights, another consequential challenge arises—the risk of impunity. Indeed, when the execution of a EAW is declined, the individual in question may evade either prosecution or the enforcement of a sentence, given that, in most cases, this can only occur in the state that issued that arrest warrant. This risk differs from other areas governed
by the principle of mutual trust. For instance, when rejecting a Dublin transfer in the framework of the Dublin
Regulation4 due to concerns about the rights of an asylum seeker in the state responsible for the asylum application, another Member State can assume responsibility. Thus, deviating from the principle of mutual trust in this context does not entail the same risks as in criminal matters.
That probably explains why the Court of Justice has not developed precisely the same approaches in these two
areas. Indeed, the conditions for setting aside mutual trust appear, in several respects, stricter when dealing with the EAW context. While this can be understood considering the risks of impunity it entails, it may still raise
questions, as the protection of fundamental rights should also be ensured vis-à-vis persons suspected or accused in criminal proceedings.
3. See, among others, C. Rizcallah, The principle of mutual trust in European Union law. An essential principle in the face of a crisis of values (Bruylant, 2022); E. Xanthopoulou, Fundamental Rights and Mutual Trust in the Area of Freedom, Security and Justice. A Role for Proporitonality (Hart publishing 2020) and -K. Lenaerts, ‘La vie après l’avis: Exploring the principle of mutual (yet not blind) trust’, CMLRev (2017) p. 805-840 4. Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) [2013] OJ L 180/31.
www.eulawlive.com
46
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
The initial pivotal decision in this matter was delivered in the Aranyosi and Căldăraru case,5 later confirmed in
several judgements including Dorobantu.6 In this instance, the Court of Justice acknowledged that an exception
to the execution of a EAW could be warranted due to the presence of a risk of inhuman and degrading treatment stemming from inadequate detention conditions in the issuing state. However, to uphold the efficacy of the EAW, the Court of Justice devised a rigorous two-step test. Firstly, (i) the executing authority must establish the existence of systemic or generalised deficiencies, or deficiencies affecting certain groups of people, or certain
detention centres, concerning the conditions of detention in the issuing Member State. Subsequently, (ii) the
authority must demonstrate that, upon surrender, the individual in question will be confronted to a genuine and individualised risk of inhuman or degrading treatment. To assess this risk, the executing authority is required to contact the issuing authority to acquire precise information on the conditions under which the individual is to be detained. Only under these strict conditions can a refusal to execute be justified based on risks associated with detention conditions.
This two-step test has latter be implemented with regard to the right to a fair trial. In the LM case,7 the Court
determined that the execution of a EAW could be declined only if there are (i) systemic or generalized deficiencies
related to the judiciary in the issuing state that are likely to undermine the ‘essence’ of the right to a fair trial, encompassing the right to judicial independence, and (ii) compelling and well-substantiated reasons demonstrating the presence of a specific and individualized risk for the person in question to be subjected to that risk.
Despite encountering criticism, particularly due to the complexities faced by national authorities in its implementation, the two-step test has consistently found affirmation in numerous judgments.
An exception to this trend emerges in a recent ruling, delivered in the E.D.L. case.8 The case concerned a EAW,
issued for the purpose of carrying out criminal proceedings whose execution could pose a serious danger to the
mental health of the person concerned due to his inability to be incarcerated. Contrary to previous rulings, the
Court of Justice deemed that a one-step test could be sufficient to set aside the principle of mutual trust in this context. According to the Court, the sole risk of inhuman and degrading treatment resulting from an individual’s
personal health situation can justify not executing the EAW. Therefore, there is no need to examine overall state of the healthcare system within or outside the prison environment in the issuing State. In other words, even in presence of a suitable healthcare system for detainees in the issuing State, the execution of the EAW may be refused if the individual situation of the person so requires.
The adoption of a one-step test may have come as a surprise. Why, in this specific case, not take into account
the general state of the penitentiary healthcare system of the issuing state? The rationale behind the two-step examination approach, whether addressing deficiencies in detention conditions or the judicial system, is rooted in 5. Joined Cases C-404/15 and C-659/15 PPU, Aranyosi and Căldăraru, EU:C:2016:198. 6. Case C-220/18, Dorobantu, EU:C:2018:589. 7. Case C-216/18 PPU LM, EU:C:2018:586. 8. Case 699/12, E.D.L., EU:C:2023:295. www.eulawlive.com
47
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
a principle of shared responsibilities guided by mutual trust. The executing State is not responsible for evaluating the presence of an individualised risk of a fundamental rights violation, as this issue falls within the purview of the functional legal system of the issuing State. Similarly, systemic deficiencies that do not result in an individualized
risk in the issuing state should not be the concern of the executing state. The executing state may only adress the
concrete consequences arising from the execution of the EAW in circumstances where both the systemic and the individual risk are present.9 In the presence of systemic problems, one can indeed presume that the individual risk
will not be adequately addressed by the problematic system. This is the rationale behind the two-step approach.
Nevertheless, the Court seems to have considered that this logic should not apply in the E.D.L. case, perhaps
because it aimed to maintain consistency with its jurisprudence related to the Dublin system. In the CK case,10 it
had indeed ruled that even in the absence of systemic deficiencies in the asylum system of the responsible state, the risk of a violation of Article 4 of the Charter due to the individual health condition of the applicant was sufficient to set aside trust and, therefore, prohibit the transfer (in this instance, it also involved an asylum seeker with a mental illness).
While this stance is comprehensible, it introduces a layer of complexity to the coherence concerning exceptions to mutual trust within the context of the EAW.
Another ruling, even more recent, reinstates the two-step test with vigor. The central query in the GN case11
was whether a EAW could be set aside given that its execution would have separated young children from their mother. In this context, according to the Court, the execution of the EAW can be refused, solely:
- ‘Where the executing judicial authority called upon to decide on the surrender of a person in respect of
whom a European arrest warrant has been issued has evidence indicating that there is such a risk on account
of either systemic or generalised deficiencies in the conditions of detention of mothers of young children or of the care of those children in the issuing Member State, or deficiencies in those conditions affecting
more specifically an objectively identifiable group of persons, such as children with disabilities, that authority must ascertain, specifically and precisely, whether there are substantial grounds for believing that the persons concerned will run that risk on account of those conditions’ (paragraph 45). And - That those deficiencies ‘are liable to have an impact on the conditions of detention of the person who is the
subject of the European arrest warrant or of the care of his or her children, and whether, having regard to their
9. On the issue of the systemic and the particular in EU law, see R. Gadbled and C. Rizcallah, Special Issue of the German Law Journal, “The systemic and the particular in EU law”, 2023, available open access. 10. Case C-578/16 PPU, C.K., EU:C:2017:127 11. Case C-261/22, G.N., EU:C:2023:1017
www.eulawlive.com
48
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
personal situation, there are substantial grounds for believing that that person or his or her children will run a real risk of breach of those fundamental rights’ (paragraph 48).
In the view of the Court, the principle of mutual trust indeed implies ‘a presumption that the conditions of
detention of the mother of young children and of the care of those children in the issuing Member State are
appropriate to such a situation, whether in prison accommodation or in the context of alternative arrangements
ensuring that that mother remains available to that Member State’s judicial authorities or that those children are placed outside the prison accommodation’ (paragraph 38). It is only in case of rebuttal of this presumption that the
individual risk faced by the person concerned and their children should be assessed by the executing judge. Again, it is only if the systemic and particular risks are materialised that trust should be set aside.
As previously highlighted, the strict conditions surrounding the principle of mutual trust, particularly within the
criminal sphere, are justified by the overarching goals of safeguarding security and combating impunity. However,
the rationale behind the Court’s diverse approaches in these cases remains challenging for us to fully grasp. Additionally, it appears less than clear for national authorities tasked with implementing this jurisprudence, given
the complexity of navigating through various protection standards. These standards not only differ within the different EU law domains (e.g., criminal vs. asylum fields) and depending on the type of risk (e.g., risk because
state of mental health vs. risk because of detention conditions or lack of judicial independence) but also differ
from those imposed by the European Court of Human Rights. We may wonder how can national authorities
be expected to adeptly manage these distinct tests in a context where European law is not thoroughly mastered, and their workload is already overwhelming? More than being concerned about the coherence of jurisprudence, what raises the most questions for us is thus its practical implementation on the ground. For this reason, we have contemplated potential solutions aimed at encouraging the development of more transparent tests for national authorities.
II. Proposal for a unique ‘reasoned risk-based test’ In order to enhance the coherence of the principle of mutual trust and facilitate its implementation by national authorities, we propose to develop a unique ‘reasoned risk-based test’, centered on a sound risk analysis.
As mentioned earlier, the Court of Justice employs different approaches, at times focusing on individual risk
assessment and at other times requiring an evaluation of the state’s judicial or detention system before assessing individual risk. We propose streamlining this process into a one-step test that concentrates on the real risk faced by the individual.
Our advocated method relies on a individualised risk analysis, involving characterising the exposed fundamental
right, assessing the severity of exposure, and considering the potential vulnerability of the person concerned. Factors like minority, health, or migratory status should in this framework be considered. The risk of setting aside mutual trust (such as the risk of impunity), should be part of the risk analysis.
www.eulawlive.com
49
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
The risk’s severity is evidently contextual, influenced by the existence (or not) of a protective environment of
fundamental rights. Within this context, the former second step of the test is integrated: an evaluation of the state’s (judicial, detention, health…) ‘system’ is also conducted and is taken into account by the risk analysis. In
other words, the evaluation of the state’s ‘system’, which is crucial for trust, could be directly integrated into the
assessment of the individual’s risk. A system with systemic issues will in this sense be considered less trustworthy. Thus, eliminating the two-step test doesn’t mean neglecting systemic failures in risk assessment. Moreover, in applying the principle, national authorities communicate with counterparts, seeking assurances for fundamental rights respect. The soundness of a system should in this context play a role in providing assurances, demonstrating the absence of systemic failures.
Adopting such an approach would not only bring readability, coherence and simplicity, but will also align
methodologically with that of the European Court of Human Rights, a standard Member States must adhere to, even in the implementation of EU law. The European Court of Human Rights indeed prioritises individual risk assessment, while considering the legal context in which the risk arises. Consequently, a malfunctioning system would logically be deemed riskier than a functional one.
In the context of this new method, the principle of mutual trust does not disappear. It is reflected in a clearly defined burden of proof. Trust should be demonstrated, unless the risk is clearly demonstrated.
In this regard, the technique used in EU antidiscrimination law could be a source of inspiration. Several directives in this field indeed establish a reversal of the burden of proof when there are indications suggesting the prima facie
existence of discrimination.12 In other words, in the presence of such indications, it becomes incumbent upon the individual accused of potential discrimination to establish that they have not engaged in such conduct. Within the
framework of mutual trust, one could envisage that, when confronted with systemic deficiencies, it becomes the
obligation of the state seeking to invoke mutual trust to demonstrate that these deficiencies will not jeopardise the individual subject to the measure. Such an approach would afford greater protection to the fundamental rights of
individuals, who often find themselves in challenging circumstances when tasked with proving the existence of a risk that affects them individually.
The proposed method can be schematised as follows:13
12. See, e.g., Article 10 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. 13. For a more in-depth exploration of this method, see, C. Rizcallah, The principle of mutual trust in European Union law. An essential principle in the face of a crisis of values (Bruylant, 2022).
www.eulawlive.com
50
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
PRIMA FADE EVIDENCE OF THE EXISTENCE OF RISKS (DUE TO SYSTEMIC DEFICIENCIES)
REVERSAL OF THE BURDEN OF PROOF, BURDEN SHIFTS TO THE STATE/PERSON WILLING TO BENEFIT FROM MUTUAL TRUST THAT HAS TO DEMONSTRATE THE INEXISTENCE OF AN INDIVIDUALISED RISK
DEFINITION OF THE RISK
NO PRIMA FADE EVIDENCE
NO REVERSAL, FULL BURDEN RESTS ON THE PERSON WILLING TO SET ASIDE MUTUAL TRUST THAT HAS TO DEMONSTRATE THE EXISTENCE OF AN INDIVIDUALISED RISK
III. Concluding thoughts The suggested proposal is certainly not a cure-all. The implementation of the principle of mutual trust, due to the variety of risks it can entail, is inherently a highly complex task. In this context, the EU can be proud to have
very effective instruments in the field of criminal cooperation, despite these challenges. Although mutual trust is fragile, it is undeniable that, at least concerning the EAW, one can say that this mecanism works quite well.
Nevertheless, the current system of limitations poses practical challenges due to the complexity of implementing
these exceptions that could in our view be weakened with the adoption of the proposed test. Indeed, national
authorities may struggle to determine whether a breach or risk of breach of fundamental rights justifies waiving the principle of mutual trust due to varying conditions established by the Court of Justice’s jurisprudence.
For this reason, we wish to offer avenues for considering a new, more practicable test. The proposed method, which focuses on risk analysis, helps avoid these various approaches and, moreover, aligns with the standards of
the European Convention on Human Rights. This approach is centered on the consideration of individualised risk, taking into account any assurances provided by the Member State in which trust must be placed.
It should be emphasised that this approach is not hostile to trust; on the contrary, it requires taking seriously into account the consequences of not applying mutual trust. In the criminal context, for instance, the risk of
human rights violation must be weighed against the risk of impunity. This approach has long been adopted by the European Court of Human Rights (or ‘Strasbourg Court’). In the case of Romeo Castano,14 the Strasbourg Court for instance condemned Belgium for not executing a EAW, bypassing mutual trust. According to the Strasbourg
14. ECtHR, Romeo Castaño v. Belgium, judgment of 9 July 2019, Application no. 8351/17.
www.eulawlive.com
51
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
Court, this refusal, which resulted in a violation of the fundamental rights of the victims, was not justified by the potential risks for the convicted person’s fundamental rights.
Advocating for the abandonment of the two-step test is thus not a plea against mutual trust, it is a call for a more
reasoned and, therefore, stronger and enduring trust between the Member States, respectful of fundamental rights which form its bedrock.
SUGGESTED CITATION: Cecilia Rizcallah: “Mutual trust under the European Arrest Warrant and ongoing challenges for fundamental rights. Navigating through risks in troubled waters: proposal for a unique reasoned risk-based test.”, EU Law Live Weekend Edition nº 174, https://eulawlive. com/weekend-edition/weekend-edition-no174/
www.eulawlive.com
52
HIGHLIGHTS OF THE WEEK
53
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
Spain appeals against General Court’s judgment on Stockdale v Council and Others case Monday 12 February
The Kingdom of Spain filed an appeal against the judgment delivered by the General Court in the case of Stockdale v Council
and Others (C-728/23 P), contesting the ruling made on the admissibility of the first head of claim seeking annulment of the termination decision and compensation for damage. Read on EU Law Live
Court of Justice to rule on comparative advertising in online insurance platforms Monday 12 February
Official publication was made of a request for a preliminary ruling from the Landgericht München I (Germany), lodged
on 17 November 2023 concerning the permissibility of comparative advertising on online insurance comparison platforms, specifically focusing on the use of grading or points system: HUK-COBURG Haftplicht-Unterstützungs-Kasse (C-697/23). Read on EU Law Live
Court of Justice to rule on comparative advertising in online insurance platforms Monday 12 February
Official publication was made of a request for a preliminary ruling from the Landgericht München I (Germany), lodged
on 17 November 2023 concerning the permissibility of comparative advertising on online insurance comparison platforms, specifically focusing on the use of grading or points system: HUK-COBURG Haftplicht-Unterstützungs-Kasse (C-697/23). Read on EU Law Live
Preliminary ruling request concerning purchaser’s right to compensation against the vehicle manufacturer for selling vehicles equipped with a prohibited defeat device, published in OJ Monday 12 February
Official publication was made of a request for a preliminary ruling from the Landgericht Ravensburg (Germany) lodged on 9 November 2023 involving multiple lawsuits against Volkswagen AG (VW) regarding the installation of prohibited defeat devices in vehicles, as per Regulation 715/2007: Volkswagen (C-667/23). Read on EU Law Live
www.eulawlive.com
54
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
Action seeking annulment of Commission’s decision ordering restorative measures against merger of Illumina and GRAIL Monday 12 February
Official publication was made of an action, brought on 22 December 2023, by Illumina against the European Commission
Commission: Illumina v Commission (T-1190/23), by which the applicant claimed, in essence, that the Court should annul, in whole or in part, the Commission’s Decision C(2023) 6737 final of 12 October 2023 ordering measures to restore the
situation prior to the concentration pursuant to Article 8(4)(a) of EU Merger Regulation (Case M.10939 ILLUMINA / GRAIL).
Read on EU Law Live
Court of Justice to rule on the failure to decide on an asylum application within the statutory time limit Monday 12 February
Official publication was made of a request for a preliminary ruling from the Raad van State (Netherlands) lodged on 9 November 2023 concerning the interpretation of point (b) of the third subparagraph of Article 31(3) of Directive 2013/32/ EU on common procedures for granting and withdrawing international protection: Izmir (C-662/23). Read on EU Law Live
Action brought by Servier seeking financial compensation against the Commission, published in OJ Monday 12 February
An action, brought on 12 December 2023, by Servier and Others, seeking financial compensation from the European Commission, was officially published in the OJ: Servier and Others v Commission (T-1152/23). Read on EU Law Live
Request for preliminary reference on the interpretation of Article 18(1) of Brussels I Regulation, published in OJ Monday 12 February
Official publication was made of a request for a preliminary ruling from the Amtsgericht Wiesbaden (Germany), lodged on 31 October 2023, by which the interpretation of Article 18(1) of Brussels I Regulation has been sought: RSD Reise Service Deutschland (C-648/23). Read on EU Law Live
www.eulawlive.com
55
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
Council adopts novel rules on management of immobilised assets and reserves of Russia’s Central Bank by Central Securities Depositories Tuesday 13 February
The Council adopted new rules concerning the obligations of Central Securities Depositories (‘CSD’) holding assets and reserves of the Central Bank of Russia (‘CBR’) that are immobilised as a consequence of EU’s restrictive measures. Read on EU Law Live
ESA decides to close case against Norwegian restrictions to subcontracting in public procurement Tuesday 13 February
On 7 February, the EFTA Surveillance Authority (‘ESA’) closed an own-initiative case against Norway for placing certain limitations on subcontracting in public procurement. Read on EU Law Live
ECtHR upholds ban on ritual slaughter without stunning in Belgium Tuesday 13 February
The European Court of Human Rights (ECtHR) delivered its judgment in the case Executief van de Moslims van België
and Others v. Belgium (applications nos. 16760/22 and 10 others) concerning an alleged violation of the freedom of religion, within the context of a ban on the ritual slaughter of animals without prior stunning in the Flemish and Walloon Regions of Belgium.
Read on EU Law Live
ECtHR: Russia’s data storage laws overreach, violate privacy rights Tuesday 13 February
The European Court of Human Rights (ECtHR) delivered its judgment in Podchasov v. Russia (no. 33696/19), a case concerning Mr. Podchasov, a user of Telegram, a messaging application which was listed as an “Internet communications
organiser” by the Russian State, therefore obliged by law to store all communications data for a duration of one year and the
contents of all communications for a duration of six months and to submit those data to law-enforcement authorities or security services in circumstances specified by law, together with information necessary to decrypt electronic messages if they were encrypted.
Read on EU Law Live
www.eulawlive.com
56
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
Commission approves merger of Asiana and Korean Air, subject to fulfilment of commitments Tuesday 13 February
The European Commission approved the proposed acquisition of Asiana Airlines Inc. (‘Asiana’) by Korean Air Lines Co., Ltd (‘Korean Air’), in accordance with the EU Merger Regulation, conditional upon full compliance with the remedies offered by Korean Air.
Read on EU Law Live
Commission grants flexibility to farmers in land use regulations Tuesday 13 February
The European Commission formally adopted a regulation granting a partial exemption for European farmers from the conditionality rule on land lying fallow. Read on EU Law Live
Commission closes investigation into State guarantee granted by Denmark and Sweden for the construction of a fixed rail-road link Tuesday 13 February
The European Commission concluded that the State guarantee granted by Denmark and Sweden for the construction of the Øresund fixed rail-road link does not constitute new aid, in the context of EU State aid rules. Read on EU Law Live
Commission closes market investigations on Apple’s iMessage and Microsoft’s services Tuesday 13 February
The European Commission concluded four market investigations under the Digital Markets Act (DMA), determining that Apple’s messaging service iMessage and Microsoft’s online search engine Bing, web browser Edge, and online advertising service Microsoft Advertising should not be classified as gatekeepers for core platform services. Read on EU Law Live
Commission Decision establishing the European Artificial Intelligence Office, published in OJ Wednesday 14 February
The European Commission, recognizing the rapid evolution and potential risks of artificial intelligence (AI), established the European Artificial Intelligence Office (the ‘Office’), aiming to oversee the development, use, and regulation of AI technologies within the EU. Read on EU Law Live
www.eulawlive.com
57
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
Commission Notice providing Guidance to Applicants of Veterinary Medicinal Products, published in OJ Wednesday 14 February
Official publication was made of a Commission Notice concerning Guidance to Applicants of Veterinary Medicinal Products, particularly concerning Regulation (EU) 2019/6. Read on EU Law Live
Agreement reached for enhanced maritime accident investigations in Europe Wednesday 14 February
The Council presidency and European Parliament negotiators reached a provisional agreement to revise the 2009 directive on the investigation of accidents in the maritime transport sector. Read on EU Law Live
Annual Single Market and Competitiveness Report, published by the Commission Wednesday 14 February
The European Commission released its latest Annual Single Market and Competitiveness Report, evaluating the strengths and challenges facing the European Union’s (EU) competitiveness. Read on EU Law Live
Novel rules on fisheries in the North-East Atlantic approved by the representatives of the Member States Wednesday 14 February
The representatives of the Member States gave their approval to an agreement reached between the Council’s and the Parliament’s negotiators on updated fisheries measures in the North-East Atlantic Fisheries Commission (NEAFC) area. Read on EU Law Live
Commission and national consumer protection authorities find social media influencers rarely indicate advertising content Wednesday 14 February
The European Commission and national consumer protection authorities of 22 Member States, Norway and Iceland released
the results of a screening of social media posts from influencers, finding that nearly all (97%) of these influencers posted commercial content but only one in five systematically indicated that their content was advertising. Read on EU Law Live
www.eulawlive.com
58
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
Commission Notice: The 2024 annual Union work programme for European standardisation, published in OJ Thursday 15 February
The Commission Notice for the 2024 annual Union work programme for European standardisation highlights the objectives, policies, and specific standards intended for the year, was officially published in the Official Journal. Read on EU Law Live
Commission Implementing Regulation on use of digital proof of origin for products originating from Brazil, published in OJ Thursday 15 February
Official publication was made of Commission Implementing Regulation 2024/567 of 14 February 2024 amending Implementing Regulation (EU) 2020/761 with regard to the use of digital proof of origin for products originating from Brazil and the management of tariff quotas. Read on EU Law Live
Vacancy Notice: Director at the General Secretariat of the Council Thursday 15 February
Official publication was made of a vacancy notice for a director, with experience in EU policy making and the EU legislative
process, and a good knowledge of EU institutional issues, who will be serving at the Directorate-General for Transport, Energy, Environment, Education of the General Secretariat of the Council. Read on EU Law Live
EDPB’s clarification on main establishment and concerns over CSAM regulation’s privacy implications Thursday 15 February
The European Data Protection Board (EDPB) clarified, among other things, and in response to a request by the French Data Protection Authority (DPA), the notion of a controller’s “main establishment” within the EU, which determines the lead supervisory authority in cross-border data protection cases. Read on EU Law Live
Council adopts position regarding proposed directive amending rules on use of digital tools and processes in company law Thursday 15 February
The Council adopted its negotiating mandate on amending rules to expand and upgrade the use of digital tools and processes
in company law, which aim to make company’s data more easily available, enhance trust and transparency in companies across Member States, create more connected public administrations, and reduce red tape for companies and other stakeholders in cross-border situations.
Read on EU Law Live www.eulawlive.com
59
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
ECtHR: No violation of the ECHR in Jarre v. France and Colombier v. France concerning a legislative provision which granted French heirs excluded from a succession Thursday 15 February
The European Court of Human Rights (ECtHR) delivered its judgments in Jarre v. France and Colombier v. France concerning
a legislative provision which granted French heirs excluded from a succession governed by foreign law a compensatory deduction right from the estate located in France. Read on EU Law Live
Enhancing AML/CFT Supervision: Regulation for central database management, published in OJ Friday 16 February
Commission Delegated Regulation 2024/595 supplements Regulation 1093/2010 concerning the European Banking
Authority (EBA) with specific regulatory technical standards aimed at improving the Anti-Money Laundering and CounterTerrorist Financing (AML/CFT) central database. Read on EU Law Live
EU reaches agreement for cleaner shipping: revised directive on ship-source pollution Friday 16 February
In an effort to enhance maritime safety and cleanliness within the EU, negotiators from the Council presidency and the European Parliament reached a provisional agreement on a revised directive targeting ship-source pollution as part of the broader ‘maritime safety’ legislative package. Read on EU Law Live
Commission Notice of initiation of anti-subsidy proceedings against Moroccan imports of aluminium road wheels, published in OJ Friday 16 February
Official publication was made of a Notice of initiation of an anti-subsidy proceeding concerning imports of certain aluminium road wheels, originating in Morocco, concerning alleged subsidy practices involving direct transfer of funds and potential direct transfers of funds or liabilities, government revenue forgone or not collected, and government provision of goods or services for less than adequate remuneration. Read on EU Law Live
www.eulawlive.com
60
The Week
ISSUE Nº14 12-16 FEBRUARY 2024
Anti-dumping proceedings initiated in regard to imports of glass fibre yarns originating from China Friday 16 February
The Official Journal of the EU published a Notice of initiation of an anti-dumping proceeding concerning imports of glass fibre yarns (‘GFY’) originating in the People’s Republic of China, following the European Commission’s receipt of a complaint pursuant to Article 5 of Regulation (EU) 2016/1036. Read on EU Law Live
Commission approves State aid to fund Important Project of Common European Interest on developing hydrogen infrastructure Friday 16 February
The Commission approved, under EU State aid rules, a third Important Project of Common European Interest (‘IPCEI’) to
support hydrogen infrastructure, thereby boosting the supply of renewable hydrogen, reducing dependency on natural gas, and helping to achieve the objectives of the European Green Deal and the REPowerEU Plan. Read on EU Law Live
www.eulawlive.com
61