The Week Nº15

IN-DEPTH:

RTL Nederland (C-451/22): Civil Aviation Confidentiality and Freedom of Expression and Information

Giovanni De Gregorio and Sümeyye Elif Biber

The genuine links requirement – both a win and a loss for Member State competence in the sphere of nationality law: Case C-689/21, X (Loss of Union Citizenship)

Katarina Hyltén-Cavallius

Confirmation in Österreichische Datenschutzbehörde that the GDPR applies to Member State Parliaments

Karen Mc Cullagh

A judgment of the Court of Justice can constitute a new element justifying a fresh examination of the substance of the subsequent asylum application. Case C-216/22, a strengthening of the legal position of the asylum seeker

Aniel Pahladsingh

Access to justice: Costs of environmental litigation should not be prohibitively expensive (C-252/22)

Miguel Saldivia

SRB’s calculations for SRF’s contributions got annulled due to methodological reasons

Marco Bodellini and Giulio Giacomo Cimini

COMPETITION CORNER: SYMPOSIUM ON LAW AND SPORT

The Court of Justice moves and then fixes the goalposts on how EU law applies to sport

Dr. Andrea Cattaneo and Professor Richard Parrish

Legality of UEFA’s Prior Authorisation System in C-333/21 European Super League

Dr. Katarina Pijetlovic

THE LONG READ:

A Rulebook for Future Pandemics

David Pérez de Lamo

HIGHLIGHTS OF THE WEEK

IN-DEPT H

RTL Nederland (C-451/22): Civil Aviation Confidentiality and Freedom of Expression and Information

Giovanni De Gregorio and Sümeyye Elif Biber

On 18th January 2024, the Court of Justice of the EU (‘the Court’) dealt with a case originated by an information request asserted by the Dutch media companies, RTL Nederland and RTL Niewus, from the Dutch minister van Justitie en Veiligheid (Minister for Justice and Security, Netherlands) regarding the downing of Malaysia Airlines Flight MH17 in 2014 while flying over Eastern Ukraine. In this case, the Court addressed the scope of the right to access information as protected by Article 11 of the Charter of Fundamental Rights and, broadly, the right to know in a democratic society.

The request of RTL was refused by the Minister for Infrastructure and Water Management on the basis of the rules on the prohibition of disclosure, limited to interested parties and for aviation safety purposes established by Regulation No 376/2014 while excluding the general rules on public access to administrative documents established by the Law on Government Information (Public Access). Furthermore, in the appeal, the Minister also relied on Article 7(2) of the Law on Aviation in the Netherlands to dismiss the complaint. Nonetheless, according to RTL, such laws do not impose an absolute and complete prohibition on the disclosure of information, thus questioning the limit of confidentiality rules, their compatibility with national laws, and their relationship with general rules on public access. This view led the Dutch Council of State (Raad van State) to refer a preliminary reference to the Court of Justice, asking mainly about the interpretation of Article 15(1) of Regulation No 376/2014 on the confidentiality obligation in the light of the right to freedom of expression and information enshrined in Article 11 of the Charter and Article 10 ECHR, and about the limit of national legislation restricting access to that information.

Freedom of Expression and Information in the EU Charter

Before focusing on the case, it is worth noting that freedom of expression stands as a cornerstone of individual progress and democratic society. At its core, this fundamental right serves as a catalyst for personal growth, fostering critical thinking, creativity, and the exchange of diverse ideas. In a democratic framework, freedom of expression ensures people can hold their governments accountable, participate in decision-making processes, and challenge the status quo when necessary. Thus, safeguarding and promoting freedom of expression is not merely a matter of individual rights but a crucial pillar of democratic governance and individual flourishing.

Article 11 of the EU Charter guarantees this right and states that ‘1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.2. The freedom and pluralism of the media shall be respected.’

The Article classifies two different rights, namely freedom of expression and freedom and pluralism of the media. According to the first paragraph of the article, freedom of expression includes three elements: the right to hold opinions, the right to impart information and ideas, and the right to receive information and ideas. Pursuant to Article 52(3) of the Charter, the meaning and scope of this right are as the same as those guaranteed by the ECHR. The CJEU and the Strasbourg Court have recognised the significance of freedom of expression in a democratic society. In his Opinion in case Damgaard (C-421/07), Advocate General Ruiz-Jarabo Colomer, considered the jurisprudence of the Strasbourg Court and underlined the high importance of media in terms of its role as a ‘watchdog’ which ‘enables public opinion to monitor the public authorities’ (point 81). However, freedom of expression is not an unlimited right and is subject to a limitation regime outlined in Article 52(1) of the Charter, which the judgment we examine in this post demonstrates.

Confidentiality Regime of the EU Regulations in the Field of Aviation Safety

The Court of Justice firstly focused on the extent of the confidentiality regime under Article 15(1) of Regulation No 376/2014 through systematic interpretation. It underlined that the ‘details’ of occurrences cover all ‘information’ regarding ‘occurrences which endanger or could endanger an aircraft, its occupants or any other person, whether they be incidents, serious incidents or accidents’, including the ‘evaluation’, the ‘analysis’, and the ‘follow up’ to be carried out by national authorities as well as the ‘remedial action’ to be taken (para. 50). This interpretation means that the confidentiality obligation under Article 15(1) of this Regulation applies to all information on occurrences. Moreover, the Court of Justice clarified that the Member States must refrain from disclosing or utilising occurrence information in order to assign blame or liability, or for any other purpose beyond enhancing aviation safety, in accordance with the second paragraph of Article 15 of Regulation No 376/2014 (para. 52). According to the Court, the joint reading of the recitals of this Regulation and its other provisions, as well as the other relevant EU regulations in the field of aviation safety proves the central role of a general and strict confidentiality regime of this Regulation, thereby precluding public access to that information in any manner (paras. 55-61).

Furthermore, the Court of Justice clarified that the reference to the expressions ‘appropriate’ and ‘adequate’ in the Regulation are not referred to confidentiality, but to the ‘protection’ or ‘safeguarding’ of that confidentiality. According to the Court, the Regulation refers to the action to be taken to ensure that safeguarding or protection and to the ‘use’ of the information concerned. The obligation of confidentiality cannot be interpreted as relative but information should be protected and used only for the purposes for which it has been collected (para. 62).

Access to Information in the EU

Following a close analysis of the confidentiality obligation in Regulation No 376/2014, the Court of Justice assessed this obligation on the basis of the limitation regime outlined in Article 52 of the Charter. Article 11 of the Charter is subject to a general limitation regime established in Article 52(1), which differs in structure from

Article 10 of the ECHR that stipulates a special derogation regime. In Article 52(1), it is stipulated that any restriction, aside from being lawful and proportionate, must also ‘respect the essence of those rights and freedoms’, a clause absent in Article 10 of the ECHR.

Under this framework, the Court of Justice stated that the limited access to information is compatible with the restrictions to freedom of expression based on Article 52 of the Charter. Article 11 of the Charter would allow everyone to receive information, and particularly the media. Despite the interference which leads the Court to look at the protection of that right as underlined in Poland v Parliament and Council, C-401/19, the Court underlined that the restriction in the case in question can be tolerated. Indeed, the Regulation provides a legal basis to restrict freedom of expression and the objectives of guaranteeing air traffic safety and, more broadly, of ensuring a high uniform level of civil aviation safety in Europe constitute objectives of general interest recognised by the Union. In terms of the essence of this right, the Court of Justice underlined that the confidentiality regime under Article 15 does not undermine the freedom of opinion and expression as it applies only to ‘information relates to accidents, serious incidents or other occurrences which may represent a significant risk to aviation safety and that is collected or held by the competent public authorities’ (paras. 74-75).

Furthermore, even if Article 15 of the Regulation precludes any person from freely accessing the details and information referred to in that provision and therefore from taking cognisance of their content, regardless of the occurrence to which that information relates and therefore regardless of the interest that that information might possibly have for the public, this limitation does not preclude the public and the media to search for that information looking at other sources or by other means.

Furthermore, even if the Regulation precludes any right for the public or even for a media undertaking to have access to information, the obligation of confidentiality does not limit ‘national competent authorities or courts to decide of their own motion, in certain specific situations and in compliance with strict conditions, to make some of that information public’ (para. 80). As a result, it would be possible that some information is disclosed to the public by competent authorities and courts.

To conclude, the Court’s assessment is rather reasonable and convincing on the legal basis of the confidentiality obligation and its general interest in Europe, and the limited application of the confidentiality obligation that does not undermine the essence of freedom of expression.

Prof. Giovanni De Gregorio is PLMJ Chair in Law and Technology at Católica Global School of Law, Universidade Católica Portuguesa. His research interest deals with constitutional law, human rights, freedom of expression, privacy and data protection law. Giovanni is the author of the monograph Digital Constitutionalism in Europe. Reframing Rights and Powers in the Algorithmic Society (Cambridge University Press 2022).

Dr Sümeyye Elif Biber is a postdoctoral researcher in European Public Law and Digitalisation at the University of Luxembourg, and currently writing a book entitled ‘A Rights-Based Inter-Legal Approach to Artificial Intelligence’, which is under contract with Hart. Since February 2023, she is the Head of Digital Rights of the blog DigiCon (The Digital Constitutionalist). She holds a PhD degree (cum laude, highest distinction) from Sant’Anna School of Advanced Studies in Pisa, with a dissertation on the Fundamental and Human Rights Challenges posed by Artificial Intelligence Systems.

SUGGESTED CITATION: De Gregorio, G. and Elif Biber, S.; “RTL Nederland (C-451/22): Civil Aviation Confidentiality and Freedom of Expression and Information”, EU Law Live, 21/02/2024, https://eulawlive.com/op-ed-rtl-nederland-c-451-22-civil-aviation-confidentiality-and-freedom-ofexpression-and-information-by-giovanni-de-gregorio-and-sumeyye-elif-biber/

The genuine links requirement – both a win and a loss for Member State competence in the sphere of nationality law: Case C-689/21, X (Loss of Union Citizenship)

Katarina Hyltén-Cavallius

Introduction

On 5 September 2023, the Grand Chamber of the Court of Justice delivered its ruling in Case C-689/21, X v Udlændinge- og Integrationsministeriet. The outcome of the judgment is that Denmark may, in principle, maintain denaturalisation laws, which make it possible to, by operation of national law, to withdraw Danish nationality from an individual if the person turns twenty-two years old without having demonstrated a close attachment to the State. However, since denaturalisation processes might also extinguish a person’s Union citizenship, there are EU law constraints on the Member States in this area. As a result of the ruling in X (Loss of Union Citizenship), Denmark must still make necessary legal adjustments, in order to make its denaturalisation process comply with EU law, notably with the principle of proportionality.

The ruling has largely been received as ‘a win’ for the Member States, since the judgment legitimises the demand for genuine links between the individual and a state as the basis for retaining nationality. There is nevertheless another side to this win. As this Op-Ed will highlight, the Court’s reasoning on the concept of ‘genuine links’ might be signposting a new inroad into Member State competence in the sphere of nationality law, also affecting processes of nationality acquisition.

Affirming the legitimacy of denaturalisation rules

In essence, the judgment in X (Loss of Union Citizenship) reaffirmed the Court’s stance in the 2019 case of Tjebbes and Others (C-221/17). EU law thereby recognises the legitimate wish of a Member State ‘to protect the special relationship of solidarity and good faith between it and its nationals and also the reciprocity of rights and duties, which form the bedrock of the bond of nationality’ (para. 31). The legitimacy of this interest justifies the act of denaturalising those individuals who can no longer be said to demonstrate a close attachment to the Member State, even when this means that the individual loses their Union citizenship.

The latter fact is what makes Article 20 TFEU applicable – the provision that establishes the status of Union citizenship for all the nationals of the Member States. The fundamental status of Union citizenship must therefore be respected by the Member States when they exercise their national competence in the sphere of acquisition and loss of national citizenship (paras. 28-30). As must the EU Charter; notably its protection for the respect

of private and family life of the individual concerned in Article 7. However, in order for these provisions of EU law to be satisfyingly respected, a Member State’s denaturalisation processes must comply with the principle of proportionality (paras. 38-40). It is on this mark, that the Danish law failed.

The core issue in Danish law – lacking proportionality

The X (Loss of Union Citizenship) judgment scrutinises the Danish nationality laws that, in some instances, allow for an automatised loss of Danish nationality, without the possibility of judicial redress. Specifically, following Danish nationality law, a Danish national, born outside of Denmark, and who has never lived in Denmark, nor resided there in a way that indicates a ‘close attachment’ to Denmark, will lose their Danish nationality upon reaching the age of twenty-two.

The first exception is that this rule does not apply if the person would thereby become stateless. The second exception to the rule is that if the citizen submits an application to retain Danish nationality between the age of twenty-one and twenty-two, the Danish authorities may make an individual assessment of whether Danish nationality could be retained for other reasons. Beyond that, a person who loses their Danish nationality subject to this rule will have to go via the ordinary Danish naturalisation procedure, which, among other things, requires many years of continued residence in Denmark, although this demand may be adjusted on an individual basis.

Critically, there is no possibility beyond the age of twenty-two to appeal the denaturalisation that has happened. The lost Danish nationality cannot be restored ex tunc, that is; recovered at the outset. The only possibility for an individualised examination of the proportionality and the consequences of the loss of nationality from the point of view of EU law, would be if the individual concerned applied to the authorities to retain their Danish citizenship. However, such an application would only be considered by the authorities if submitted in the year the person is over twenty-one but not yet twenty-two years old, and preferably, as close as possible to the twentysecond birthday as possible.

It is here that the national procedure governing denaturalisation of Danish nationals falls short in the balancing act between the public interest of allowing for the loss of Danish nationality for those individuals who do not show a genuine link to Denmark, and the proportionality of the individual’s loss of the status and rights of Union citizenship. The outcome of X (Loss of Union Citienship) means that the Danish procedures must be amended so as to enable national authorities to make an individual assessment also after the person has reached the age of twenty-two.

For the Court, the fact that the individual concerned may regain Danish nationality by way of the normal Danish naturalisation process was in no way a compensation for the lack of judicial redress in the first place. The result of that process would still be that an individual risked being deprived, even for a limited period, of the possibility of enjoying his or her rights of Union citizenship (paras. 57-58).

At the face of it, the judgment mostly reaffirms what we already knew from Tjebbes. It would be incompatible with the principle of proportionality to allow nationality rules prescribe an automatised loss of Member State nationality with no possibility of an individual examination of the consequences it might have from the point of view of the person’s standing as a Union citizen. With this, the competence of the Member States in the area of nationality law seems well respected, as the Court does not argue with the legitimacy of denaturalising those nationals who lack a sufficient connection to the State. But there are two sides to the coin that, from the point of view of EU law, legitimises the requirement of genuine link between the individual and the Member State.

Paving another inroad of Article 20 TFEU: genuine links

The Court in X (Loss of Union Citizenship) repeated its saying from Tjebbes, that it is ‘legitimate for a Member State to take the view that nationality is the expression of a genuine link with that Member State, and therefore to prescribe that the absence, or the loss, of any such genuine link entails the loss of nationality’ (para. 32). It also found that the assessment criteria for whether there is such a genuine link between the person and the state may well be based on factors such as place of birth and residence, and the nature of the person’s stays in the national territory (para. 35).

Interestingly, the pending case of Commission v Malta (Maltese Citizenship Law) (C-181/23) shows the use of the same genuine link concept as argued by the European Commission. The Commission has built up its line of argumentation in its case against Malta on the notion that nationality acquisition regimes based on capital investment or payments, but without a genuine link requirement, are incompatible with Union citizenship and the principle of sincere cooperation (Article 4(3) TEU). By legitimising denaturalisation processes of the Member States by reference to genuine links, the Court’s reasoning implicitly paves the way for using the same concept against the Member States. Namely, to challenge those naturalisation regimes of Member States that lack demands of genuine links between the individual and the State. If this inroad is opened, further changes to many naturalisation regimes of Member States would await, as this would create additional constraints in EU law not only to losses, but also to acquisitions of Member State nationality.

Conclusion

There is good reason to anticipate a furthering of the demands of EU law in relation to the nationality laws of Member States. Undoubtedly the ‘win’ for the Member States, that there is legitimacy for them to require genuine links between an individual and the state in order to retain nationality, opens up the door for EU law to influence the sort of requirements that Member States place on individuals wishing to naturalise in the first place. Acquisition of Member State nationality may, as much as its loss, be a matter within the scope of EU law.

Katarina Hyltén-Cavallius is Assistant Professor of EU Law at Linnaeus University, Sweden. She recently authored the article ‘Solidarity and the Bond of Nationality in Union Citizenship Law’ in the Nordic Journal of European Law, 2023(6).

SUGGESTED CITATION: Hyltén-Cavallius, K.; “The genuine links requirement – both a win and a loss for Member State competence in the sphere of nationality law: Case C-689/21, X (Loss of Union Citizenship)”, EU Law Live, 19/02/2024, https://eulawlive.com/op-ed-the-genuine-links-requirementboth-a-win-and-a-loss-for-member-state-competence-in-the-sphere-of-nationality-law-case-c-689-21-x-loss-of-union-citizenship-by-kat/

Confirmation in Österreichische Datenschutzbehörde that the GDPR applies to Member State Parliaments

Karen Mc Cullagh

The Court of Justice considered in Österreichische Datenschutzbehörde (C-33/22) whether the personal data processing activities of a Parliament of a Member State fall within the scope of the GDPR 2016/679 and if the national security exemption therein should be interpreted broadly or narrowly. It decided that, as a general principle, they do fall within the scope of the GDPR, and in instances where the national security exemption is relied upon, that exemption should be interpreted narrowly. The Court also considered whether provisions of the GDPR relating to the right to lodge a complaint with a national supervisory authority could be applied directly, despite a constitutional principle of separation of powers that precludes external interference in the Parliament’s activities. It ruled that they can. This Op-Ed illustrates the confusion that previously existed and demonstrates that the decision brings much needed clarity.

The Background

Parliaments in Member States engage in two activities, namely, activities that directly contribute to law-making and activities concerning supervisory oversight and scrutiny of executive actions. These activities necessitate the processing of personal data e.g., the names of petitioners requesting legislative reform, answers to written questions and transcripts of evidence pertaining to committee hearings.

When the GDPR entered into force on 25th May 2018 it was unclear whether it extends to Parliaments in Member States, and if it does apply in principle, how broadly or narrowly exemptions therein should be interpreted. Relatedly, there was a lack of clarity regarding whether a national supervisory authority has the competence to monitor compliance with the GDPR by a parliamentary committee, which is a part of the legislature, is or is precluded from doing so by the principle of separation of powers because supervisory authorities are part of the executive.

The uncertainty resulted in notable disparities in practice –a survey of 40 parliamentary chambers, conducted shortly after the GDPR entered into force, found that 67% considered the GDPR to apply directly or indirectly via Member State laws to their activities, whilst 21% did not and the remainder were undecided. The survey also found that some parliamentary chambers considered themselves to be subject to their respective national supervisory authority’s remit whilst others claimed not to be because of the constitutional principle of separation of powers.[1]

1 Applicability of the GDPR to parliamentary activities

The issue of the applicability of the GDPR to Parliamentary activities was first considered in VQ v Land Hessen, (C-272/19). After confirming that the parliamentary committee could be considered a controller, the Court quickly turned its attention to the central issue in the case, namely whether any of the exemptions were applicable.

Referring to C-101/01, Lindqvist, it ruled that it is not appropriate to interpret the Art 2(2)(a) expression ‘activity which falls outside the scope of [Union] law’ as having a meaning which would require it to be determined in each individual case, and that this applies a fortiori with respect to the GDPR, which is based on Article 16 TFEU (para. 67). It further stated that the exemption should be interpreted restrictively (para. 68), such that it should not automatically apply in respect of an activity ‘characteristic of the Member State or of a public authority’ (para. 70). Rather, it is necessary that the activity is one of the activities that are expressly mentioned in Article 2(2) (b) ‘common foreign and security policy’ and (d) ‘Prevention, investigation, detection or prosecution of criminal penalties,’ or that could be classified in the same category. It also noted the GDPR does not contain an exception with respect to parliamentary activities (para. 72). As none of the exemptions were applicable, the parliamentary committee’s activities were considered within the scope of the GDPR.

Scholars disagreed on how to interpret this preliminary ruling. The uncertainty stemmed from the Court describing the activities of the Committee as ‘political as much as administrative’ and that they only ‘indirectly’ contribute to parliamentary activity. This prompted some to query whether the Court would, in a future case, view an activity that is ‘directly’ part of parliamentary activity (i.e., law-making) as a ‘characteristic activity of the State’ and classify it in the same category as Article 2(2)(a), (b) or (d) GDPR. It was therefore unsurprising that when the survey was repeated after the Land Hessen judgment, that it reflected continuing confusion. Of the 7 Parliamentary Chambers that indicated a change of stance, 3 had changed their position from non-application to that of application and 2 changed the status of the GDPR from provisional to application, yet 2 had declared parliamentary activities as being exempt from the application of the GDPR.[2]

However, the issues were revisited in case Österreichische Datenschutzbehörde (C-33/22). The Court recalled Land Hessen in support of its reasoning that a committee whose activity is directly and exclusively parliamentary in nature falls within the scope of the GDPR. It ruled that when determining the applicability of exemptions, the focus should be on the category of activities of the controller’s processing rather than the identity of the controller itself (paras. 37 and 42).

In line with the AG’s Opinion, which argued for the national security exception to be interpreted narrowly, the Court recalled Latvijas Republikas Saeima (C-439/19) and Koalitsia ‘Demokratichna Bulgaria – Obedinenie’(C-306/21) in support of its reasoning that the Art 2(2)(a) GDPR exemption must be interpreted restrictively, such that it would encompass those that are ‘intended to protect essential State functions and the fundamental interests of society’ and not automatically apply in respect of an activity of a parliamentary committee established to scrutinise the executive (para. 43).

It also referred to Ministrstvo za obrambo (C-742/19), in support of its determination that although it is for Member States, in accordance with Article 4(2) TEU, to define their essential security interests, the activities of a committee set up to investigate allegations of political influence could not automatically be regarded as activities concerning national security.

2. Competence of national supervisory authority

A second issue that arose in both cases was the competence of national supervisory authorities. In Land Hessen it was an incidental issue, with the Court noting only that whilst Article 55(3) provides that supervisory authorities are not competent in respect of the processing of personal data by courts when acting in a judicial capacity, the GDPR does not contain a similar provision in respect of parliamentary bodies. Accordingly, some scholars continued to argue that the absence of a similar provision in respect of Parliaments should not lead to the conclusion that a supervisory authority has competence regarding their processing activities since this could constitute an interference with the constitutional principle of separation of powers. The disparity of approach was confirmed in a 2021 survey – of those Parliaments that responded, 60% were subject to their respective national supervisory authority’s remit. By contrast, 24% were not. Also, none had established a specialist supervisory authority.[3]

The issue was revisited in Österreichische Datenschutzbehörde, when the Court considered whether a single supervisory authority established by a Member State is competent to supervise a parliamentary committee. The Court noted that Article 51(1) grants each Member State a margin of discretion which empowers it to establish however many supervisory authorities as are necessary in accordance with its constitutional arrangements, before ruling that if a Member State has established only one supervisory authority but has not explicitly conferred on it the power to oversee executive committees, it will be deemed have competence to do so. In this regard, it observed that the EU legislator envisaged specific limitations regarding the separation of powers when drafting the GDPR. Indeed, Article 55(3) GDPR specifically states that DPA’s are not competent to supervise processing operations of courts in their judicial capacity (para 66), but is silent regarding parliaments, a silence that the Court interpreted as conferring competence on the Austrian supervisory authority to monitor compliance the committees’ compliance with the GDPR, notwithstanding the principle of separation of powers, thereby underscoring the direct effect and primacy of EU law, including the GDPR, over national constitutional law.

Conclusions

It is now clear that the Court does not distinguish between legislative and executive activities when considering whether the GDPR applies to Parliamentary activities. Instead, the presumption is that the GDPR applies to all personal data processing, unless one of the exemptions specified in Article 2(2) applies. Moreover, when considering whether the Art 2(2)(a) national security exemption may be applicable, it should be interpreted narrowly. Accordingly, all Member States must now accept an obligation to comply with the GDPR, and for their personal data processing activities to be subject to supervision by either a national data protection regulator,

or specialist regulator, if that better fits their national constitutional framework. The clarity and certainty this decision brings is to be welcomed because will it result in data subjects in all Member States having enforceable data protection rights in respect of personal data processed by Parliaments.

Dr Karen Mc Cullagh is a Lecturer in Law at the University of East Anglia, UK. Her research specialism is information rights.

[1] König, S., “The GDPR’s Application and Supervisory Authorities’ Remit on National Parliaments’ Data Processing in Parliamentary Core Activities,” International Journal of Parliamentary Studies, 2 (2022) 99–109.

[2] Ibid.

[3] Ibid.

SUGGESTED CITATION: Mc Cullagh, K.; “Confirmation in Österreichische Datenschutzbehörde that the GDPR applies to Member State Parliaments”, EU Law Live, 19/02/2024, https://eulawlive.com/op-ed-confirmation-in-osterreichische-datenschutzbehorde-that-the-gdpr-applies-tomember-state-parliaments-by-karen-mc-cullagh/

A judgment of the Court of Justice can constitute a new element justifying a fresh examination of the substance of the subsequent asylum application. Case C-216/22, a strengthening of the legal position of the asylum seeker

Aniel Pahladsingh

On 8 February 2024, the Court of Justice ruled in Case C-216/22, Bundesrepublik Deutschland (Recevabilité d’une demande ultérieure), on the important issue of ‘subsequent applications’ for international protection, defined as applications lodged ‘after a final decision has been taken on a previous application’ brought by the same person, which are subject to particular procedural rules laid down under Directive 2013/32/EU (Procedures Directive).

This is an important issue given the increase in the number of subsequent applications for international protection in the EU Member States. [1] This judgment of the Court of Justice gives more clarification on the Article 33(2) (d) of the Procedures Directive, read in conjunction with Article 40 thereof, in which national immigration authorities are granted the possibility of declaring subsequent applications inadmissible if there are ‘no new elements’. The Court explains that one of its judgments can constitute a new element in which the subsequent application cannot be declared inadmissible in application of those provisions. Furthermore the Court clarifies the scope of the judicial review in the context of an appeal against a decision declaring a subsequent application for international protection inadmissible. The Court repeats its ruling in Alheto, (C-585/16), that in the absence of any provision in the Procedures Directive, it is for each Member State to decide whether or not its national courts may or must, when deciding an appeal against a decision rejecting a subsequent application as inadmissible, also analyse the merits of the asylum claim of the person concerned in place of the competent authorities or whether they must instead refer the application back to those authorities for further examination by them.

The reference and facts

The applicant is a Syrian national who left his country of origin in 2012 and feared being recalled to serve in the armed forces or arrested if he refused to fulfil his military obligations. He submitted an asylum application in Germany in 2017 and was granted subsidiary protection. However, the German immigration authorities rejected the application for refugee status. The reason for this was essentially stated that the applicant came from an area in which several parties, including the Syrian army, the Free Syrian Army and IS, were fighting against each other. It could not be determined that this was opposition territory in which only the Syrian army carried out bombings. To that extent, it could not be assumed that the Syrian state would therefore ascribe to him an oppositional attitude. The applicant has not lodged any objection or appeal against that decision, which means that it has become final under national law.

In the wake of a judgment of the Court of Justice concerning the situation of Syrian conscientious objectors (Bundesamt für Migration und Flüchtlinge (Military service and asylum, C-238/19), on 15 January 2021, the applicant lodged a subsequent asylum application. He argued that that judgment of the Court of Justice constituted a change in the legal position in his favor. That subsequent application, however, was rejected as inadmissible, that is to say without examining whether the conditions required to qualify for refugee status were met. The dispute ultimately ended up before a German administrative court of first instance.

Under the combined provisions of Paragraph 71(1) of the Law on the right to asylum and Paragraph 51(1)(1) of the German Law on administrative procedure, if, after unchallengeable rejection of an initial asylum application, the third-country national lodges a subsequent application, the determining authority must reopen the procedure if the factual or legal position on which the administrative act was based has subsequently changed in favor of the individual concerned. In terms of a change in the ‘legal position’ within the meaning of those German provisions, according to the national case-law, only an amendment to the applicable provisions is, in principle, capable of coming within that concept, and not a judgement of the Court. The referring court doubts whether the first sentence of Article 71(1) Law on the right to asylum is compatible with the requirements of Article 33(2)(d) and Article 40(2) of the Procedures Directive. The Court of Justice is requested, among other things, to clarify under what circumstances one of its judgments, must be regarded as a ‘new element’ within the meaning of Article 33(2) (d) of the Procedures Directive are considered. Under that provision, read in conjunction with Article 40 of the Procedures Directive, national authorities have the option to declare ‘subsequent requests’ inadmissible. However, this possibility is expressly subject to the condition that ‘no new elements […] relating to the examination of the question whether [the applicant] qualifies for recognition as a beneficiary of international protection’ have arisen or submitted by that applicant. If the referring court can also decide on the application for international protection, the question arises whether any required but not yet completed interview of the person concerned within the meaning of Articles 42 and 12 of the Procedures Directive can still be conducted in the legal proceedings.

Procedures directive and subsequent applications

Directive 2013/32/EU contains specific procedural rules for subsequent applications. Advocate General Emiliou explained in his Opinion the reasons behind this provision. For the Member States it would be ‘disproportionate to oblige Member States to carry out a new full examination procedure in accordance with the res judicata principle’, which would create a disproportionate administrative burden for the immigration authorities (point 29). On the other hand, a full examination of a new asylum request is obligated in order to prevent that the return of the asylum seeker [2] to the country of origin by the Member States will violate the principle of non-refoulement (Article 4 Charter) as the asylum seeker will face an inhuman treatment. [3]

The Court had already ruled in the judgment of 14 May 2020 (C-924/19 PPU and C-925/19 PPU, para. 203) that the concept of ‘new element’, within the meaning of Article 33(2)(d) and Article 40 of the Procedures Directive is not limited to factual elements, but may also encompass elements of a purely legal nature. A judgment of the Court falls within the scope of elements of a purely nature. The Court’s judgment of 14 May 2020 concerned a

situation where it was clear that the applications for international protection of the persons concerned had been rejected on the basis of a national rule that was contrary to EU law. Indeed, the Hungarian authorities in that case had relied on a ground of inadmissibility which, although provided for in Hungarian law, was not included among those listed in Article 33(2) of the Procedures Directive. The Court concluded that that national provision was contrary to EU law (C-924/19 PPU and C-925/19 PPU, EU:C:2020:367, paras. 148 to 165).

In the current judgment the Court points out that according to the wording of Article 33(2)(d) of the Procedures Directive and, in particular, from the use of the expression ‘new elements or findings’ in Article 33(2)(d) of the Procedures Directive ‘refers not only to a factual change in the personal circumstances of an applicant or that of his or her country of origin, but also to new legal elements’ (para. 37). The Court clarifies that any judgment of the Court can constitute a new element justifying a full re-examination if the conditions required to qualify for refugee status are met. That applies also for a Court’s judgment which is limited to interpreting a provision of EU law already in force at the time that a decision on a previous application was adopted. The date on which the judgment was delivered is irrelevant. The Court gives two reasons for this. First, the Court points out that the right to asylum (see Article 18 of the Charter of Fundamental Rights of the European Union (‘the Charter’) which contains the right to obtain international protection, provided that the conditions required by EU law are met (para. 39). The second reason is that ‘an obstacle to the effective application of the rules of EU law in relation to the procedure for the grant of international protection cannot reasonably be justified by the principle of legal certainty’ (para. 39). However, in order for a judgment of the CJEU to constitute a full re-examination, it must significantly add to the likelihood of the applicant qualifying as a beneficiary of refugee status (para. 49).

Judicial review and subsequent applications

The Court of Justice recalls that according to Article 46(1)(a)(ii) of the Procedures Directive asylum seekers have the right to ‘a right to an effective remedy against decisions considering their subsequent applications inadmissible’ (para. 56). The judicial review by the national courts contains a full and ex nunc examination of both facts and points of law regarding the examination of the international protection (para. 57). The Court again recalls that ‘Article 46(3) of the Procedures Directive only pertains ‘the examination of the appeal and does not concern the outcome of any annulment of the decision subject to that appeal’ (para. 59, as well as Aletho, para. 145 and Torubarov, C-556/17, para. 54).

The Court repeats the procedural autonomy for the Member States, as in the judgment Alheto, which means that they have the discretion to provide in their national law, that national courts deciding on that issue do not need to perform an examination of the application on the merits themselves and may simply decide that the file should be returned to the competent authorities for a new examination. In this situation, the national court will annul the previous decision of the immigration authority and will refer the case back to the determining authority. The immigration authority will have the obligation ‘to decide within a short period of time and that it complies with the assessment contained in the judgment annulling the previous decision’ (para. 61). It will also have the consequence that the immigration is obligated to conduct a personal interview with the applicant (Article 14 of the Procedures Directive).

On the other hand, the Court further states that Member States may, without being obliged to do so, authorize their national courts to rule themselves on that application and, where appropriate, grant refugee status. The national courts must fulfill the obligations as described in Article 47 of the Charter which enshrines the right to an effective remedy before a tribunal for everyone whose rights and freedoms guaranteed by EU law are infringed (paras. 61-63). In this situation a personal interview with the applicant may be omitted where that national court is able to take a positive decision with regard to refugee status on the basis of evidence available (para. 66). The advantage of this system is that the national court can carry out a final dispute settlement.

Conclusion

The consequence of this judgment is that Germany has to adjust the national caselaw as the interpretation the combined provisions of Paragraph 71(1) of the Law on the right to asylum and Paragraph 51(1)(1) of the German Law on administrative procedure is not compatible with the requirements of Article 33(2)(d) and Article 40(2) of Directive 2013/32/EU. The national courts have to consider the judgments of the CJEU as a ‘new finding’ and therefore a subsequent asylum application cannot be declared inadmissible. This ruling strengthens the legal position of the asylum seeker.

This Court’s judgment shows that the Member States cannot declare a subsequent application inadmissible, pursuant to Article 33(2)(d) of the Procedures Directive, if the definitive rejection of the earlier application is contrary to EU law. The Court uses the fundamental right from the Charter (Article 18: the right to asylum) and the principle of legal certainty as foundations to protect the legal protection of the asylum seeker in order to realise the useful effect of the procedure directive. The incorrect application of EU law should not be repeated in each further application for international protection without any possibility of providing the applicant with an examination of his or her application that was not vitiated by the infringement of EU law.

Regarding the scope of the judicial review in the context of an appeal against a decision declaring a subsequent application for international protection inadmissible, it is clear from Article 46(1)(a)(ii) of the Procedures Directive that Member States must ensure that applicants for international protection have the right to an effective remedy before a court or tribunal against a decision rejecting their subsequent application as inadmissible. It requires, that the national court must review for a full and ex nunc examination of both facts and points of law. Due to the procedural autonomy of the Member States it is for each Member State to decide whether or not its national courts may or must, when deciding an appeal against a decision rejecting a subsequent application as inadmissible, also analyse the merits of the asylum claim of the person concerned in place of the competent authorities or whether they must instead refer the application back to those authorities for further examination by them.

Aniel Pahladsingh is a senior lawyer at the Legal Affairs Department at the Ministry of Social Affairs and Employment (Nl) and deputy judge at the District Court in Rotterdam (Administrative Law section). He has written several articles and books in the area of asylum, migration and fundamental rights in the EU.

[1] See ‘Practical Guide on Subsequent Applications’, published by the European Asylum Support Office (EASO) (now called the European Union Agency for Asylum (EUAA)), December 2021, p. 8; available here.

[2] More about the return of illegal migrants in the EU: A. Pahladsingh, Crimmimigration and the Return Directive, Eleven Publishers (2023).

[3] See more EASO ‘Practical Guide on Subsequent Applications’, December 2021, p. 9: the possibility for asylum seekers to make a subsequent application is crucial in upholding the principle of non-refoulement.

SUGGESTED CITATION: Pahladsingh, A.; “A judgment of the Court of Justice can constitute a new element justifying a fresh examination of the substance of the subsequent asylum application. Case C-216/22, a strengthening of the legal position of the asylum seeker”, EU Law Live, 22/02/2024, https://eulawlive.com/op-ed-a-judgment-of-the-court-of-justice-can-constitute-a-new-element-justifying-a-fresh-examination-of-the-substance-ofthe-subsequent-asylum-application-case-c-216-22-a-strengthening-of/

Access to justice:

Costs of environmental litigation should not be prohibitively expensive (C-252/22)

Miguel Saldivia

Introduction

High costs remain as a substantial barrier as ever before to the achievement of access to environmental justice. [1] Despite the international framework ensuring the access to justice, the problem of the litigation expenses depends mainly on the national legislation. A recent judgement issued by the Court of Justice in Societatea Civilă Profesională de Avocaţi AB & CD (C-252/22) discusses the potential conflict between the national legislation and the international law regarding the ‘reasonable costs in judicial proceedings’.

The judgment, issued on the 11th January 2024, addresses the interpretation of different provisions of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (‘Århus Convention’) and confirms that judicial proceedings should not be prohibitively expensive. It also clarifies the concept of ‘public concerned’ and the requirements for Non-Governmental Organisation (NGOs) for being considered to have a sufficient interest and rights that can be impaired in any litigation case.

Facts and claims

In October 2018, a Romanian law firm partnership, AB & CD, initiated legal proceedings before the Tribunalul Cluj (Regional Court, Cluj, Romania) seeking the annulment of administrative measures related to the construction of a landfill site in Pojorâta, Romania. AB & CD based its action on Article 35 of the Romanian Constitution, which concerns the right to a healthy environment, as well as other domestic regulations on environmental assessment procedures. The defendants argued compliance with technical requirements for landfills and raised three pleas of inadmissibility. The first argued that AB & CD lacked legal personality under Romanian law and could not be a party in a proceeding. The second and third argued that AB & CD failed to establish standing or interest in challenging the measures.

The Tribunalul Cluj rejected the first plea but upheld the other two, stating AB & CD lacked standing and interest. AB & CD appealed to the Curtea de Apel Cluj (Court of Appeal, Cluj), and a cross-appeal was filed by the Consiliul Județean Suceava (Suceava County Council) challenging the rejection of the plea of inadmissibility.

National legislation versus international law

The case was transferred to the Curtea de Apel Târgu-Mureș (Court of Appeal, Târgu-Mureș, Romania). AB & CD did not qualify for the special regime applicable to environmental NGOs, so its admissibility to challenge the

administrative measures was to be assessed under general rules. The Romanian law on administrative proceedings requires an applicant to establish a ‘legitimate private interest’ before invoking a ‘legitimate public interest.’ In contrast, environmental NGOs are not required to demonstrate a legitimate private interest. In turn, Articles 451 to 453 of the Romanian Code of Civil Procedure govern, in general, the issue of costs. Those costs include, inter alia, court costs and lawyers’ fees. The losing party may be ordered to pay the costs if they have been applied for by the successful party. Given this situation, the referring court wanted to establish whether the Romanian law is consistent with the Århus Convention.

Article 3(8) of the Århus Convention ensures the access to justice for the ‘public concerned,’ defined as the public affected or likely to be affected by environmental decision-making. Indeed, this Article provides that ‘each Party shall ensure that persons exercising their rights in conformity with the provisions of this Convention shall not be penalised, persecuted or harassed in any way for their involvement. This provision shall not affect the powers of national courts to award reasonable costs in judicial proceedings.’ Additionally, in accordance with the Article 2 of the Århus Convention, in paragraphs 4 and 5, ‘the public’ means one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organisations or groups; while ‘the public concerned’ means the public affected or likely to be affected by, or having an interest in, environmental decisionmaking’.

Article 9 of the Århus Convention provides, in paragraph 2 that ‘each Party shall, within the framework of its national legislation, ensure that members of the public concerned: (a) having a sufficient interest or, alternatively, (b) maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition, have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission (…)’. Thus, the requirement for having a sufficient interest and experiencing impairment of a right in the context of the Århus Convention should align with national law while aiming to provide broad access to justice for the public. Specifically, NGOs meeting certain criteria outlined in Article 2(5) of the convention are automatically considered to have a sufficient interest and rights that can be impaired, simplifying their eligibility for legal involvement in environmental matters.

Final remarks and relevance of the case

In this ruling, the court highlights two key interpretations. First, it points out that Article 9(3) of the Århus Convention allows national legislation to recognise a legal entity, other than a NGO for environmental protection, as having standing to bring proceedings against an administrative measure, even if it is not the addressee. This is permissible only if the entity claims a failure to observe a legitimate private interest or an interest connected to a legal situation directly related to the object of that entity.

Second, it says that Article 9(4) and (5) of the Århus Convention, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, requires that in environmental disputes, where a court

orders costs against an unsuccessful party, it must consider all circumstances of the case, including the party’s interest and the public interest in environmental protection. This is to ensure compliance with the mandate that judicial proceedings should not be prohibitively expensive.

The significance of this ruling is particularly relevant nowadays considering that the total number of climate change court cases has more than doubled since 2017 and is growing worldwide.[2] This shows an increasing interest from different stakeholders and civil society to access to courts and discuss their environmental concerns.

The litigation costs should not be a barrier for that purpose. The case Societatea Civilă Profesională de Avocaţi AB & CD (C-252/22) sets a timely and crucial precedent by confirming that national legislations need to be aligned with the spirit of the Århus Convention: the right of access to justice must be guaranteed, no matter the kind of organisation or individual willing to make a claim.

Miguel Saldivia is a Teaching Associate in Environmental Law at the Department of Land Economy, University of Cambridge. He is a Chilean lawyer and holds an LLM in Environmental Law from the University College London (UCL). He is also a PhD candidate and a researcher at the Cambridge Centre for Environment, Energy and Natural Resource Governance.

[1] The Guardian, High costs deterring legal challenges in England and Wales to protect environment, NGOs say, 28 June 2023.

[2] UNEP, Climate litigation more than doubles in five years, now a key tool in delivering climate justice, 27 July 2023 [https:// www.unep.org/news-and-stories/press-release/climate-litigation-more-doubles-five-years-now-key-tool-delivering].

SUGGESTED CITATION: Saldivia, M.; “Access to justice: Costs of environmental litigation should not be prohibitively expensive (C-252/22)”, EU Law Live, 21/02/2024, https://eulawlive.com/op-ed-access-to-justice-costs-of-environmental-litigation-should-not-be-prohibitively-expensive-c-252-22-bymiguel-saldivia/

SRB’s calculations for SRF’s contributions got annulled due to methodological reasons

Marco Bodellini and Giulio Giacomo Cimini

On 24th January 2024, the Court of Justice delivered three judgments concerning three distinct –yet connected–cases ( T-347/21; T-348/21; T-405/21). The Court’s decisions, prompted by a French and two Austrian banks, are important in that they shed light on the legality of the Single Resolution Board’s calculations concerning the ex ante contributions to the Single Resolution Fund imposed upon credit institutions. Amongst its duties, the Single Resolution Board must calculate yearly the banks’ individual contributions to the Single Resolution Fund, pursuant to Article 70 of Regulation 806/2014 (so-called SRMR). The Single Resolution Fund, in turn, is instrumental for an efficient application of the resolution tools. Nevertheless, the proceedings relate to the degree of leeway that the SRB can actually avail itself of when carrying out such calculations.

In particular, the cases concern the 2021 contributions, which, according to the three banks, had been calculated in violation of Article 69(2) SRMR as well as Articles 296(2) of TFEU and 41 of the Charter of Fundamental Rights, inasmuch as, respectively, they did not conform to the prescribed methodology of calculation and no sufficient justification had been provided for it.

Article 69 SRMR envisages that contributions should be imposed – over an eight-year period starting from 1st January 2016 – in such a way as to let the Fund reach 1% of the amount of covered deposits of all credit institutions authorised in the Member States participating in the banking union by 31st December 2023. Paragraph 2 of Article 69 SRMR also lays down that the funds should be spread out in time as evenly as possible although still taking due account of business cycles and the impact that pro-cyclical contributions may have on the financial position of the banks.

The SRB issued a document – the ‘Fact Sheet 2021’ – whereby it explained why it had set a higher 1.35% rather than strictly abiding by the 1% coefficient for the covered deposits of the previous year, as dictated by Delegated Regulation 2015/63, in view of a reported rise of those deposits. Estimations had induced the agency to assume that the figures would further increase until the end of 2023 by between 4% and 7%, although projections by the ECB and the Commission had suggested that the rise would be lower than that of 2020. Based upon these forecasts, the SRB adopted a ‘prudent approach’ and set a higher amount for the contributions.

In fact, the Court of Justice found that the SRB’s reasoning had been finistically built in reverse by first identifying a prognosticated final level. It had done so by adding 4% to the average number of covered deposits for 2020 and then subtracting the amount already collected from the final figure. Only then had the SRB divided the figure by three, i.e. the remaining years of the eight-year period.

As for the lack of motivation, the Court of Justice, having recalled that a decision concerning ex ante contributions must provide the institutions involved with the method of calculation (see Commission v Landesbank BadenWürttemberg and SRB (C-584/20 P)), found large discrepancies between the methodology disclosed in the Fact Sheet 2021 and the one actually applied. Inconsistencies have also been found within the very document, as the results were at odds with the methodology displayed therein too.

The foregoing led the Court of Justice to argue that, although the SRB did not in fact have an obligation to share confidential figures, the change of methodology rendered impossible for both the credit institutions and the Court to grasp the technical reasons behind the figures of the annual target level. Thus, the SRB’s decision was annulled. The effects will remain in force until a new determination of the amount, which shall take place within no more than six months from the date of the rulings, will be made.

Marco Bodellini, University of Luxembourg, is the author of International bank crisis management – a transatlantic perspective, Oxford, 2022

Giulio Giacomo Cimini is a financial lawyer based in Milan and teaching assistant at University of Bergamo

SUGGESTED CITATION: Bodellini, M. and Giacomo G..; “SRB’s calculations for SRF’s contributions got annulled due to methodological reasons”, EU Law Live, 20/02/2024, https://eulawlive.com/analysis-srbs-calculations-for-srfs-contributions-got-annulled-due-to-methodological-reasons-by-marcobodellini-and-giulio-giacomo-cimini/

SYMPOSIUM

COMPETITION CORNER:

SYMPOSIUM ON EU LAW AND SPORT

The Court of Justice moves and then fixes the goalposts on how EU law applies to sport

Dr Andrea Cattaneo and Professor Richard Parrish

On 21st December 2023, the Grand Chamber of the Court of Justice of the European Union (CJEU) delivered three judgments that have implications for international sports governance and the approach judicial and arbitral bodies will adopt when applying EU law to sporting disputes.

ISU

The International Skating Union (ISU), as the governing body for figure skating and speed skating, has established rules for its discipline, including prior authorisation rules for international competitions, eligibility rules for athletes, and arbitration rules for the resolution of disputes. Under the authorisation rules, any thirdparty organiser needs to apply to ISU to have its event sanctioned. The eligibility rules included the prospect of a long ban for athletes participating in unauthorised competitions.

In 2014, two speed skaters complained to the European Commission arguing that as ISU was both organising events and exercising power to authorise third-party events, these rules violated EU competition law. The complaint led to a Decision in 2017, which was appealed by ISU before the General Court in 2020 and then to the Court of Justice.

In December 2023, the Court of Justice held that when an undertaking that is economically active in a market can exercise the power to decide which other entity is to participate in such a market, the exercise of such power must be subject to restrictions, obligations and review. Ultimately, while the governing body’s authority to set rules remains untouched, such power cannot be exercised to unduly restrict the access of third parties to the market. The ISU’s rules were, in this regard, deficient and not compatible with EU competition law.

In a further section of the judgment, the CJEU also declared as being incompatible with EU the system of mandatory arbitration operated by ISU, according to which appeals against authorisation and eligibility decisions must be heard before the Court of Arbitration for Sport (CAS).

ESL

Similarly to ISU, in European Superleague (ESL) the Court was called upon to assess the legitimacy of the prior authorisation rules of UEFA and FIFA and the enforcement of the sanctions for non-compliance. The statutes of the football governing bodies assert their authority to authorise any football competition, as well as their ownership of any commercial rights related to competitions they organise. In the event of lack of compliance, sanctions could

include the exclusion of professional football clubs from all FIFA and UEFA-organised competitions, a ban on players participating in interclub competitions, and a prohibition on their involvement in matches between representative teams of national football associations.

The Court reiterated the reasoning expressed in ISU, confirming that undistorted competition on the market requires equality of opportunity between undertakings. A system of prior-authorisation and sanctioning is not per se illegal, but rather it is a legitimate means to guarantee the homogeneity and coordination of the match calendars, as well as other characteristics of football such as equal opportunities and merit. However, when UEFA and FIFA are in a position to authorise access to the market for the organisation of football competitions to their competitors, this power must be exercised through criteria that are transparent, clear and precise, nondiscriminatory and subject to effective review. These criteria must be the same that UEFA and FIFA adhere to when organising their own competitions, or – if they differ – they must not be impossible or excessively difficult to fulfil.

The CJEU also analysed the rules relating to the exploitation of commercial rights arising from UEFA (and FIFA) competitions. The combination of prior authorisation rules, with rules that attribute to the governing body the ownership of the rights, constitute a restriction of competition by object, that can only be justified if the efficiency created outweighs its negative impact. Such efficiency gains will have to be assessed by the referring court. The CJEU, however, notes that such efficiency gains must benefit consumers: in its assessment, the CJEU states that the redistribution of revenues to ensure solidarity between the various categories of stakeholders in football can amount to sufficient efficiency gains. However, the solidarity effect must be proven to be real and concrete.

Royal Antwerp

In 2005, UEFA adopted the Home Grome Player (HGP) Rule, establishing that professional football clubs participating in UEFA competitions must include in their roster a minimum number of players that were trained by the club themselves, or by an affiliated club of the same national football association for a minimum of 3 years between the ages of 15 and 21. Starting from the 2007/2008 season, clubs must include 8 ‘home grown players’ in a roster of maximum 25 players. Out of these 8, at least 4 must have been trained by the club that lists them. Various forms of HGP rules have been adopted by National Associations, including the Belgian Football Association, in order to incorporate similar obligations for domestic competitions.

In Royal Antwerp, the Court was asked to assess whether the rules restricted competition under Article 101 TFEU and freedom of movement under Article 45 TFEU by limiting the club’s ability to recruit players that do not fulfil the training requirements, and the player’s chances to be recruited by a club that does not meet the required number of HGP.

The Court, having reminded us that Article 165 TFEU does not provide an exception for rules restricting freedoms guaranteed by EU law, affirmed that it is for the referring court to assess whether parties have presented convincing

evidence to demonstrate that the rules are suitable to achieve their legitimate objective, e.g., encouraging the recruitment and training of young players, or that they create efficiencies capable of outweighing the negative effects of the restriction, on the one hand, and that the restriction to free movement is proportionate to the pursuit of such an objective, on the other.

Impact on International Sports Governance

The judgments have implications regarding the extent to which sports governing bodies retain control over their respective sports. In ISU and ESL this relates to the ability of the governing body to operate pre-authorisation rules, which, the Court makes clear, must be produced within a framework of substantive criteria and detailed procedural rules which are suitable for ensuring that they are transparent, objective, non-discriminatory and proportionate. In essence, these requirements are designed to limit the discretionary powers of governing bodies in order to reduce the risk that conflicts of interest contaminate sports governance. Whilst sports bodies rarely welcome external influence over their affairs, they are likely to prefer this outcome over a potential alternative which is for the Court to require a structural separation of regulatory and commercial functions. Governing bodies have, for now, avoided this burden but must be far more attentive to governance standards.

The pre-authorisation rules at issue in ISU and ESL were clearly deficient, but the Court was not averse to sports governing bodies continuing to operate an improved set of rules. In this regard, the Court acknowledged that “sporting merit… can be guaranteed only if all the participating teams face each other in homogenous regulatory and technical conditions, thereby ensuring a certain level of equal opportunity”. Therefore, pre-authorisation rules, supported by a system of sanctions, have a role to play in safeguarding sporting merit and other legitimate sporting objectives. In that light, and despite some erroneous media reporting, in no way was December 21 an endorsement of the Superleague project.

But is a commitment to good governance, in itself, sufficient for governing bodies to claim that December 21 does not fundamentally alter their powers or the structural integrity of the so-called European model of sport? That assertion is cast into doubt in circumstances in which a third party makes a request for the pre-authorisation of an event that does not put sporting merit at risk. How would a governing body’s refusal to authorise such an event be compatible with the non-discriminatory criteria highlighted by the Court?

Furthermore, in ESL the Court questioned whether pre-authorisation rules stifle competition to the detriment of consumers, by denying them the opportunity to consume potentially innovative new events. It seems that what is at issue here is not the suitability of the framework that gave rise to the pre-authorisation rules, but the impact of such rules on the functioning of the market and the extent to which parties other than the one imposing the pre-authorisation rules benefit. Competition law is the lens through which these issues will be interrogated.

The main thrust of the Court’s assessment across the three judgments is that the power of the governing body must be subject to effective review, and here its view on the place of arbitration in sport will no doubt trouble the sports movement. The Court agreed with the Commission’s initial Decision in ISU that the restrictive effects of

the pre-authorisation rules were reinforced by the arbitration rules. In doing so, the Court was not undermining the ability of sport to resolve disputes by way of arbitration, just requesting that judicial review of decisions of arbitral bodies be subject to EU law. In that regard, the reviewing court must be able to make requests for preliminary rulings to the Court of Justice, which is clearly not an option for the Swiss Federal Tribunal, the court that reviews decisions of the Court of Arbitration for Sport (CAS). Furthermore, remedy at the point of recognising and enforcing an award within the territory of the EU is insufficient. Unless the arbitration rules in ISU are to be considered fact specific, a review of the operation of arbitration clauses in sport will be required. The nuclear option would be for CAS to relocate to the EU. More realistically, the system of mandatory arbitration may need to be revisited.

Impact on EU Sports Law and Policy

The judgments also contain a number of nuances that adjust our understanding of EU sports law and policy. First, rather than offering sports bodies a wide margin of appreciation in the construction of their rules, the Court instead preferred to see a more detailed assessment of governance standards in sport, but this has been outsourced to national courts. In ESL and Royal Antwerp, the Court requested that national courts interrogate ‘convincing arguments and evidence’ brought forward by sports bodies. The danger is that divergent national practice could result in a fragmented landscape.

Second, the Court completely dismantled the assertion of Advocate General Rantos in ESL that Article 165 TFEU (the sports competence) is a horizontal provision that must be taken into account in the interpretation of other Treaty provisions. In ESL and Royal Antwerp the Court stated that Article 165 TFEU ‘is not a cross-cutting provision having general application’ and ‘need not be integrated or taken into account in a binding manner’ in the application of Articles 45 and 101 TFEU. Whilst constitutionally Article 165 TFEU has been put back into its box, in adjudicative terms the Court seems receptive to claims that sport has a special nature. Sport, it stated, ‘undeniably has specific characteristics’ that can be taken into account when assessing the compatibility of sporting rules with EU law. Indeed, at paragraph 105 of ESL and 73 of Royal Antwerp, the Court reminds us that when assessing whether a sporting rule offends EU law, that analysis must be based on a specific assessment of the content of that rule, which presumably involves an examination of specificity of sport arguments, given expression by Article 165 TFEU. Confusingly therefore, Article 165 TFEU is simultaneously binding and not binding.

Third, in a surprising move, the Court appears to have given new life to the ‘purely sporting rules’ defence first crafted in Walrave. Assumed expunged by Meca-Medina, across all three judgments the Court now considers that ‘certain specific rules which were adopted solely on non-economic grounds and which relate to questions of interest solely to sport per se must be regarded as being extraneous to any economic activity’ and are therefore compatible with EU law. However, the contested rules in question (pre-authorisation and home-grown player rules) do not fall into this category, and neither will the vast majority of sporting rules that are likely to give rise to conflict.

Finally, in an even more surprising move, the Court narrowed the scope of the so-called ancillary restraints doctrine. Following Meca-Medina, our assumption was that certain sporting rules were incapable of being defined as restrictive of competition if those restrictive effects were inherent in the pursuit of a legitimate objective and proportionate. If that was the case, there is no need to assess whether the rule gave rise to restrictions by object or effect. Now, the Court has clarified that this defence cannot apply to object restrictions or to conduct that per se infringes Article 102 TFEU (abuse of dominant positions). Nevertheless, as the Court explained above, specificity of sport arguments can still be invoked within the justificatory regime offered by competition law and free movement.

Dr Andrea Cattaneo and Professor Richard Parrish are members of the Centre for Sports Law Research at Edge Hill University, UK.

SUGGESTED CITATION: Cattaneo, A. and Parrish, R.; “The Court of Justice moves and then fixes the goalposts on how EU law applies to sport”, EU Law Live, 19/02/2024, https://eulawlive.com/competition-corner/the-court-of-justice-moves-and-then-fixes-the-goalposts-on-how-eu-law-applies-tosport-by-dr-andrea-cattaneo-and-professor-richard-parrish/

Legality of UEFA’s Prior Authorisation System in C-333/21 European Super League

Dr. Katarina Pijetlovic

The applicable analytical framework for restrictions of competition emanating from the rules of regulatory monopolies, such as football governing bodies, is set out in para. 42 of C-519/04 Meca-Medina. Accordingly, not every restriction on competition is illegal, but assessment must be carried out against overall context in which the decision was taken or produces its effects, particularly its objectives. The restrictions also must be inherent in the pursuit of those objectives and proportionate to them. The Meca-Medina test reserved for prima facie restrictive regulatory rules was carried out under Art 101(1) TFEU, but the same test applies in Art 102 TFEU. Rules and decisions by sports governing bodies that satisfy this test constitute ancillary restraints that do not breach TFEU competition provisions. This enables sports federations to adopt rules pursuing legitimate public interest objectives that are inherent in proper organisation of competitions and enforce them by means of proportionate sanctions necessary to ensure compliance. The Meca-Medina test essentially reproduces the objective justification test from the internal market (such as under C-55/94 Gebhard) and when both sets of provisions apply to the case, the convergence of outcome is inevitable.

In April 2021, European Super League (ESL) proposed a new, virtually closed, cross-border football competition consisting of the top 20 elite European clubs to rival Champions League, the flagship competition organised by the European football governing body (UEFA). UEFA reacted by threatening the participating clubs with sanctions and exclusion from their domestic leagues from which the clubs derive most of their revenues. As a result of the threats, the Super League project was brought to a standstill. The agreement between elite clubs to form a closed league raises the suspicion of Art. 101 TFEU infringement in so far as it forecloses the most lucrative part of the market for other participants and acts as a detriment for financial viability of domestic leagues. Furthermore, according to Advocate General in para. 285 of C-415/93 Bosman, football clubs in a professional league are united by such economic links that they can constitute collectively dominant undertakings and are therefore not immune from violating Art. 102 TFEU either. However, in para. 80 of the ESL case, the Court of Justice specifically pointed out that the Super League project was not on trial. Instead, one of the key questions referred to it by the Madrid Commercial Court, in which ESL instituted legal challenge, related to legality of Article 49 of the UEFA Statutes and threatened sanctions. Art. 49 conferred onto UEFA the status of the exclusive organiser of crossborder competitions and required third parties to obtain UEFA’s prior approval should they wish to organise competition involving clubs from two or more UEFA associations. The criteria to obtain such approval were never specified. One of the objectives of the ESL lawsuit was to remove the regulatory authority of the football governing bodies to act as gatekeepers controlling the access to the market for organisation of cross-border club competitions. This is the relevant product market on which UEFA not only performs the gatekeeping function,

but also holds a commercial monopoly. Despite the glaring conflict of interest, the conflation of the regulatory and commercial functions in a single sports federation and the legality of prior authorisation systems per se were never seriously questioned by the Court of Justice. In cases such as C-49/07 MOTOE, T-93/18 ISU, and C-1/12 OTOC, the existence of prior control mechanisms was not an issue and instead the focus was on examining the way that the monopolistic regulatory powers were exercised. According to MOTOE, the regulatory power of prior authorisation must be made subject to ‘restrictions, obligations and review’ to prevent arbitrary application and the distortion of competition by favouring own events. MOTOE also emphasised the obligation on the regulator to secure equality of opportunity between economic operators on the organisational market, including the access of prospective operators. There can be no discrimination in the demands placed on UEFA’s own club competitions and those planned by the third parties. Citing para. 99 of the judgment in OTOC, the General Court in ISU outlined the criteria that a system of prior authorisation for alternative competitions must fulfil. It said that any such system must rest on non-discriminatory, objective, transparent, verifiable, reviewable and proportionate requirements that are capable of ensuring effective access to the relevant market for the organisers of alternative events. On appeal, the Court of Justice in C-124/21 ISU confirmed these principles.

Echoing its previous jurisprudence, the Court of Justice in ESL confirmed the authority of UEFA to regulate access of third parties to organisational market but found its system of prior control incompatible with the competition provisions (and Art. 56 TFEU). It is important to emphasise that this finding was due to the lack of a framework for prior approval and sanctioning powers providing for substantive criteria and detailed procedural rules capable of ensuring that they are transparent, objective, precise, non-discriminatory, and proportionate. These safeguards would eliminate the risk of abuse of dominant position and arbitrary decisions. The Court of Justice did not object to, or directly deal with the substance of the UEFA’s decision to issue threats of sanctions.

The judgment in ESL did not imply that the Super League project was legal. In fact, it is apparent from para. 144 that the closed format of the ESL competition would be found incompatible if tested under EU law. According to the same paragraph, the specific characteristics of sport support a finding that it is legitimate for UEFA to promote ‘the holding of sporting competitions based on equal opportunities and merit’ via prior control of competitions. The substance of UEFA’s decision to issue threats to a closed Super League was therefore very likely compatible with the legal requirements, had it been taken within the proper framework. On the day when the Court of Justice delivered its ESL judgment, A22 (the management agency for ESL) published its new proposed format for the ESL competition. It involved 64 clubs split into three league tiers. Only 20 clubs from the third tier are subject to promotion and relegation with the domestic leagues, representing about 31% of the ‘fluid places’ in the league in contrast to the widely criticised and rejected initial proposal where 25% (5 out of 20) places in the league were ‘fluid’. In this sense, there is not much difference between the new and the rejected ESL format.

While the judgment in ESL did not bring any groundbreaking legal novelties, the Court made an important adjustment in approach and reversed the order in which it carried out its assessment, which resulted in limiting the scope of Meca-Medina justification framework. The adjusted analytical approach removed the benefit of recourse to Meca-Medina framework for the ‘by object’ restrictions under Art 101 TFEU and rules which or ‘by their

very nature’ breach Article 102 TFEU. This is the category where the Court placed UEFA’s prior authorisation system enforced by sanctions. After ESL, it appears that ‘by object’ restrictions can only be exempted under Art. 101(3) TFEU and the equivalent economic efficiency under Art. 102 TFEU. It will be interesting to observe whether in the future the approach in internal market law will follow this pattern. In C-415/93 Bosman, a case decided under Art. 45 TFEU, the directly discriminatory rule benefited from open list of justifications, contrary to general jurisprudence that grants such benefit only to indirectly discriminatory measures. Direct discrimination for national representative teams will certainly remain justified, but if narrowing of the scope of justification in ESL is followed, other types of directly discriminatory measures might be confined to TFEU-based derogations (public policy, public security and public health).

In anticipation of the Court’s criticism of its prior authorisation system, in June 2022 UEFA has quietly issued Authorisation Rules Governing International Club Competitions. It supplied the detailed requirements and procedure implementing Art. 49 of UEFA Statutes, as well as applicable sanctions. Although it is clear which information must be submitted, there is no clarity for the applicants regarding the expected substantive value of some requirements. For example, Article 4(1)(d) of the Authorisation Rules makes it clear that the aspiring organiser must submit the details of the proposed solidarity payments. The percentage of the revenues that will be accepted as adequate to comply with this condition is not specified and the requirement not precise enough. However, based on the now well-established legal parameters, it is safe to assume that solidarity contributions matching those made by equivalent UEFA’s competitions, will fulfil the solidarity criteria. The requirement in Art. 7(4) of the Authorisation Rules is more controversial as it reserves certain top clubs for UEFA’s competitions, including the winners of top domestic leagues and titleholders of UEFA Champions League and Europa League. The listed justifications for this rule include protecting the sporting merit of UEFA club competitions, the good functioning of the international calendar, and the health and safety of players. Whether these rules will be contested and whether the new ESL proposed format will be approved by UEFA Executive Council remains to be seen.

Dr. Katarina Pijetlovic is Associate Professor at Catolica Global School of Law, Lisbon.

SUGGESTED CITATION: Pijetlovic , K.; “Legality of UEFA’s Prior Authorisation System in C-333/21 European Super League”, EU Law Live, 22/02/2024, https://eulawlive.com/competition-corner/legality-of-uefas-prior-authorisation-system-in-c-333-21-european-super-league-by-dr-katarinapijetlovic/

THE LONG READ

A Rulebook for Future Pandemics

By David Pérez de Lamo 1

On 5 December 2023, the Grand Chamber of the Court of Justice ruled on the compatibility of Belgian emergency measures limiting free movement of persons to contain the spread of the COVID-19 pandemic with Articles 4, 5, 27 and 29 of Directive 2004/38/EC (the ‘Citizens’ Rights Directive’ or ‘CRD’)2 and Articles 22, 23 and 25 of Regulation (EU) 2016/399 (the ‘Schengen Borders Code’ or ‘SBC’),3 informed by general principles of EU law (Nordic Info vs Belgium, the ‘Judgment’).4 The Court broadly followed the Opinion of Advocate General Emiliou of 7 September 2023 (the ‘AG Opinion’).5

The judgment is highly relevant because, in assessing the compatibility of the specific Belgian containment measures, the Court went out of its way (possibly anticipating future crises) to set out a comprehensive ‘rulebook’ governing Member State emergency measures limiting free movement of persons to contain public health crises, such as widespread epidemics. The judgment is short, but packed with important rulings and guidance for Member States and national courts. In just over 21 pages, and merely 10 pages of ‘substance’, the Court practically summons the full line-up of general principles of EU law (i.e., legal certainty, good administration, effective judicial protection, administrative redress, proportionality, precautionary principle, burden of proof, etc) and balances sensitive national objectives of recognised general interest (i.e., public health, public policy and public security) with central EU law provisions (i.e., free movement of EU citizens and their families, the fundamental right to private and family life, and the freedom to conduct a business).

Below I present the context and the facts of the case (see Sections 1 and 2 below), discuss the two ‘chapters’ of the ‘Pandemic Rulebook’, namely the compatibility of containment measures with the Citizens’ Rights Directive and the Schengen Borders Code (see Sections 3 and 4 below), and finally conclude (see Section 5 below).

1. David Pérez de Lamo is an Associate at an international law firm in Brussels and holds an LL.M. in EU Law and Economic Analysis from the College of Europe (Bruges). He has published contributions in EU competition law and constitutional law. The views expressed are my own and do not reflect the views of my employer/firm.

2. Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, OJ L 158, 30.4.2004, p. 77–123.

3. Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ L 77, 23.3.2016, p. 1–52.

4. Judgment of the Court of Justice of 5 December 2023, Nordic Info v Belgium (C-128/22, EU:C:2023:951).

5. Advocate General Emiliou’s Opinion of 7 September 2023 in Nordic Info v Belgium (C-128/22, EU:C:2023:645).

1. COVID-19 Strikes, Governments Respond, Legal Challenges Are Sought

2020 beheld a crisis unprecedented in modern times. Its onset was sudden. Its spread was rapid. And its effects were devastating. The world was unprepared. Epidemiologists had already widely noted the risk of ‘spill-over’ of diseases from animals to humans (a process called ‘zoonosis’).6 There were numerous warning signs (well-known diseases of zoonotic origin include Ebola, Malaria and HIV), even very recently (famously, the ‘Spanish Flu’ in 1918-1919,7 but also SARS in 2003,8 H1N1 in 2009-2010,9 and MERS in 2012,10 among other less well-known but serious cases).11 The next pandemic was only a question of time. Yet, ‘no one’ expected what was to come.

In December 2019, clusters of patients in the city of Wuhan, in China’s Hubei Province, began experiencing symptoms of an atypical pneumonia-like illness that did not respond well to standard treatments. In January 2020, public health officials identified a novel coronavirus. Foreboding videos of Chinese hospitals being built at lightning speed, in just days, were viewed with scepticism around the globe. In February 2020, the Philippines reported the first death outside China; a few days later, on the other side of the world, France announced the first death in Europe; Dr. Li Wenliang, a Chinese doctor who tried to raise the alarm, died; and the WHO proposed an official name for the malady: coronavirus disease 2019, shortened as ‘COVID-19’. However, it would not be until 11 March 2020, after more than 118,000 cases in 114 countries and 4,291 deaths, that the World Health Organisation (‘WHO’) would declare COVID-19 as a pandemic and raised the threat to the maximum level on 16 March 2020.12 Four years later, the WHO counts over 773 million reported cases and close to 7 million reported deaths.13 Uncounted millions suffered and died from COVID-19 or indirectly as ‘collateral’. COVID-19 is still, and will be, with us.

In the profound uncertainty surrounding the COVID-19 outbreak, reasonably fearing disastrous consequences, governments responded with draconian force, locking down entire populations, imposing social-distancing and containment measures, and spending record budgets to mitigate the health, social and economic crisis. In the EU, COVID-19 put a temporary, but harsh and protracted, end to over seven decades of ‘free movement’ and two decades of ‘borderless Europe’.14 Suddenly, we went back in time. Member States reinstated border-like controls and formalities, turning them on and off as the COVID-19 pandemic waves hit their shores. Timeless were, however, the eerie pictures of Europe’s most emblematic landmarks, bustling avenues, and animated terraces, all empty, contrasting, in some places like Brussels, with a blooming spring, the sunniest in memory.

6. See e.g., D. Quammen, Spillover: Animal Infections and the Next Human Pandemic, 2012.

7. J. M. Barry, The Great Influenza, Viking Press, 2004.

8. World Health Organisation, ‘Severe Acute Respiratory Syndrome (SARS)’.

9. World Health Organisation, ‘Influenza A (H1N1)’.

10. World Health Organisation, ‘Middle East respiratory syndrome coronavirus (MERS-CoV)’.

11. World Health Organisation, ‘Hendra virus infection’.

12. See detailed timelines at e.g., Centers for Diseas Control and Prevention, ‘COVID-19 Timeline’ and The New York Times, ‘A Timeline of the Coronavirus Pandemic’

13. World Health Organisation, ‘COVID-19 dashboard ’.

14. S. Koikkalainen, ‘Borderless Europe: Seven Decades of Free Movement ’, Migration Policy Institute, 2021.

Government measures were praised and criticised with similar effusiveness, to the swing of the political gavel, sometimes with the deceptive benefit of hindsight. They created social unrest and seriously affected all citizens and businesses (arguably mitigating a worse evil). As expected, legal challenges were brought against containment measures before national courts. For instance, on 14 July 2021, the Spanish Constitutional Court notably ruled that Royal Decree 463/2020 of 14 March, and its subsequent amendments, declaring the state of emergency for the management of the health crisis caused by COVID-19,15 was partially unconstitutional, particularly the provisions establishing general confinement measures, insofar as the Government had effectively ‘suspended’ free movement rights guaranteed by Article 19 of the Spanish Constitution16 using an incorrect legal basis, instead of the pertinent and more onerous Article 55 of the Spanish Constitution.17 The first case brought before the EU Courts concerning the compatibility of national measures to contain the COVID-19 pandemic with EU law was Nordic Info v Belgium

2. Belgium Enacts Restrictive Measures, Nordic Info Seeks Damages

Following in the footsteps of other Member States across the EU, on 30 June 2020, Belgium adopted Article 18 of the Ministerial Decree on emergency measures to limit the spread of the COVID-19 coronavirus, amended on 30 July 2020, which: (i) prohibited all non-essential travel to/from Belgium, and, derogating therefrom; (ii) authorised travel from Belgium to all countries of the EU, the Schengen area and the United Kingdom, and vice versa, with the exception of territories designated as ‘red zones’, based on their epidemiological situation, in a list published on the website of the Federal Public Service for Foreign Affairs. In addition, any traveller arriving to Belgium from a country classified as a ‘red zone’ had to undergo screening tests and observe quarantine. Pursuant to Article 187 of the Law of Civil Security, the infringement of these provisions was punishable by a term of imprisonment of eight days to three months and/or a fine of EUR 26-500 (all together, the ‘Belgian Legislation’).

On 12 July 2020, Belgium classified Sweden as a ‘red zone’ and, on 15 July 2020, as an ‘orange zone’, which entailed that travel to and from Sweden was no longer prohibited, but remained not recommended. Nordic Info, an agency specialising in travel to and from Scandinavia, claimed that, as a result thereof, it had to cancel all scheduled trips from Belgium to Sweden during the 2020 summer season in order to comply with the Belgian Legislation. Nordic Info initiated proceedings before the Brussels Court of First Instance seeking damages compensation from the Belgian State and raising a plea of incompatibility of the Belgian Legislation with: (i) the Citizens’ Rights Directive and national provisions transposing Articles 27-31 CRD; and (ii) the Schengen Borders Code.

15. Real Decreto 463/2020, de 14 de marzo, por el que se declara el estado de alarma para la gestión de la situación de crisis sanitaria ocasionada por el COVID-19, «BOE» núm. 67.

16. Constitución Española, «BOE» núm. 311, de 29/12/1978.

17. Judgment of the Spanish Constitutional Court of 14 July 2021, 148/2021, ES:TC:2021:148. For commentary, see e.g., G. Domenech-Pascual, ‘Dogmatism Versus Pragmatism. On the Fundamental Rights Restrictions Aimed at Fighting COVID-19’ Indret, 2021; J. A. García Amado, ‘Ideas de Constitución y metodologías constitucionales en la sentencia sobre el estado de alarma’, Almacén de derecho, 2022.

The Brussels Court of First Instance raised these issues to the Court of Justice via a request for a preliminary ruling in February 2022, outlining the interpretative doubts, which I address below.18

3. Pandemic Rulebook, Chapter 1: Compatibility of Restrictive Measures with the Citizens’ Rights Directive

3.1 Member States Can, As a Matter of Principle, Restrict Free Movement to Respond to Pandemics

Article 27(1) CRD provides that Member States may restrict freedom of movement and residence of Union citizens and their family members on grounds of public policy, public security or public health, but not to serve economic ends. According to Article 29(1) CRD on ‘public health’, the only diseases justifying measures restricting freedom of movement are those with epidemic potential as defined by the WHO and other infectious diseases or contagious parasitic diseases. On this basis, the Court affirmed that ‘Member States may, a fortiori, adopt […] measures restricting freedom of movement in order to respond to a threat linked to a contagious infectious disease which is of a pandemic nature recognised by the WHO’, as did Belgium.19

3.2 Member States Can Restrict Both Entry and Exit

The Court added that, despite Articles 27 and 29 CRD being in Chapter VI entitled ‘Restrictions on the right of entry […]’ and Articles 29(2) and (3) CRD being devoted specifically to restrictions on the right of entry (i.e., the right to be admitted to the territory of a Member State), Member States may also restrict the ‘right to exit’ (i.e., the right to leave the territory of a Member State to travel to another Member State) because: (i) ‘freedom of movement’ (Articles 20(2)(a) and 21(1) TFEU) encompasses both components (Articles 1(a), 4 and 5 CRD); and (ii) if the restrictions imposed to curb an epidemic disease under Articles 27 and 29 CRD were only applicable to the right to entry, those measures would be logically rendered ineffective.20

Possibly, the prevailing references to the ‘right to entry’ in the title and body of Chapter VI are explained by the legislator having in mind the most common situation, which typically is that a Member State would restrict entry to its territory on public policy, public security or public health grounds, and not so much exit therefrom, which would be for other Member States to meet by limiting entry to their territories. The widespread effects of COVID-19 tested the legislator’s assumption and the resulting text of Chapter VI, which the Court reasonably extended in light of the context and objectives of the CRD, testing in turn the Court’s working assumption that interpretatio cessat in claris21 (i.e., a clear text may sometimes be overridden by even clearer context and objectives).

18. Summary of the Brussels Court of First Instance’s request for a preliminary ruling available here

19. Judgment, paras 49-54; emphasis added.

20. Judgment, paras 55-59.

21. K. Lenaerts and J. A. Gutiérrez-Fons, Les méthodes d’interprétation de la Cour de justice de l’Union européenne, Larcier, 2020, paras 13, 16 and 18.

3.3 Member States May Adopt Acts of General Application

By contrast to restrictive measures imposed on public policy or public security grounds, which, under Article 27(2) CRD, must ‘be based exclusively on the personal conduct of the individual concerned’ and rely on ‘the particulars of the case [and not] considerations of general prevention’, the Court stated that restrictive measures imposed on public health grounds may take the form of an act of general application, given that epidemic diseases ‘on account of their very characteristics, […] affect entire populations’.22

In its mission to uphold EU citizenship, the Court had interpreted limitations to free movement on general interest grounds ‘strictly’,23 even if allowing certain discretion to Member States (e.g., in defining what constitutes public health, public policy and public security, as defining these concepts in concreto may impinge on national sovereignty),24 by consistently emphasising the need to rely on the personal conduct of the individual concerned and the particulars of the case, i.e., Member States had to put forward ‘precise evidence’ and ‘general assertions’ of public-policy interests were not sufficient.25 In Nordic Info v Belgium, the Court reasonably takes a step back from Article 27(2) CRD and the abovementioned case law, this time unrestrained by text because Article 27(2) CRD does not refer to ‘public health’, and relies on Article 29 CRD on ‘public health’ that has a different ‘exceptionality’ rationale, and for that reason is laid down separately.

3.4 Member States Have to Respect Procedural Safeguards, But Enjoy Leeway

Article 27(1) CRD further provides that restrictive measures imposed on public health grounds are ‘[s]ubject to the provisions of this Chapter’, particularly the procedural safeguards laid down in Articles 30-32 CRD. While the Court recognised that ‘the terms and expressions used in Articles 30 to 32 call to mind restrictive measures laid down in the form of an individual decision’, the Court concluded that those safeguards must also apply to restrictive measures of general application.26 AG Emiliou had noted that ‘the terms ‘measures’ and ‘decisions’ are used seemingly interchangeably in the [CRD]’.27 And more broadly, this interpretation flows from recitals 25-27 CRD, as well as the general principles of legal certainty and good administration, and the right to effective judicial protection ex Article 47(1) CFREU.28

Accordingly, restrictive measures taking the form of an act of general application must mutatis mutandis:

i. ‘be brought to the attention of the public by an official publication of the Member State […] and by means

22. Judgment, paras 62-64.

23. Judgment of the Court of Justice of 4 December 1974, Van Duyn v Home Office (C-41/74, EU:C:1974:133, para 18).

24. Van Duyn v Home Office, para 18 in fine.

25. See e.g., Judgment of the Court of Justice of 22 December 2008, Commission v Austria (C-161/07, EU:C:2008:759, para 37). See further C. Barnard, The Substantive Law of the EU, The Four Freedoms (5th ed.), Oxford University Press, pp. 450 et seq.

26. Judgment, paras 65-67.

27. AG Opinion, para 73.

28. Judgment, paras 68-72; AG Opinion, paras 73 and 115.

of sufficient official media coverage so that the content and effects of that act can be understood, as well as the specific and full public health grounds relied on […], and […] the remedies and time limits for challenging it […]’ per Article 30 CRD;29

ii. be open to challenge before national courts and, where appropriate, administrative redress procedures, either by direct action or, if necessary, incidentally in an action against an act implementing the general act per Article 31 CRD;30

iii. be non-discriminatory per recital 31 CRD and Article 21 CFREU;31

iv. be appropriate, necessary and proportionate per Article 30(3) CRD (and as self-standing general principles of EU law), which, inter alia, require that the restrictive measures:

a) be balanced against other rights and freedoms affected by them, considering that ‘the health and life of humans rank foremost among the assets and interests protected by the TFEU’;

b) take account of the discretion of Member States in determining the degree of protection that they wish to afford to public health, which may therefore vary between Member States without that difference in itself making a given measure disproportionate;

c) may be adopted preventively, based on the precautionary principle, before the risks to human health become fully apparent; and

d) be supported by appropriate evidence, having the Member State the burden of proof.32

The Court of Justice ‘deferred’ to the national court to assess the compatibility of the Belgian Legislation with the abovementioned principles based on the facts of the case; however, subject to very detailed ‘guidance’, or rather concrete instructions (possibly also addressed to national authorities and courts facing future pandemics), as the Court typically does in such high-stakes cases.33

In assessing the appropriateness of the contested restrictive measures, the national court must inter alia consider:

- ‘whether, in the light of the scientific data commonly accepted at the [relevant] time […], concerning the COVID-19 virus, of the trend in cases of infection and mortality […] and in view of the [ensuing] degree of uncertainty […], those measures […] were appropriate, having regard to the national healthcare system being overwhelmed or the risk thereof and to the summer period characterised by an increase in leisure travel and

29. Judgment, paras 71 and 73.

30. Judgment, para 72.

31. Judgment, para 74.

32. Judgment, paras 75-80.

33. Judgment, paras 81 et seq

tourism, which are conducive to an increase in infections, to contain or curb the spread of that virus […], as the scientific community, the EU institutions and the WHO appeared to accept’;34

- other similar measures adopted by the Member States, which were accompanied and coordinated by the EU;35 and

- the consistency of Belgium’s broader strategy and measures to limit the spread of COVID-19 (e.g., testing, quarantine obligations and contact tracing), considering that they were applied indistinctly to any traveller entering the Belgian territory.36

In assessing the necessity of the contested restrictive measures, the national court must inter alia consider:

- that the restrictive measures prohibited only non-essential travel and solely to/from Member States regarded as high-risk zones, based on lists that were frequently updated;37

- that screening and quarantine measures were temporary and aimed at travellers coming from Member States where they had been exposed to an increased risk of infection so as to detect and prevent the spread of COVID19;38

- whether it is ‘evident […] in the light […] of the available information on the COVID-19 virus at the [relevant] facts’, paying due deference to the abovementioned Member State discretion and the precautionary principle, that the obligations to maintain social distancing and/or wear a mask and to regularly carry out screening tests, by themselves, would have sufficed to achieve the same result as the Belgian Legislation;39 and

- in that regard, ‘the epidemiological situation in Belgium at the [relevant] time […], the extent to which the Belgian health system was overstretched or overwhelmed, the risk of an uncontrollable or severe resumption of infections […], the fact that certain persons carrying the disease could be asymptomatic, incubating or testing negative in screening tests, the need to target as many people as possible in order to curb the spread of the disease […] and to isolate infected persons and the combined effects, in terms of the protection of the population […]’.40

In assessing the proportionality stricto sensu of the contested restrictive measures, the national court must reconcile and balance the objective of protecting public health with the fundamental rights and principles affected, inter alia considering:

34. Judgment, para 82.

35. Judgment, para 83.

36. Judgment, paras 54, 83-86.

37. Judgment, para 88.

38. Judgment, para 89.

39. Judgment, para 90.

40. Judgment, para 91.

- regarding the restriction on freedom of movement of EU citizens and their families ex Articles 20(2)(a) and 21 TFEU and Article 45 CFREU, and the right to respect their private and family life ex Article 7 CFREU, that the restrictive measures ‘did not prohibit […] travel justified by imperative family reasons and that the exit bans were lifted as soon as the Member State of destination concerned was no longer classified as a high-risk zone on the basis of a regular re-evaluation of its situation’;41 and

- regarding the freedom to conduct business ex Article 16 CFREU, that ‘it did not seem unreasonable to prohibit on a temporary basis non-essential travel to [high-risk] Member States until their public health situation improved’.42

Moreover, the national court must verify the proportionality of the compulsory quarantine imposed on every traveller entering Belgium from a high-risk Member State considering that ‘(i) there was a significant probability that such a traveller would carry the same virus and, in particular where he or she was incubating or asymptomatic, would infect other persons outside his or her household […] and (ii) the screening tests may have proved to be falsely negative’.43 By contrast, the Court conclusively found that the compulsory screening measures did not meaningfully restrict other freedoms ‘on account of the rapidity of the tests’.44

4. Pandemic Rulebook, Chapter 2: Compatibility of Restrictive Measures with the Schengen Borders Code

Articles 22-23 SBC preclude internal border controls within the Union, without that affecting the exercise of police powers by the competent national authorities, so long as those police powers do not have ‘an effect equivalent to border checks’. Article 25 SBC allows Member States, as a last resort, to temporarily reintroduce border controls in the event of a serious threat to public policy or internal security (public health is not explicitly mentioned), subject to the conditions set out in Articles 26-28 SBC. Belgium had introduced a series of border controls to verify compliance with the Belgian Legislation, which Nordic Info indirectly challenged before the Court.45

Once again, the Court of Justice deferred to the national court to assess the compatibility of the national border controls with the abovementioned provisions, subject to detailed guidance.46 In particular, the national court has to observe the non-exhaustive indicia set out in Article 23(a)(i)-(iv) SBC, considering inter alia that:

41. Judgment, para 94.

42. Judgment, para 95.

43. Judgment, para 97.

44. Judgment, para 96.

45. See details at Judgment, paras 107-108.

46. Judgment, para 109.

- ‘the [Belgian Legislation] appear[s] to differ in certain essential respects from those pursued by border checks’ insofar as ‘the main objective of those controls was to limit, as a matter of urgency, the spread of COVID-19 […]’;47

- threats to public health may fall within the scope of police powers set out in Article 23 SBC, even if not expressly referred to in Article 23(a)(ii) SBC, because the controls were ‘implemented in the light of circumstances objectively giving rise to a risk of a grave and serious harm to public health’ in light of ‘the extreme difficulty, or even the impossibility, of determining in advance which persons using various modes of transport [travelled to/ from high-risk] Member States’;48 and

- police measures must be ‘devised and executed in a manner clearly distinct from systematic checks’ and based on ‘spot-checks’ pursuant to Article 23(a)(iii)-(iv) SBC, which Belgium claimed to have respected by conducting random checks.49

Finally, the Court of Justice held that, in any event, ‘[a] pandemic of a scale such as that of COVID-19, characterised by a contagious disease capable of causing death among various categories of the population and overstretching or even overwhelming national healthcare systems’ can be subsumed as a ‘public policy’ or ‘internal security’ concern under Article 25 SBC, even if public health is not explicitly listed therein as a self-standing derogation ground, thus enabling Member States to temporarily reintroduce border controls subject to compliance with the conditions set out in Articles 25-28 SBC.50

5. Final Comments

As noted by AG Emiliou,51 the Court had previously dealt with cases concerning COVID-19 incidentally,52 the lawfulness of EU emergency measures to protect against the ‘mad cow’ disease outbreak,53 as well as the underlying issue of balancing measures taken by public authorities to tackle general threats to society (e.g., fight against crime and terrorism) with the fundamental rights of the persons affected.54 Nordic Info v Belgium is, however, the first precedent where the Court of Justice reviewed the compatibility of national measures to contain the COVID-19 pandemic with EU law, particularly the Citizens’ Rights Directive and the Schengen Borders Code.

In my view, the Court did not allocate the case to the Grand Chamber due to the complexity of the legal issues, whose solution was expected and, allow me to simplify, ‘relatively straight-forward’. The Court allocated the case

47. Judgment, para 114.

48. Judgment, para 117-120.

49. Judgment, paras 121-122.

50. Judgment, paras 123-128.

51. AG Opinion, para 4.

52. See e.g., Judgment of the Court of Justice of 14 September 2023, RTG v Tuk Tuk Travel (C-83/22, EU:C:2023:664).

53. Judgment of the Court of Justice of 5 May 1998, United Kingdom v Commission (C-180/96, EU:C:1998:192).

54. Judgment of the Court of Justice of 6 October 2020, La Quadrature du Net and Others (C-511/18, C-512/18 and C-520/18, EU:C:2020:791).

to the Grand Chamber because of the transversal implications of the case, as it covered many general principles of EU law, fundamental provisions and sensitive issues.55 The judgment bears the mark of the Court’s signature ‘broad brushstroke’. But the Court fulfilled its role and went as far as possible to provide detailed guidance to the referring national court (blurring as always the boundaries between law and fact, between its own competence and that of national courts),56 while taking the opportunity to ‘future- proof’ against possible epidemics by setting out the basic EU law standards and principles governing national emergency measures to tackle widespread crises.

Reading between the lines, the Court leaves a message. In short, it is possible that our understanding of COVID-19 and the appropriate epidemiological response has evolved, and we may even have realised that certain measures might have been ineffective or disproportionate ex post (there are countless reports in opposite directions),57 but the Court invites the national court to situate itself at the relevant time, with all the considerable constraints, profound uncertainty, daunting risks, and preliminary scientific/inter-governmental consensus, before making a definitive ruling on the matter. In my view, it will be hard, maybe even questionable, for the national court alone to “replace” the Belgian Government’s assessment, which, in view of those complexities, should enjoy a very wide margin of appreciation, unless, that is, any manifest errors can be discerned.

It will be interesting to see how the Belgian court applies the Pandemics Rulebook in concreto, though the Court of Justice did not leave much leeway.

Another possible point of tension may be the systematicity of the controls implemented by Belgium (which the Government seemed to understate as ‘random’ and the Court expressly invited the national court to verify) and the extent to which the national court may be able to ‘clearly’ distinguish them from measures having an effect equivalent to border checks in the sense of Article 23(a)(iii)-(iv) SBC. While the Court strongly caveated all other findings, the Court seemed to struggle to reconcile (i) the extraordinary circumstances and the willingness to continue affording discretion to Member States with (ii) the wording of Article 23(a)(iii)-(iv) SBC, which possibly hints at a particular legislative choice: that the EU generally remains ‘borderless’ (at least internally). The national court may overcome this obstacle by relying on Article 25 SBC, the dedicated provision, but it will still have to meet the seemingly onerous criteria set out in the ensuing Articles 26-28 SBC.

55. See Introduction and Sections 3 and 4 above.

56. V. Passalacqua and F. Costamagna, ‘ The law and facts of the preliminary reference procedure: a critical assessment of the EU Court of Justice’s source of knowledge’, European Law Open, 2023, pp. 322-344.

57. See e.g., A. Radulescu et al, ‘Management strategies in a SEIR-type model of COVID-19 community spread ’, Nature, Scientific Reports, 2020; G. J. Milne et al, ‘A modelling analysis of the effectiveness of second wave COVID-19 response strategies in Austrialia’, Nature, Scientific Reports, 2021; M. Schröder, ‘COVID-19 in South Africa: outbreak despite interventions’, Nature, Scientific Reports, 2021, etc.

History and science tell us that, unfortunately, COVID-19 will not be the last pandemic. The ‘solution’ will not come from the Court. It will come from the hard lessons learned from COVID-19 and the preventive efforts that international organisations, governments, businesses and citizens must undertake. Dare I say that we failed the ‘dress rehearsal’, even if in the end we overcame it (at immense cost). Let us be prepared for ‘the next one’.

SUGGESTED CITATION: David Pérez de Lamo: “A Rulebook for Future Pandemics”, EU Law Live Weekend Edition nº 175, https://eulawlive.com/ weekend-edition/weekend-edition-no175/

HIGHLIGHT F THE WEEK S O

Commission Recommendation (EU) 2024/539 on the regulatory promotion of gigabit connectivity, published in OJ

Monday 19 February

The European Commission issued Recommendation 2024/539 on February 6, 2024, emphasising the crucial role of gigabit connectivity in the digital transition and the Union’s vision for 2030 outlined in the Digital Compass Communication and Decision (EU) 2022/2481.

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General Court to hear actions against Commission decisions revoking decision to grant authorisation for marketing of medicinal product for human use

Monday 19 February

Official publication was made of three actions for annulment brought by pharmaceutical companies against Commission Implementing Decisions revoking Decision C(2022) 3252 (final) granting marketing authorisation under Regulation 726/2004 of the European Parliament and of the Council for dimethyl fumarate, a medicinal product for human use.

Read on EU Law Live

Preliminary ruling requests on compensation for vehicles with prohibited defeat devices, published in OJ

Monday 19 February

The Landgericht Ravensburg (Germany) sought clarification from the Court of Justice regarding several cases revolving around vehicles equipped with prohibited defeat devices, possibly violating Regulation 715/2007: Volkswagen (C-666/23) and Volkswagen (C-668/23).

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PAN Europe v Commission: challenging the renewal of abamectin approval

Monday 19 February

Pesticide Action Network Europe (PAN Europe) brought an action against the European Commission (Case T-1164/23) challenging Decision Ares(2023)6685163, which renewed the approval of the active substance ‘abamectin’ for 15 years under Commission Implementing Regulation (EU) 2023/515.

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Preliminary ruling request concerning cash declaration obligation in cross-border travel

Monday 19 February

Official publication was made of a request for a preliminary ruling from the Riigikohus (Estonia) lodged on 5 December 2023 on how is the exchange rate to be used as the basis for establishing the value of cash within the meaning of Article 3(1) of Regulation 2018/1672 (2) of the European Parliament and of the Council to be determined in a situation involving a currency the exchange rate for which is not published by the European Central Bank: Alenopik (C-745/23).

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Preliminary references on the interpretation of the notion of ‘State aid’, in context of a contribution to companies participating in realisation program for foundry sector

Monday 19 February

The Official Journal of the EU published two preliminary ruling requests from the Consiglio di Stato (Italy): Cividale and Flag (C-746/23); Duferco Italia Holding and Duferco Sertubi (C-747/23).

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Preliminary references on the interpretation of the notion of ‘State aid’, in context of a contribution to companies participating in realisation program for foundry sector

Monday 19 February

The Official Journal of the EU published two preliminary ruling requests from the Consiglio di Stato (Italy): Cividale and Flag (C-746/23); Duferco Italia Holding and Duferco Sertubi (C-747/23).

Read on EU Law Live

Commission launches first in-depth investigation under the Foreign Subsidies Regulation

Monday 19 February

The Commission initiated its first in-depth investigation, under the Foreign Subsidies Regulation (‘FSR’), which enables the Commission to address distortions caused by foreign subsidies, and thereby allows the EU to ensure a level playing field for all companies operating in the internal market while remaining open to trade and investment.

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Commission finds Romanian aid to Blue Air to be incompatible with EU State aid rules

Monday 19 February

The European Commission found that Blue Air’s restructuring plan was not capable of restoring the airline’s long-term viability and it is therefore incompatible with EU State aid rules.

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EU-Rwanda Partnership: nurturing sustainable raw materials value chains for economic growth

Monday 19 February

The EU and Rwanda signed a Memorandum of Understanding (MoU) to foster sustainable and resilient value chains for critical raw materials, focusing on five key areas of cooperation.

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Commission initiates formal proceedings against TikTok, under the DSA

Monday 19 February

The European Commission opened formal proceedings, under the Digital Services Act (DSA), to assess whether TikTok has breached the protection of minors, advertising transparency, data access for researchers, as well as the risk management of addictive design and harmful content.

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EU introduces humanitarian exception to sanctions

Monday 19 February

The Council of the EU decided to amend the EU framework on restrictive measures to combat terrorism, introducing a humanitarian exception to asset freeze measures for an initial period of 12 months, allowing certain humanitarian actors and EU-certified organisations and agencies, to engage in transactions with listed individuals and entities without prior authorization.

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Court of Justice streaming today’s hearing of case concerning the interpretation of Article 34 of Qualification Directive

Tuesday 20 February

The Court of Justice’s Grand Chamber hearing in Keren (C-158/23), a case concerning a preliminary reference on the interpretation of Article 34 of the Qualification Directive, specifically, whether the system of civic integration in the Netherlands satisfies the obligation, laid down in that article, to ensure that beneficiaries of international protection can access integration programmes or to create pre-conditions which guarantee access to such programmes, was streamed on the Court’s website.

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ECB publishes amended Guide to internal models

Tuesday 20 February

Following a public consultation, the European Central Bank (ECB) published its final revised Guide to internal models, which showcases how the ECB understands the rules banks must follow when they use internal models.

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European Ombudsman closes query by the Basque Ombudsman regarding the free movement restrictions at a border crossing between Spain and France

Tuesday 20 February

The European Ombudsman highlighted that the concern raised by the Basque Ombudsman, that is the effect on crossborder regions or temporary border closures, will form part of the assessment that will be required to be carried out before such border controls are put in place in the future.

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Two regulations on fluorinated greenhouse gases and on substances that deplete the ozone layer, published in OJ

Tuesday 20 February

Official publication was made of Regulation 2024/573 of the European Parliament and of the Council on fluorinated greenhouse gases, amending Directive 2019/1937 and repealing Regulation 517/2014 and Regulation 2024/590 of the European Parliament and of the Council of 7 February 2024 on substances that deplete the ozone layer, and repealing Regulation 1005/2009.

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Council and European Parliament negotiators reached a provisional political agreement on a regulation to establish the first EU-level certification framework for carbon removals

Tuesday 20 February

Negotiators from the Council and the European Parliament reached a provisional agreement on the establishment of an EUlevel certification framework for carbon removals, aiming at accelerating the deployment of high-quality carbon removal and soil emission reduction activities within the EU, aligning with the EU’s climate neutrality goal by 2050.

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Court of Justice rules on the termination of fixed-term contracts under EU law

Tuesday 20 February

The Court of Justice delivered its judgment in X (Absence de motifs de résiliation) (C-715/20) on the interpretation of EU law where fixed-term contracts are terminated.

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ECtHR in Danileţ v. Romania: Violation of Article 10 ECHR, dismissal of complaint brought by Romanian judge under Article 8 ECHR

Tuesday 20 February

The European Court of Human Rights (ECtHR) delivered its judgment in Danileţ v. Romania (no. 16915/21) concerning a disciplinary penalty imposed on a judge – a two-month, 5% pay cut – by the National Judicial and Legal Service Commission for having posted two messages on his Facebook account, which had roughly 50,000 followers.

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Council removes certain jurisdictions from its list of non-cooperative jurisdictions for tax matters

Tuesday 20 February

The Council removed Bahamas, Belize, Seychelles and Turks and Caicos Islands from the list of non-cooperative jurisdictions for tax purposes.

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Council adopts new directive boosting rights of consumers in the context of green transition and circular economy

Tuesday 20 February

The Council adopted new rules empowering consumers for the green transition. Such rules will enhance the rights of the consumers by amending the unfair commercial practices directive (UCPD) and the consumer rights directive (CRD) and adapting them for the green transition and the circular economy.

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Council adopts new market data transparency rules under MiFIR and MiFID II

Tuesday 20 February

The Council approved amendments to the EU’s trading regulations, focusing on enhancing market data transparency to benefit investors and bolster the competitiveness of the EU’s capital markets.

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Council agrees on directive to strengthen equality bodies across EU

Tuesday 20 February

The Council finalised a directive aimed at bolstering the role of equality bodies throughout the EU in combating discrimination based on various grounds such as sex, race, religion, disability, age, and sexual orientation.

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Commission clears merger of Orange and MásMóvil, subject to fulfilment of commitments

Wednesday 21 February

Under the EU Merger Regulation, the European Commission approved the proposed merger of Orange and MásMóvil, operating in the mobile services sector, conditional upon full compliance with a commitments package offered by both undertakings.

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Notice of the expiry of certain anti-dumping measures on Chinese chamois leather, published in OJ

Wednesday 21 February

Official publication was made of a Notice (C/2024/1616) regarding the impending expiry of anti-dumping measures on chamois leather originating from the People’s Republic of China, in compliance with Article 11(2) of Regulation (EU) 2016/1036, which addresses protection against dumped imports from non-EU countries.

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Council and Parliament strike provisional deal on new rules governing EU air quality standards

Wednesday 21 February

The representatives of the Council and European Parliament reached a provisional political agreement on a proposal to set EU air quality standards to be attained with the aim of achieving a zero-pollution objective, thus contributing to a toxic-free environment in the EU by 2050.

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EU succeeds in WTO dispute over US duties on Spanish ripe olives

Wednesday 21 February

The World Trade Organization (WTO) affirmed the EU’s challenge against the US regarding its failure to comply with a ruling concerning ripe olives from Spain, thus underscoring a resounding victory for the EU, and highlighting the US’s noncompliance with the original panel’s recommendations.

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General Court upholds approval renewal of cypermethrin despite identified risks

Wednesday 21 February

The General Court delivered its judgment in PAN Europe v Commission (T-536/22) concerning approval renewal of cypermethrin, a widely used pyrethroid insecticide in the EU, faced scrutiny over its approval renewal due to identified risks, particularly affecting aquatic organisms and honeybees.

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General Court dismisses action for annulment concerning Commission’s Implementing Regulation registering ‘Halloumi’ as a protected designation of origin

Wednesday 21 February

The Tenth Chamber of the General Court delivered its judgment in Papouis Dairies and Others v Commission (T-361/21), a case concerning an action for annulment in regard to the Commission’s Implementing Regulation 2021/59 entering a name in the register of protected designations of origin and protected geographical indications (‘Χ μ ’ (Halloumi)/’Hellim’ (PDO)).

Read on EU Law Live

Action against Commission’s decision finding the Spanish Tax Lease System incompatible with EU State aid rules, dismissed by General Court

Wednesday 21 February

The General Court delivered its judgment in Telefónica Gestión Integral de Edificios y Servicios v Commission and Banco Santander v Commission (Joined cases T-29/14; T-31/14), a case concerning an action for annulment in connection to the Commission’s decision establishing the ‘Spanish Tax Lease System’ (‘STLS’) as new State aid that is incompatible with the internal market.

Read on EU Law Live

General Court dismisses claims for annulment and compensation for damages concerning Commission’s decision to use negotiated procedure without prior publication of contract for acquisition of disinfection robots

Wednesday 21 February

The General Court, sitting in its Extended Composition formation, delivered its judgment in a case concerning an action, by which the applicants sought, first, the annulment of the Commission’s decision to use a negotiated procedure without prior publication of a contract notice for the acquisition of disinfection robots, of the decision to award that contract, and of the decision to conclude the framework contracts with two operators, and a declaration that those framework contracts are null and void and, secondly, a compensation for the damage which they claim to have suffered as a result: Inivos and Inivos v Commission (T-38/21).

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General Court in NRW. Bank v CRU: none of the arguments put forward by the applicant being well-founded, the appeal should be dismissed in its entirety

Wednesday 21 February

The General Court delivered its judgment in NRW. Bank v CRU (T-466/16 RENV) concerning the appeal against decision SRB/ES/2022/23 of the Single Resolution Board (SRB) dated April 27, 2022, thus offering comprehensive insights into the calculation of ex ante contributions to the Single Resolution Fund (SRF) and the determination of the annual target level for the 2016 contribution period.

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EU unveils plans to enhance digital infrastructure for future innovation

Wednesday 21 February

The European Commission introduced a comprehensive set of initiatives aimed at advancing the innovation, security, and resilience of digital infrastructures in the EU.

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General Court judgments on anti-dumping duties: Sinopec Chongqing SVW Chemical and Inner Mongolia Shuangxin Environment-Friendly Material v Commission

Wednesday 21 February

The General Court delivered its judgments in Sinopec Chongqing SVW Chemical and Others v Commission (T-762/20) and in Inner Mongolia Shuangxin Environment-Friendly Material v Commission (T-763/20) concerning the action for annulment of Commission Implementing Regulation (EU) 2020/1336 imposing definitive anti-dumping duties on imports of certain polyvinyl alcohols originating in the People’s Republic of China.

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Commission Notice providing guidance on the definition of relevant market for purposes of EU competition law, published in OJ

Thursday 22 February

Commission Notice on the definition of the relevant market for the purposes of Union competition law, the aim of which is to ensure that markets remain competitive, open, and dynamic, was officially published in the OJ.

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Council and Parliament strike provisional deal on novel rules concerning approval and market surveillance of non-road mobile machinery circulating on public roads

Thursday 22 February

The Council and the European Parliament reached a provisional deal on the regulation on the approval and market surveillance of non-road mobile machinery (NRMM) circulating on public roads, which creates harmonised road safety requirements for the circulation of self-propelled machinery (e.g. lawn mowers, harvesters or bulldozers) that needs to circulate on public roads and which, up to now, has been regulated by the Member States.

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Union law precludes Member State’s refusal to issue, to one of its nationals domiciled abroad, an identity card serving as a travel document

Thursday 22 February

On 22nd February, the Court of Justice handed down its judgment in Direcţia pentru Evidenţa Persoanelor şi Administrarea Bazelor de Date (C-491/21), a request for a preliminary reference from the High Court of Cassation and Justice in Romania concerning the right of Romanian nationals domiciled in other Member States to move and reside freely within the Union.

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Council adopts negotiating mandate on renewal of suspension of import quotas and duties from Ukraine, Moldova

Thursday 22 February

On 21st February, the Council adopted its negotiating mandate on two legislative proposals for the renewal of the suspension of import duties and quotas on Ukranian and Moldovan imports to the EU, aiming to renew the suspension of import duties and quotas until 5 June 2025, while reinforcing the protection for sensitive agricultural measures by strengthening Regulation 2023/1077.

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Right of free movement of EU citizens requires that child-raising periods in another Member State be taken into account when calculating an incapacity pension

Thursday 22 February

On 22nd February, the Court of Justice handed down its judgment in Deutsche Rentenversicherung Bund (C-283/21), a request for a preliminary reference from the Higher Social Court in North Rhine-Westphalia (Germany), a case concerning pension entitlement, in the context of a person raising his/her children in the Netherlands.

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ABC Projektai: Court of Justice interprets meaning of ‘payment service’ for the purposes of Directive 2015/2366

Thursday 22 February

On 22nd February, the Court of Justice handed down its judgment in ABC Projektai (C-661/22), a request for a preliminary ruling from the Supreme Administrative Court of Lithuania concerning the interpretation of Directive 2015/2366 on payment services in the internal market, and of Article 2 of Directive 2009/110 (the electronic money directive).

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Court of Justice: When calculating pig carcass production capacity of a slaughterhouse operating without authorisation, account must be taken of the weight of pigs after the slaughter

Thursday 22 February

The Second Chamber of the Court of Justice delivered its judgment in a case regarding the interpretation of point 6.4(a) of Annex 1 to Directive 2010/75/EU on industrial emissions (integrated pollution prevention and control): Moesgaard Meat 2012 (C-311/22).

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Court of Justice upholds appeal against judgment concerning State aid granted in the form of below-cost electricity tariffs, following an arbitration award

Thursday 22 February

The Court of Justice delivered its judgment in a case concerning an appeal, by which the appellants requested the annulment of the judgment of the General Court, in Joined Cases T-639/14 RENV, T-352/15 and T-740/17 DEI v Commission, where it annulled a Commission’s decision concerning alleged State aid granted to Alouminion SA in the form of below-cost electricity tariffs following an arbitration award, as well as a Commission’s decision concerning alleged State aid granted to Alouminion SA in the form of below-cost electricity tariffs following an arbitration award: Mytilinaios v DEI and Commission and Commission v DEI (Joined cases C-701/21 P; C-739/21 P).

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AG Pikamäe: Protection of data disproportionately affected vis-à-vis right to property by Polish measure allowing sale of database comprising personal data

Thursday 22 February

Advocate General Pikamäe delivered his Opinion in I. (Vente d’une base de données) (C-693/22), a case concerning the interpretation of Article 5(1)(a) GDPR, in conjunction with Article 6(1)(a), (c) and (e) of that regulation, as well as Article 6(3) thereof, in the context of national law permitting the sale of a database containing personal data.

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AG Campos Sánchez Bordona: Article 25 of Directive 2014/17 does not provide a specific method for calculating the reduction of the total cost of a mortgage in the case of early repayment

Thursday 22 February

On 22nd February, Advocate General Campos-Sánchez Bordona handed down his Opinion in Santander Bank Polska (C76/22), a case concerning the interpretation of Article 25(1) of Directive 2014/17/EU on credit agreements for consumers relating to residential immovable property.

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AG Campos Sánchez Bordona: Article 25 of Directive 2014/17 does not provide a specific method for calculating the reduction of the total cost of a mortgage in the case of early repayment

Thursday 22 February

On 22 February, Advocate General Campos-Sánchez Bordona handed down his Opinion in Santander Bank Polska (C76/22), a case concerning the interpretation of Article 25(1) of Directive 2014/17/EU on credit agreements for consumers relating to residential immovable property.

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Commission presents actions aiming at reducing burden for farmers in the EU

Friday 23 February

The European Commission sent a paper to the Belgian Presidency outlining first short-term and mid-term actions to help reduce the administrative burden weighing on farmers’ shoulders.

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Zalando commits to remove misleading information about environmental characteristics of its products

Friday 23 February

Following a dialogue with the Commission, Zalando committed to removing misleading sustainability flags and icons displayed next to products offered on its platform, as they can mislead consumers about the environmental characteristics of the products.

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Eurojust Vacancy: Legal Officer at Operations Department

Friday 23 February

Eurojust launched a selection procedure to establish a reserve list for the profile of Legal Officer, who will work under the supervision of the Head of Unit/Office, supporting the activity of the one of the designated organisation entity in the Operations Department.

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EU anti-money laundering authority (AMLA) will be based in Frankfurt

Friday 23 February

On 22 February, the Council and the European Parliament reached an agreement on the seat of the future EU authority for anti-money laundering and countering terrorist financing (AMLA), which will be based in Frankfurt.

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Council Regulation (EU) 2024/741 on the electronic publication of the Official Journal of the European Union published in OJ

Friday 23 February

On 23 February, the Official Journal of the EU (OJ) published Council Regulation (EU) 2024/741 amending Regulation (EU) No 216/2013 on the electronic publication of the Official Journal of the EU.

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BSH Hausgeräte: AG Emiliou clarifies interpretation of Article 24(4) of the Brussels I bis Regulation in relation to cross-border patent disputes

Friday 23 February

On 22 February, Advocate General Emiliou handed down his Opinion in BSH Hausgeräte GmbH (C-339/22), a request for a preliminary reference from the Svea Court of Appeal in Sweden concerning the interpretation of the Brussels I-bis Regulation (Regulation 1215/2012).

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EU adopts 13th package of sanctions against Russia, in the context of its war of aggression against Ukraine

Friday 23 February

The Council adopted a thirteenth package of restrictive measures against Russia, within the context of its war of aggression against Ukraine, comprising, among other things, an asset freeze and export restrictions on listed entities.

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AG Ćapeta delivers Opinion on direct effect and primacy of EU law in relation to directives protecting the rights of children in criminal proceedings

Friday 23 February

Advocate General Ćapeta handed down her Opinion in M.S. e.a. (Droits procéduraux d’une personne mineure) (C-603/22), a case concerning the interpretation of several provisions of Directive (EU) 2016/800 on the rights of children in criminal proceedings,read together with Directive 2013/48/EU on access to a lawyer, Directive 2012/13/EU on the right to information, and Directive (EU) 2016/343 on the presumption of innocence and the right to be present at the trial.

Read on EU Law Live