The Week Nº17

IN-DEPTH:

Less is more: the redundant application of Articles 6(1) and 9(1)(2) GDPR in Krankenversicherung Nordrhein (C -667/21)

Boris Belortaja

A perennial source of uncertainty”: the Court offers some further clarification of the ne bis in idem principle in case C -58/22 (Parchetul de pe lângă Curtea de Apel Craiova)

Bas van Bockel

On State aid and judicial independence after the DOBELES HES judgment (C -701/21 P and C -739/21 P Mytilinaios v DEI and Commission)

Juan Jorge Piernas López

E-Money and Payment Services. An enabler of legal certainty or abuse? (Case C 661/22, ABC Projektai)

G. Soana and E. Peggi

You shall not pass! The General Court dismisses claim for damages and action for annulment in case concerning emergency acquisition of disinfection robots during the COVID-19 pandemic (Case T-38/21)

Dag Sørlie Lund

On the inclusion of liabilities from ancillary promotional activities into the calculation of ex-ante contributions (NRW.Bank v SRB, T-466/16 RENV)

Barbora Budinská

Clarifications regarding the recovery of fraudulently obtained agricultural aid and the notion of ‘beneficiaries’

Erriketi Tla da Silva

THE LONG READ:

The Unified Patent Court is finally in action: Has a new judicial model entered the scene?

Alberto Miglio

HIGHLIGHTS OF THE WEEK

IN-DEPT H

Less is more: the redundant application of Articles 6(1) and 9(1) (2) GDPR in Krankenversicherung Nordrhein (C‑667/21)

Boris Belortaja

In Krankenversicherung Nordrhein (C‑667/21), the Court of Justice re affirmed, inter alia, that, for sensitive personal data to be lawfully processed, data controllers need to comply with the requirements set in Article 9(2) GDPR , as well as at least one of the requirements prescribed by Article 6(1) of that regulation. At first glance, the ruling seems to be business as usual: the Court affording the highest possible standard of protection to sensitive personal data, by throwing in the ‘solutions pot’ as many GDPR provisions as possible. However, inspired by the Opinion of Advocate General (AG) Campos Sánchez Bordona, this Op Ed will present the redundancy of applying the two provisions in tandem, which seems to be out of tune with the existing hierarchy between non sensitive and sensitive personal data.

Introduction

The case concerns a preliminary ruling request from the German Federal Labour Court, in the context of an action for compensation, brought by an employee of MDK, a medical service of a health insurance fund, against that employer, concerning the alleged unlawful processing of the applicant’s personal data relating to health. This Op Ed will focus on the referring court’s third question, by which it essentially asked whether, in the event that Article 9(2)(h) GDPR allowed the employer to process its employee’s personal health data, the lawfulness of the processing of such sensitive data would be dependent, additionally, on the fulfilment of at least one of the conditions set out in Article 6(1) GDPR.

Relevant legal provisions

Article 6(1) GDPR states that the processing of (any kind of) personal data shall be lawful only if compliant with at least one of the grounds laid down in the six subparagraphs of that provision. The first half of Article 9, on the other hand, appears to be a bifurcated form of Article 6(1), in that the first paragraph states, as a general rule, that the processing of special categories of personal data (sensitive data), including data concerning health, shall be prohibited, unless one of the ten subparagraphs of the second paragraph is found applicable. Article 9(2)(h), specifically, allows for the processing of special categories of data, if such ‘processing is necessary for the purposes of preventive or occupational medicine, for the assessment of the working capacity of the employee, medical diagnosis, the provision of health or social care or treatment or the management of health or social care systems and services on the basis of Union or Member State law or pursuant to contract with a health professional and subject to the conditions and safeguards referred to in paragraph 3.’

The judgment of the Court and the Opinion of AG Campos Sánchez-Bordona: a strict verdict v. a nuanced approach

The Court of Justice appeared unphased by the referring court’s question, as it gave a rather straightforward answer. In doing so, it held that the purpose of Article 9(2)(h) GDPR is to specify the scope of the data controller’s obligations, as established under Articles 5(1)(a) and 6(1) of that regulation and, therefore, the lawful processing of sensitive data concerning health must comply both with the requirements arising from Article 9(2), as well as fulfil at least one of the conditions of lawfulness set out in Article 6(1).

Advocate General Campos Sánchez Bordona, on the other hand, highlighted, in his Opinion, the rather complicated relationship between Article 9(2) and Article 6(1), stating that the question posed ‘does not really allow for a single answer to be given.’ Consequently, the AG took some sort of a balanced approach, stating that the exceptions to the prohibition on processing sensitive data, such as those set out in Article 9(2)(a), (c), (g) and (i), having a direct correlation with one of the subparagraphs of Article 6(1), are able to absorb that legal basis, consequently allowing for an independent application of Article 9(2). However, the other exceptions listed in Article 9(2), including subparagraph (h), according to the AG, would, just like the Court held, require additional justification under Article 6(1).

Finally, the AG held that, ‘at first sight, there does not seem to be an order of precedence between the legal bases contemplated in that provision,’ although, he also added that ‘a thorough analysis, which would go beyond providing an answer for the present case, might require a more nuanced approach.’

Less is more: applying Article 9(2) GDPR independently

The more thorough analysis that AG Campos Sánchez Bordona refers to seems to lead to a conclusion, which is definitely opposite of that of the Court, and less nuanced than that of the AG. Accordingly, while Article 9(2) would, in any case, be governed by the more general principles enshrined in Articles 5 and 6(1), it would require independent standing and application, appreciative of the hierarchy between non sensitive and sensitive personal data.

Article 9(1) states that the ‘processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation shall be prohibited.’ As confirmed by the Court of Justice in Meta Platforms and Others (Conditions générales d’utilisation d’un réseau social) (C 252/21), that provision lays down a fundamental prohibition on the processing of sensitive personal data. The fundamental nature of such a prohibition, which is not explicitly found in Article 6(1), would point in the direction of an existing hierarchy between personal data and sensitive personal data, the latter demanding, as a consequence, a higher standard of protection. Accordingly, it would be constitutionally counterintuitive to suggest that requirements of a more general nature, such as those contained in Article 6(1), which do not operate under that stricter, fundamental prohibition, should be applied

to legitimise the processing of sensitive personal data, as well. In this sense, what Campos Sánchez Bordona suggested, contrary to what the Court followed, holds true, as far as Article 9(2)(a), (c), (g), and (i) are concerned. Indeed, it would be impossible, for instance, for the processing of sensitive personal data to be unlawful, within the meaning of Article 6(1)(a), which requires the data subject to have consented to such processing, if the data subject has given explicit consent to the processing of those personal data, as required by Article 9(2)(a), and has thus complied with the latter provision.

However, disagreeing, in part, with the AG’s Opinion, and in accordance with the above line of reasoning, it appears that the same should hold true to all other subparagraphs of Article 9(2), particularly, subparagraph (h), which was subject to the Court’s interpretation in the case at hand. This is because, first, just like there is a correlation between Article 6(1)(a) and Article 9(2)(a), Article 9(2)(h) can be deemed a more specific version of Article 6(1)(b) and (f), which allow the processing of personal data if it is necessary for the performance of a contract to which the data subject is party, or if it is necessary for the purposes of the legitimate interests pursued by the controller. Second, and why subparagraph (h) deserves, particularly, an independent standing is due to the fact that it benefits from an additional layer of protection, enshrined in Article 9(3), which allows the data controller to process sensitive data, under the obligation of professional secrecy. Accordingly, the chances that Article 6(1) offers any effective protection to sensitive data are practically non existent.

Moreover, from a strictly positivist perspective, while other GDPR provisions (Article 8 and 10), which protect other specific categories of personal data, such as the personal data of children and personal data relating to criminal convictions and offences, make explicit reference to Article 6(1), Article 9 fails to do so. This would suggest that such an explicit reference was willingly omitted by the Union’s legislator. Indeed, as AG Campos Sánchez Bordona also pointed out, Article 9 did initially contain a reference to Article 6, when the text of the GDPR was being negotiated, however, such a reference did not make it through to the final version of the text. Therefore, this could not possibly be an argument in favour of simultaneously applying the two provisions, as argued by the AG, since it would raise eyebrows in relation to respecting the will of the co legislators.

Lastly, the above elaborated view seems to have also been condoned by the EU Agency for Fundamental Rights, in its 2018 Handbook on European Data Protection Law (see Chapter 4.1.1. on the lawful grounds of processing data).

In conclusion, an independent application of Article 9 GDPR would be harmonious with the existing hierarchy between non sensitive and sensitive data, without jeopardising the proportionate protection of neither, all while providing for a clearer and less superfluous interpretative model for national courts.

Boris Belortaja is an Assistant Editor and Legal Reporter at EU Law Live.

SUGGESTED CITATION: Belortaja, B.; “Less is more: the redundant application of Articles 6(1) and 9(1)(2) GDPR in Krankenversicherung Nordrhein (C‑667/21)”, EU Law Live, 13/03/2024, https://eulawlive.com/op ed less is more the redundant application of articles 61 and 912 gdpr in krankenversicherung nordrhein c%e2%80%91667 21 by boris belortaja/

A perennial source of uncertainty”: the Court offers some further clarification of the ne bis in idem principle in case C‑58/22 (Parchetul de pe lângă Curtea de Apel Craiova)

Bas van Bockel

Background

The case C‑58/22 (Parchetul de pe lângă Curtea de Apel Craiova) concerns a cooperative company, whose employees are also members. By decision of the general meeting of members of that company, several employees –the complainants in the national proceedings– removed the president of that company, NR, from her position. NR successfully brought an action annulling this decision, and she was reinstated in her position as president. She paid a substantial legal fee, and demanded that the complainants who had removed her from her position pay for the cost of her legal representation. When they failed to comply, their employment contracts were terminated by NR. The complainants thereupon lodged two separate, identical sets of complaints with the police and the so called ‘National Anti Corruption Directorate’ (hereafter: the ‘directorate’) for the offences of extortion, abuse of office and passive corruption. These complaints were registered with two different public prosecutors’ offices (Olt and Slatina). In the proceedings concerning the second complaint, the public prosecutor at Slatina opened investigative criminal proceedings ‘in rem’ (against the legal entity) for the offence of extortion. An in depth investigation was carried out, but the police officers in charge of that investigation concluded that the facts could not be considered as ‘extortion’ because the sum demanded by NR from the employees was not for her own benefit, but covered the cost of legal representation. An order for dismissal was issued by the public prosecutor on the basis of these findings, which was not challenged by the complainants within the applicable time limit, and became final. The chief prosecutor at Slatina however then moved to reopen the investigative proceedings in order for them to be joined with the ongoing investigation of the first complaint, which was handled by the public prosecutor’s office at Olt. In order to effectuate this, the case was brought before a court, but this court rejected the application on the grounds that ‘the same person was subject to investigation (…) before a different judicial body’.

In the criminal proceedings that followed the investigations of the first complaint, in which the accused was prosecuted for the offence of passive corruption, she relied on the ne bis in idem principle, arguing that the same facts had already been investigated in the context of the offence of extortion, and that a final decision to take no further action had previously been issued. This plea was rejected by the Romanian court inter alia on grounds that the criminal complaints had been made on different dates, and that the proceedings relating to the offence of extortion were carried out in rem, whereas the proceedings concerning the offence of passive corruption were directed against the accused (in personam). The Romanian court also ruled that no detailed investigation was carried out in the proceedings relating to the offence of extortion because insufficient evidence had been obtained,

and because the investigation had been carried out by a police officer. The Romanian court thereupon sentenced NR to (inter alia) one year and four months’ imprisonment. This sentence was set aside in appeal on grounds of ne bis in idem, and several sets of proceedings followed before various courts.

In the proceedings before it, the Court of Justice held that the fact that the relevant provisions of Romanian law ensure the transposition of Framework Decision 2003/568 on corruption in the private sector is sufficient in order for the Charter to apply in the present case, in spite of the internal nature of the facts of the case. Turning to the questions referred, the Court reiterates that ‘the principle ne bis in idem prohibits a duplication both of proceedings and of penalties of a criminal nature, (…) for the same acts and against the same person’. In order for the principle to apply (‘bis’), the first requirement is that the decision must be final, meaning that ‘further prosecution has been definitively barred in accordance with national law’, regardless of whether it concerns a judicial decision or a decision by the prosecution. The Court concludes in a straight forward manner that it ‘appears that further public prosecution was definitively barred’. The second requirement is that the decision finally disposing of the first set of proceedings must be based on an assessment of the merits of the case, and not merely on procedural grounds. In this regard, the court cites some of the main factors that the European Court of Human Rights developed in its case law: whether victim has been interviewed, whether the evidence has been gathered and examined by the competent authority, and whether a reasoned decision has been given on the basis of that evidence. The Court recalls that an acquittal for lack of evidence must be considered as a decision involving a substantive determination of the facts of the case, regardless of whether this decision was taken by a judicial body or another competent authority. A failure to interview the victim of the accused however provides an indication that no such detailed examination took place. It was left to the referring court ‘to satisfy itself that the order that no further action be taken in the case was preceded by an assessment as to the merits of case’.

As for the question whether the two proceedings concerned the same facts (‘idem’), the Court summarised its own case law on Art. 50 of the Charter as prohibiting ‘the imposition, with respect to identical facts, of several criminal penalties as a result of different proceedings’, regardless of ‘the legal classification under national law of the facts and the legal interest protected’. The fact that one investigation focused on ‘extortion’ and the other on ‘passive corruption’ is therefore irrelevant. The fact that one investigation was conducted against the legal entity (in rem) and the other against NR in personam however ‘cannot be regarded as irrelevant’. In that connection, the Court remarks that NR was not heard as a suspect but as a witness in the proceedings in rem. The Court rules that ‘a person cannot be regarded as having been “finally acquitted or convicted” unless it is clear from the decision adopted that, during the investigation that preceded that decision, irrespective of whether that investigation was brought in rem or in personam on the basis of national law, his or her legal situation as criminally liable for the acts constituting the offence being prosecuted has been examined’.

The judgment raises interest, because it offers a clarification of the scope of the ne bis in idem principle on an important point: that of the question who can rely on its’ protection (the subjective scope of application). The Court confirms that the criminal liability of the legal entity is, in principle, distinct from that of its executives and/or employees, even though the offence may involve the same factual actions by the same individuals. I have

argued elsewhere that if the legislator opts to introduce the possibility of criminal liability of legal entities in addition to criminal liability of executives and/or employees, it follows logically that this liability will be distinct from the criminal liability of those executives or employees for the application of the ne bis in idem principle (see here, p. 43). Under any other approach, criminal liability for an offence would simply shift from the legal entity to its executives or vice versa, precisely as a result of the application of the ne bis in idem principle. Another –perhaps theoretical– possibility would be to opt for criminal liability of legal entities exclusively as an alternative to criminal liability of executives and/or employees. Under this scenario, the relevant legislation would present prosecutors with a clear choice to either prosecute the legal entity, or its executives and/or employees, but not both. I am however not aware of any legal system which expressly provides for such an ‘either/or’ rule.

The (partial) exception to the rule that an executive and/or employee cannot rely on the ne bis in idem protection enjoyed by the legal entity and vice versa (or so it must be assumed) is when the ‘legal situation’ of an executive or employee ‘as criminally liable for the acts constituting the offence being prosecuted has been examined’ in the investigation concerning the criminal liability of the legal entity. (Again, the same would logically apply vice versa). This makes sense, because under those circumstances the executive or employee was investigated in the course of the investigation of the legal entity. He or she was, in other words, prosecuted, as part of the prosecution of the legal entity, and was at risk of being tried and convicted. This is only a partial ‘exception’ to the rule that criminal liability of the legal entity and its executives or employees are distinct because the investigation of the criminal liability of the executive or employee would still have to end with a final decision in order to have ne bis in idem effect.

Another reason why the judgment raises interest are the ‘final remarks’ by the Advocate General:

‘The number of judgments given by both the Court of Justice and the ECtHR in the last few years suggests that the scope of the principle ne bis in idem is a perennial source of uncertainty. A variety of issues has arisen, in a multitude of cases, which led those courts to, depending on the circumstances, fine tune, clarify but also, at times, significantly develop their case law.’

It has been a bumpy ride indeed. Ne bis in idem is a controversial human right, as is its sibling the double jeopardy rule in the US and in common law countries (the UK, Australia, Canada, and New Zealand). There have been many developments in the case law of both the Luxembourg and Strasburg courts on the ne bis in idem principle in recent years which have been complex, controversial, and contested in literature and in dissenting opinions. In addition, there are also still many important points that must be clarified, as also evidenced by the present judgment. To be continued!

Bas van Bockel is Research Fellow at the Catholic University of Leuven.

SUGGESTED CITATION: Van Bockel, B.; “A perennial source of uncertainty”: the Court offers some further clarification of the ne bis in idem principle in case C‑58/22 (Parchetul de pe lângă Curtea de Apel Craiova)”, EU Law Live, 12/03/2024, https://eulawlive.com/op ed a perennial source of uncertainty the court offers some further clarification of the ne bis in idem principle in case c%e2%80%9158 22 parchetul de pe langa curtea de apel cr/

On

State aid and judicial independence after the

DOBELES

HES judgment (C‑701/21 P and C‑739/21 P Mytilinaios v DEI and Commission)

Juan Jorge Piernas López

On February 22th 2024, the Court of Justice delivered its judgment in joined Cases C‑701/21 P and C‑739/21 P Mytilinaios v DEI and Commission. The judgment was concerned with two appeals brought by Mytilinaios AE – Omilos Epicheiriseon (‘Mytilinaios’) and the European Commission against a judgment of the General Court (Third Chamber, Extended Composition), delivered on 22 September 2021, which annulled a Commission letter and two Commission decisions related to alleged State aid granted in the form of electricity tariffs below cost following an arbitration decision. The judgment annulled the General Court’s decision. It also sent the case back to the General Court to assess some pleas for which the Court of Justice did not have the necessary information. The judgment clarifies the conditions under which an arbitration award may be attributed to the State and sheds light on the scope and impact of the DOBELES HES case law.

The main question before the European Courts was whether an electricity supply tariff which an electricity producer and supplier controlled by the Greek State (Dimosia Epicheirisi Ilektrismou AE (DEI)) must charge under an arbitration award to its largest customer, the aluminium producer Mytilinaios, involved the grant of State aid.

Following a complaint lodged by DEI in 2013, the Commission rejected the categorisation of the arbitration award as State aid concluding, in essence, that the award at issue was not imputable to the Greek State, and that there was no advantage granted to the undertaking as the terms of the arbitration agreement concluded by DEI and Mytilinaios were in line with the market economy operator test.

In the judgment under appeal, the General Court found that the Commission should have examined the content of the arbitration award as, under the case law of the Court of Justice, national courts are liable to confer an advantage to a party to a dispute which constitute State aid. The General Court found that the activities of the permanent arbitration tribunal in the case at hand could be equated to those of the ordinary courts in Greece, concluding in particular that the final arbitration award constituted an act of public authority attributable to the Greek State. For these purposes, the General Court noted that the arbitration tribunal at stake performed a judicial function which was identical to that of the ordinary courts, even replacing those courts, that the arbitrators were selected from a list drawn up by decision of the President of the arbitration tribunal and had to demonstrate their independence and impartiality before their appointment, that proceedings before arbitration tribunals were governed, inter alia, by the provisions of the Greek Code of Civil Procedure, and that the decisions of the arbitration tribunal were legally binding, had the force of res judicata and were enforceable in accordance with the

relevant provisions of that code. Finally, the General Court noted that the decisions of the arbitration tribunal might be the subject of an appeal brought before an ordinary court.

Concerning the possible existence of an advantage, the General Court held that the Commission should have carried out complex economic and technical assessments before discarding the presence of serious doubts as to the absence of State aid at the preliminary examination stage. Consequently, the General Court annulled the contested Commission’s letter and decisions.

The judgment of the Court of Justice mainly focuses on whether the arbitration award in the case at hand was a State measure capable of constituting State aid under Article 107(1) TFEU, a premiss of the General Court’s judgment. To this extent, DEI had argued, with reference to the 2022 Commission v European Food and Others (‘Micula’) case of the Court, that awards by arbitration tribunals may be attributed to the State and constitute measures whereby State aid can be granted.

The Court, in agreement on this point with its Advocate General, rejected that the arbitration tribunal in question could be treated as similar to an ordinary State court and that its decisions could be attributed to the Greek State. To this extent, the Court found that none of the criteria followed by the General Court in the judgment under appeal made it possible to distinguish the arbitration tribunal of this case from any other arbitration tribunal appointed by contract. Consequently, the Court held that the General Court had erred in law in finding that the arbitration tribunal in the case at hand could be treated in the same way as an ordinary court and that the arbitration award was a State measure capable of constituting State aid (para. 106).

Concerning DEI’s argument related to the Micula judgment of the Court, which was rendered after the judgment under appeal, the Court underlined three elements that distinguished the case at hand from the Micula judgment, namely (i) that in the latter case the arbitration tribunal had been established on the basis of a bilateral investment treaty; (ii) that in that latter case the Court had not concluded that an arbitration award, in itself, constituted State aid [although it held that the arbitral award conferred the right of compensation to the alleged beneficiaries and quantified the amount thereof ]; and (iii) that the fact that in the case under review an action for annulment of the arbitration award had been dismissed by a Greek court could not mean that that award might, on that ground alone, be attributable to the Greek State.

In relation to this last point, the Court added, with reference to the DOBELES HES judgment, that ‘it follows from the case law of the Court that the establishment as such of State aid cannot result from a judicial decision, since such an establishment of State aid entails a decision as to the appropriate course of action which falls outside the scope of a court’s powers and obligations […] Consequently, the existence of such a judicial decision cannot, in any event, suffice to classify the arbitration award, as confirmed by that decision, as a measure capable of constituting State aid’ (para. 111).

The reference to the DOBELES HES judgment is particularly relevant as that Court’s decision was rendered after the judgment of the General Court. It is also relevant as the Court seemingly deviated from the Opinion of

Advocate General Szpunar, who had concluded that the even after the DOBELES HES judgment, an advantage might be granted by a court decision (point 90 of the Advocate General’s Opinion).

In relation to the foregoing, Dimitrios Kyriazis rightly observed in his commentary to the DOBELES HES case that the Court seemingly departed in that decision from its previous case law –notably the DEI judgment to which the General Court had referred (para.147 of the General Court’s decision) but also decisions of the General Court– and made clear that national court decisions may not, per se, grant State aid. In the case under review, the Court also clarified that an arbitration award may not constitute an aid measure attributable to a Member State whose national courts confirmed the award in question.

Finally, what is less clear after DOBELES HES and the judgment under review is the rationale for the Court’s findings, namely why the Court is differentiating national courts from other national authorities for the purposes of EU State aid Law. In my opinion, Advocate General Szpunar was right in noting that the Court’s reasoning in DOBELES ‘reflects the traditional approach to the separation of powers, which limits the role of the courts to the application of pre existing rules of law’ (para. 88).

However, it is submitted that the foundation of the evolution in the Court’s case law might be more profound and linked to the more general evolution in EU Law towards the recognition of judicial independence as a core component of the Rule of Law.

In this regard, Advocate General Hogan observed in his Opinion in the Banco Santander case, a State aid case (although better known for the reversal of the Court’s case law concerning Spanish Tribunales Económico Administrativos as ‘jurisdictions’ under Article 267 TFEU) an evolution of EU Law which had an impact on the conditions of Article 267 TFEU, as Daniel Sarmiento anticipated (see also the commentary of Ricardo García in this regard). In particular the former Advocate General noted that, in line ‘perhaps’ with Article 2 TEU, Article 19(2)TEU and Article 47 of the Charter, the Court had developed and ‘impressive line of case law addressing the requirements of judicial independence’ summarizsd in the Associação Sindical dos Juízes Portugueses. This evolution, it is submitted, may also help to explain why the Court of Justice is restricting the traditionally broad and effects based notion of ‘State resources’ under Article 107(1) TFEU, by considering that national court decisions, may not, per se, constitute State aid measures attributable to the State of which the national jurisdictions form part.

Juan Jorge Piernas López is a Senior Lecturer and Jean Monnet Chair, University of Murcia Law School, Spain; Consultant to The World Bank, Washington DC, USA, and other public institutions

SUGGESTED CITATION: Piernas López, J.; “On State aid and judicial independence after the DOBELES HES judgment (C‑701/21 P and C‑739/21 P Mytilinaios v DEI and Commission)”, EU Law Live, 11/03/2024, https://eulawlive.com/op ed on state aid and judicial independence after the dobeles hes judgment c%e2%80%91701 21 p and c%e2%80%91739 21 p mytilinaios v dei and commission by juan jorge

piernas lopez/

E Money and Payment Services. An enabler of legal certainty or abuse? (Case

C

661/22, ABC Projektai)

G. Soana and E. Peggi

1. The Facts of the Case

In ABC Projektai, Case C‑661/22, the Court of Justice rules on a topic that has caused disagreement and opposing views among National Supervisors and Courts alike: the distinction between E Money Service Providers and Payment Institutions. Key to the case at hand is whether ‘the activity of a payment institution which consists in receiving funds from a user of a payment service, where such funds are not immediately accompanied by a payment order and therefore remain available on a payment account’ constitutes a de facto issuance of e money by such a payment institution.

This was the position taken by the Lithuanian Central Bank, who, on such grounds, had revoked the licence to ABC Projektai. The Supervisor argued that, by engaging in the aforementioned activity, ABC Projektai had gone beyond the scope of its license by providing e money services without complying with the requirements laid down by the E Money Directive (2009/110). Hence, it revoked the company’s license as a Payment Institution.

ABC Projektai challenged the decisions before the Regional Administrative Court, contesting such an interpretation of e money issuance. Its claims were, however, dismissed by the First Instance Court. The company appealed the decision before the Supreme Administrative Court of Lithuania who referred the matter to the Court of Justice.

The Court sided with ABC Projektai stating that the activity of receiving funds in the absence of a payment order ‘constitutes a payment service provided by that payment institution, within the meaning of Article 4(3) of Directive 2015/2366, and not a transaction consisting in the issuance of electronic money, within the meaning of Article 2(2) of Directive 2009/110’.

Such a decision can be seen as a positive development as it clarifies a key contentious point in the interpretation of the E Money Directive and Payment Service Directive (2015/2366). However, it also may pave the way for abusive practices by Payment Institutions which may offer e money like services while avoiding the connected heftier compliance requirements.

2. Between Payment Service and E-Money. A fine line

The ruling assumes fundamental importance as it draws a line of demarcation between the notion of payment service pursuant to the Payment Service Directive (2015/2366) and the issuance of electronic money pursuant to the E Money Directive. It places a firm point between the various interpretations adopted by national supervisory

authorities in recent years regarding the possibility for Payment Institutions to receive and retain customer funds for an extended period of time.

The Court states that, in order for the transmission of funds to an account to qualify as issuance of electronic money, it is necessary that: a) the funds received are stored electronically and therefore formally converted into a monetary asset separate from them which must be accepted as a means of payment from third parties; b) the client and the payment account operator must have expressly agreed that the operator will issue a separate asset up to the value of the transferred funds. It follows that, based on the ruling of the Court, the requalification of a transaction as issuance of electronic money depends on the existence of an express contractual agreement between the parties regarding the acceptance of it as a means of payment, pursuant to Article 2(2), of the E Money Directive. Therefore, in the absence of such an agreement, it is in no way possible to requalify the transaction as an issuance of electronic money, even in presence of possible violations of the rules of the Payment Service Directive on the execution times of payment orders.

In this sense, the reception of funds from the customer without a simultaneous payment order and the retention of these for an extended period of time therefore represents a necessary, but not sufficient, condition to requalify the operation as issuance of electronic money. The Court’s ruling therefore engineers a test consisting of two steps to verify the possibility of requalifying the reception of funds by a payment institution as electronic money issuance. The first step assesses the objective circumstance of the detention of such funds for an extended period of time in the absence of a payment order. The second step is aimed at scrutinizing the existence of a contractual agreement through which the user accepts the issuance of a separate monetary asset based on the transferred funds.

The Court’s ruling, while certainly contributing to clarifying the divergent interpretations taken in recent years by the national competent authorities, creates a risk of distortion to competition in the payment services market. Eminently, the risk is that payment institutions will structure products similar to e wallets, without, however, the need to comply with the onerous own funds’ requirements that the E Money Directive imposes on electronic money institutions. Historically, the possibility for electronic money institutions to hold customers’ funds while awaiting their decision to issue a payment order has represented the distinctive element for such operators compared to payment institutions. The Court’s ruling, however, also opens up this possibility to the latter, noting that the time limit for the execution of a payment order provided for by the Article 83 of the Payment Service Directive does not exclude funds from being credited in advance to a payment account with a view to the execution of future payment orders.

The ruling then raises the question concerning the possibility of qualifying the retention of funds without a payment order as deposit taking, an activity reserved for credit institutions. This being the position taken by the UK Financial Conduct Authority (FCA) in the recent Premier FX case.

3. Closing remarks. A call for hard law

To conclude, if on the one hand the Court’s ruling sheds light on a topic marked by a wide diversity of views among national regulators in recent years, on the other hand, it lays the basis for possible abuses by payment institutions and might pave the way for the circumvention of e money rules, allowing them to provide services similar to those provided by electronic money institutions, but subject to lower regulatory burdens. It would therefore be desirable for the issues raised by this ruling to be addressed by the European co legislators in the context of the ongoing revision of the Payment Service Directive. From this point of view, the Commission’s proposal to incorporate the E money Directive within the future Payment Service Directive or PSD3 (COMM/2023/366) is to be welcomed. It is precisely within the context of a harmonised review of the regulatory framework applicable to payment institutions and electronic money institutions that the issues raised by the Court’s ruling can be addressed.

Giulio Soana is a Ph.D. researcher at LUISS Guido Carli and KU Leuven. He specializes in financial crime regulation with a focus on fintech. Giulio is currently working as Senior Consultant in legal and compliance at Reply Avantage.

Emanuele Peggi is a Ph.D. researcher at LUISS Guido Carli specializing in Financial regulation.

SUGGESTED CITATION: Soana, G and Peggi, E..; “E Money and Payment Services. An enabler of legal certainty or abuse? (Case C 661/22, ABC Projektai)”, EU Law Live, 14/03/2024, https://eulawlive.com/op ed e money and payment services an enabler of legal certainty or abuse case c 661 22 abc projektai by g soana and e peggi/

You shall not pass! The General Court dismisses claim for damages and action for annulment in case concerning emergency acquisition of disinfection robots during the COVID 19 pandemic (Case T 38/21)

Dag Sørlie Lund

On February 21, the General Court, sitting in the Extended Composition Formation of five judges, delivered its judgment in Case T 38/21 Inivos and Inivos v Commission. The case concerns the Commission’s acquisition, in the autumn of 2020, of 200 disinfection robots to assist hospitals in the Member States during the COVID 19 pandemic, using a dedicated budget from an emergency support instrument.

Due to the perceived urgency arising from the COVID 19 crisis, the Commission decided to procure the robots using a negotiated procedure without prior publication of a contract notice, thus dispensing from the ordinary procurement procedure laid down in Annex I of the Financial Regulation (2018/1046). This extraordinary procedure is described as follows by procurement law expert and associate professor at Copenhagen Business School, Pedro Telles:

‘Since the whole procedure is carried out privately until the contract award information is published, there is no transparency in the sense of a contract opportunity and its rules being made public in advance. There are no guarantees of equal treatment between participants or potential participants. As for competition, since the contract can be awarded directly to an economic operator, competition is also not observed.’

Telles thus aptly calls this procedure the ‘antithesis’ of the ordinary public procurement procedure (Pedro Telles, Extremely urgent public procurement under Directive 2014/24/EU and the COVID 19 pandemic, Maastricht Journal of European and Comparative Law, 2022, Vol. 29(2), 215 228, at 218).

The applicants, Inivos Ltd and Inivos BV, (simply referred to as ‘Inivos’ in the following) are companies established in the UK and the Netherlands respectively, who are ‘active in the field of specialised medical technology in the prevention and control of infections’ (para. 2). However, the applicants were not invited to submit tenders to the Commission, even though they produce a portable disinfection robot ‘Ultra V’, ‘an intelligent disinfection robot that uses UVC light ray technology for consistently effective decontamination’ (para. 48).

Due to the Commission’s decision to dispense with the ordinary procurement procedure, no contract notice nor any information about the award of the contract had been published. The applicants only became aware of the Commission’s intention to purchase the robots through a press release. Inivos immediately requested that the

public procurement procedure be relaunched, following a call for tenders with a prior publication of a contract notice, but to no avail, as the framework contract had already been concluded by then.

Two actions were then lodged at the Luxembourg Courts: The first asked for the annulment of the Commission’s decision to open a negotiated procedure without prior publication of a contract notice, and the decision to conclude the framework contracts. The second action asked for interim relief suspending the operation of the framework contracts.

With respect to the latter action, Inivos’ application was rejected by Order of the President of the General Court (Case T 38/21 R), which was subsequently upheld upon appeal by the Vice President of the Court of Justice (Case C 471/21 P(R)).

The latest ruling was thus the third time Inivios invited the Luxembourg courts to consider the Commission’s acquisition of the disinfection robots. The third time was not the charm, however. Inivos lost on all counts, providing a good illustration of just how difficult it is to succeed in such actions against the Commission, trying to hold it accountable for alleged unlawful conduct:

First, the General Court held that since the decision to use a negotiated procedure without prior publication of a contract notice was preparatory in nature and did not definitively affect the applicants’ interests, it was found not to constitute a challengeable act. Inivos’ annulment action was thus deemed inadmissible.

Second, although the later decision to award the contract was considered challengeable since Inivos was active on the relevant market, the General Court held that it was not of individual concern to them since they had not produced sufficient evidence to demonstrate their ability to fulfill the Commission’s selection criteria, particularly regarding production capacity. Consequently, this action too was deemed inadmissible.

Third, the decision to conclude the framework contract was considered to produce legal effects solely within the contractual relationship between the Commission and the successful tenderers. Once again Inivos’ action was found to be inadmissible.

Finally, the claim for damages was dismissed due to the fact that the applicants were unable to demonstrate that there would be ‘no doubt’ that Inivos would have been awarded the contract if they had been invited to participate in the negotiated procedure (para 100). Notably, the General Court pointed out that the applicants had not ‘adduced any evidence to substantiate their assertion […] that they were able to fulfill’ the selection criteria of ensuring supply to the selected hospitals within four weeks of the order, including subsequent training of the hospital staff, support and maintenance, and response time in providing such support and maintenance (para 99).

The Commission’s decision to use the negotiated procedure without prior publication of a contract notice is controversial, and the fact that the Luxembourg courts still, after two orders and one judgment, has not ruled on the legality of that procedure, is particularly unsatisfactory. The Commission’s decision in that regard, is a reflection

of the view presented in its Guidance on using the public procurement framework in the emergency situation related to the COVID 19 crisis (2020/C 108 I/01), which has a carte blanche approach, essentially ‘arguing that reacting to the pandemic could not be planned in advance and that it constitutes an unforeseen event’ as explained by Pedro Telles, at 225). Telles convincingly lays out why such an approach is likely incorrect and unlawful.

If the Commission’s general approach to what the COVID 19 pandemic could justify in this context is dubious, this is all the more so with respect to the procurement of the disinfection robots. Could the COVID 19 pandemic really justify the dispensing of the ordinary public procurement procedures nearly one year into the crisis simply because the number of robots was considered insufficient? The conditions for using this exceptional procedure are very strict, placing the burden of proof firmly on the contracting authority.

The General Court’s judgment effectively means that decisions to use the negotiated procedure without prior publication of a contract notice are excluded from judicial review. This in turn makes the task of holding the Commission and other EU institutions accountable for circumventing the ordinary procurement procedures virtually impossible.

The prospects of getting compensation for any damages suffered as a result, is also out of the question for all practical purposes: Here all Inivos could have hoped for was compensation for a loss of an opportunity to tender for the disputed contract. As explained above, this requires that there would have been ‘no doubt’ that Inivos would have been awarded the contract if they had been invited to participate in the negotiated procedure without prior publication of a contract notice. Considering the wide discretion involved in the award of contracts under this extraordinary procedure, it is hard to imagine how an applicant may fulfill this requirement.

With respect to this conclusion, one may wonder if the General Court really answered the right question: in para. 93 it states that ‘a loss of an opportunity to secure a contract constitutes real and certain loss only if, in the absence of the improper conduct by the institution, there would be no doubt that the applicant would have been awarded that contract’. (italics added)

Inivos’ claim was, however, based on the Commission’s unlawful use of the negotiated procedure without prior publication of a contract notice (para. 86), and not the fact that they were not invited to participate in that negotiated procedure. Here too, then, the General Court seems unwilling to review the Commission’s decision to use this extraordinary procedure, and answers a different question altogether.

The ruling is therefore unsatisfactory on many levels, and a blow to the rule of law. The restraints imposed by the public procurement rules are intended to ensure fair play when EU institutions and other public contracting authorities deal with private operators. Extraordinary events such as the COVID 19 pandemic certainly warranted exemptions from the rules that apply under normal circumstances. However, it is precisely in those situations the rule of law is tested: One cannot allow blanket exemptions without proper justification, and checks and balances on those who decides to make use of these exemptions. It is thus of vital importance to the integrity of the EU

system as such that the decisions to depart from the normal rules are not excluded form judicial review but is thoroughly scrutinised by independent courts. Only an appeal can set this right.

Dag Sørlie Lund is a judge at the National Insurance Court of Norway. He is a contributor to Graham Butler (ed.): Research handbook on EEA Internal Market Law, Edward Elgar Publishing, 2024 (forthcoming).

SUGGESTED CITATION: Sørlie Lund, D.; “Where Investment Screening and the Internal Market Meet – Xella Magyarország (C 106/22)”, EU Law Live, 13/03/2024, https://eulawlive.com/op ed you shall not pass the general court dismisses claim for damages and action for annulment in case concerning emergency acquisition of disinfection robots during the covid 19 pandemic/

On the inclusion of liabilities from ancillary promotional activities into the calculation of ex ante contributions (NRW.Bank v SRB, T 466/16 RENV)

Barbora Budinská

I. Introduction

On 21 February, the General Court delivered a judgment in the case of NRW.Bank v SRB ( T 466/16 RENV ), dismissing NRW.Bank’s action for annulment of a decision of the Single Resolution Board (‘SRB’) on the 2016 ex-ante contributions to the Single Resolution Fund (‘contributions’, ‘SRF’). NRW.Bank raised a total of eleven pleas in law, including pleas of illegality in relation to Article 5(1)(f) of Commission Delegated Regulation 2015/63 (‘Regulation 2015/63’) and pleas in law relating to the legality of the SRB’s decision. This analysis seeks to highlight the (arguably) most relevant aspects of the case.

II. The background to the dispute

NRW.Bank is the development bank of the state of North Rhine Westphalia. It conducts promotional activities and ancillary promotional activities. The promotional activities include the granting of loans on favourable terms to promote, among other things, SMEs, urban and municipal development, and environmental and climate protection.

As part of its ancillary promotional activities, NRW.Bank may engage in treasury management and risk management transactions, raise subordinated liable capital, issue profit participation rights, public sector Pfandbriefe and other bonds, and buy and sell receivables. In particular, it raises funds on the capital markets and invests them in bonds on a long term basis.

At the heart of this case was the question of whether liabilities relating to NRW.Bank’s ancillary promotional activities should be excluded from the calculation of its contribution to the SRF for 2016. The purpose of the SRF is to finance the resolution of banks within the Banking Union, and these contributions are the main source of its funding (for a brief description, see also here).

The present judgment is the second judgment of the General Court in this case. In its first judgment in 2019, the General Court dismissed NRW.Bank’s action as inadmissible (NRW.Bank v SRB, T 466/16). NRW.Bank appealed to the Court of Justice, which annulled the 2019 ruling and referred the case back to the General Court (NRW.Bank v SRB, C 662/19 P; for an analysis, see here).

The contested act in the present case is the SRB’s 2022 decision, which repealed and replaced the original 2016 decision determining the amount of the contributions of all relevant entities for year 2016, including NRW. Bank, and the corrected 2016 decision adjusting the amount of the contributions. The SRB adopted the contested decision to remedy its failure to state reasons following the judgments of the General Court in Hypo Vorarlberg Bank ( T 377/16, T 645/16 and T 809/16) and Portigon ( T 365/16) (see also SRB Annual Report 2022, pp. 44 45).

III. The General Court’s judgment

1. On the interpretation and legality of Article 5(1)(f) Regulation 2015/63

Regulation 2015/63 lays down, inter alia, rules specifying the methodology for calculating ex-ante contributions, including the methodology for adjusting the risk profile of institutions. According to Article 5(1)(f), contributions shall be calculated by excluding the liabilities ‘in case of institutions operating promotional loans … in so far as the amount of these liabilities is matched by the promotional loans of that institution.’ A promotional loan is defined in Article 3(28) Regulation 2015/63 as ‘a loan granted by a promotional bank or through an intermediate bank on a non competitive, non for profit basis, in order to promote the public policy objectives of central or regional governments in a Member State.’

NRW.Bank argued that Article 5(1)(f) should be interpreted as excluding liabilities arising from ancillary promotional activities from the calculation of contributions. The General Court disagreed. It reasoned that the relevant ancillary promotional activities include, inter alia, the purchase of bonds on the capital markets. On these markets, other institutions carry out the same transactions under the same conditions as development banks such as NRW.Bank. The latter is therefore in direct competition with other market participants. Moreover, the purchase of bonds on the capital markets is intended to (and does) generate income to finance other banking activities. Therefore, the relevant ancillary promotional activities cannot be regarded as activities carried out on a non competitive, non profit basis, regardless of the fact that their ultimate objective is to finance NRW.Bank’s promotional activities.

NRW.Bank also questioned the legality of Article 5(1)(f) in the light of the fact that contributions must be calculated on the basis of the risk profile of the institutions and the principle of equal treatment. The General Court recalled that, as a general rule, all liabilities of institutions (excluding own funds and covered deposits) must be taken into account when calculating contributions, provided that the contributions are adjusted according to the risk profile of the institutions. A provision of the applicable legal framework providing for an exception or derogation from that rule must be interpreted strictly. This corresponds to the ‘insurance based logic’ according to which ex-ante contributions ensure that ‘the financial sector provides adequate financial resources for the [SRM] to be able to fulfil its functions, while encouraging the adoption, by the institutions concerned, of less risky methods of operation’ (Commission v Landesbank Baden-Württemberg and SRB, C 584/20 P and C 621/20 P, para. 113).

While the likelihood of resolution and risk exposure are aspects to be taken into account, they are only two of the eight elements that the Commission must take into account under Article 103(7) of Directive 2014/59 when it adopts delegated acts such as Regulation 2015/63. In particular, the Commission does not have the power to exempt certain institutions entirely from the obligation to pay contributions by means of a delegated act. Moreover, it is not obliged to exclude all liabilities of regional development banks from the calculation of contributions simply because such banks are less likely to be resolved due to guarantees provided by their (regional) government. The General Court added that while it is true that promotional and ancillary promotional activities are complementary, they are not comparable and do not necessarily benefit from the same State support. Therefore, they do not need to be treated in the same way.

2. On the lawfulness of the contested decision

The General Court rejected the argument that the SRB had no legal basis for adopting the contested decision with retroactive effect. It pointed out that the principle of legal certainty precludes a measure from taking effect as from a date prior to its publication unless, exceptionally, that is required by the objective pursued and the legitimate expectations of the persons concerned are duly respected. If these two conditions are met, the power to adopt a measure with retroactive effect derives from general principles of Union law and does not require an express legal basis. In this case, both conditions were met. In particular, the General Court emphasised that the contested decision did not alter the extent of NRW.Bank’s obligations or the amount of its contribution. The only new element in the contested decision was a more detailed explanation as regards the calculation of the contributions, which was introduced in order to remedy the SRB’s failure to state reasons in the original 2016 decision.

In relation to that explanation, the General Court dismissed all claims alleging an inadequate statement of reasons in relation to the calculation of NRW.Bank’s contribution and the determination of the annual target level. The annual target level is the total amount of contributions collected in a given year. Its amount is distributed among the institutions. Thus, an increase or decrease in this amount leads to a corresponding increase or decrease in each individual contribution. The General Court examined whether the institutions liable to pay contributions could understand from the contested decision the main steps in the calculation of the amount of the annual target level, including the mathematical formula and the individual coefficients used therein.

IV. Concluding remarks

Credit institutions have often invoked the plea of illegality to challenge various provisions of Regulation 2015/63 However, none of their claims has so far been successful, partly because the Commission enjoys a wide margin of discretion when adopting delegated acts. Consequently, judicial review is in principle limited to verifying whether the Commission has made a manifest error of assessment, misused its powers or manifestly exceeded the limits of its discretion.

By contrast, actions alleging that the SRB has failed to comply with its duty to state reasons have had some success. For example, in the above mentioned 2019 judgments, the General Court found that ‘the SRB has committed a number of infringements of the obligation to state reasons’, as its 2016 decision contained ‘no information regarding the successive steps in the calculation of the applicant’s contribution, or the figures related to those various steps’ and did not explain ‘how the SRB applied [the relevant rules of Regulation 2015/63] in the applicant’s case in order to arrive at the amount of the contribution concerning it set out in the annex to the first contested decision’ (Hypo Vorarlberg Bank, paras. 177 – 178, 181 and Portigon, paras. 165–166, 169).

The General Court carries out a thorough assessment of the adequacy, plausibility and consistency of the reasons given by the SRB. In the present case, it emphasised the particular importance of the SRB’s obligation to state reasons in relation to the annual target level. In view of the outcome of the case, it appears that, at least in relation to NRW.Bank, the SRB has successfully remedied its failure to comply with its duty to state reasons with regard to the calculation of the contributions for the year 2016.

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

SUGGESTED CITATION: Budinská, B.; “On the inclusion of liabilities from ancillary promotional activities into the calculation of ex ante contributions (NRW.Bank v SRB, T 466/16 RENV)”, EU Law Live, 12/03/2024, https://eulawlive.com/analysis on the inclusion of liabilities from ancillary promotional activities into the calculation of ex ante contributions nrw bank v srb t 466 16 renv by barbora budinska/

Clarifications regarding the recovery of fraudulently obtained agricultural aid and the notion of ‘beneficiaries’

Erriketi Tla da Silva

On 29 February 2024 the Court of Justice rendered its judgement on Case C‑437/22. The case is a preliminary reference seeking clarifications regarding the interpretation of Article 7 of Council Regulation 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (‘Regulation 2988/95’), Articles 54(1) and 56 subparagraph 1 of Regulation (EU) 1306/2013 of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) 352/78, (EC) 165/94, (EC) 2799/98, (EC) 814/2000, (EC) 1290/2005 and (EC) 485/2008 (‘Regulation 1306/2013’), and Article 35(6) of Commission Delegated Regulation (EU) 640/2014 of 11 March 2014 supplementing Regulation (EU) 1306/2013 of the European Parliament and of the Council with regard to the integrated administration and control system and conditions for refusal or withdrawal of payments and administrative penalties applicable to direct payments, rural development support and cross compliance (‘Commission Delegated Regulation 640/2014’). The clarifications sought concern the recovery of illegally obtained agricultural aid by the representatives of a legal person, as well the interpretation of the term ‘beneficiary’ of aid.

Background of the case

The case concerns company X OÜ, which merged with company Y OÜ and received agricultural aid under Estonia’s rural development programs. The two successive representatives of company X OÜ were found guilty of subsidy fraud for deliberately providing false information to Estonian authorities to obtain the subsidies. Both on first instance and on appeal the respective Estonian courts ordered the representatives to repay the wrongfully received aid. However, the Estonian Supreme Court, while upholding the convictions of the representatives for subsidy fraud, expressed doubts as to the possibility of ordering the recovery of the aid from the representatives of company X and not from the company Y OÜ, which succeeded the company X OÜ in its rights and obligations.

The referring court inquired:

1) whether the relevant provisions of EU law make it possible to pursue the recovery of agricultural aid which has been received fraudulently not only from the beneficiary of that aid, but also from persons who, without being able to be regarded as beneficiaries of that aid, participated in the acts that resulted to its undue payment.

2) whether, where a legal person has fraudulently obtained agricultural aid due to acts attributable to its representatives, those representatives may be regarded as ‘beneficiaries’ of that aid within the meaning of EU law.

The Court’s judgement

The Court followed a systematic and theological interpretation in its analysis of the relevant provisions of EU law in order to answer these questions.

Firstly, the Court noted that recital 39 of Regulation 1306/2013 stresses the need for Member States to prevent, detect and deal effectively with any irregularities and that Regulation 2988/95 should be applied. Furthermore, Article 54(3)(b) of Regulation 1306/2013, which allows Member States not to pursue recovery of aid unduly received where this proves impossible because of the insolvency of the debtor or the persons who are liable for the irregularity, would be deprived of its ‘effet utile’ if it were not possible to recover that from the latter persons. In this regard, the possibility of pursuing recovery of unduly received aid not only from the beneficiary, but also from those who deliberately provided false information with a view to obtaining it, contributes to the objective of protecting the Union’s financial interests, particularly where the beneficiary is a legal entity which no longer exists or does not have sufficient resources to repay the aid.

Furthermore, the Court clarified that requiring such persons to repay aid unduly received does not infringe the principles of legal certainty and of legality, insofar as the repayment is not a sanction, but the consequence of non compliance and the relevant legislation is sufficiently clear in this regard.

The Court stated that even if Article 56 of Regulation 1306/2013 does not explicitly provide for an obligation to repay aid for such persons, it must be read in the light of recital 39 of that Regulation. Furthermore, Article 2(1)(g) of Regulation 1306/2013 explicitly refers to Regulation 2988/95 as regards the definition of the term ‘irregularity’ and under Article 7 of Regulation 2988/95, persons who have participated in the irregularity in question may also be required to repay the aid.

Thus, the Court, siding with the Opinion of AG Pitruzzella, concluded that, according to Article 56 of Regulation 1306/2013, read in conjunction with Article 54(1) of that Regulation and Article 35(6) of Commission Delegated Regulation 640/2014 and in the light of Article 7 of Council Regulation 2988/95, the recovery of fraudulently received agricultural aid can be pursued not only against the beneficiary of the aid, but also against persons who have deliberately provided false information with a view to obtaining it.

Regarding the second question, the Court concluded that it cannot be deduced that the representatives of a legal person who have committed fraudulent acts in order to enable the latter to obtain agricultural aid can be considered as ‘beneficiaries’ of the aid. More specifically, they cannot be considered as ‘beneficiaries’ since they do not fall within any of the three categories of persons referred to in point (1) of Article 2(1) of Commission Delegated Regulation 640/2014.

Conclusion

In conclusion, the Court provided useful clarifications regarding the recovery of unduly paid aid and the term ‘beneficiary’ of aid by confirming that a Member State may demand repayment of agricultural aid unduly paid to a beneficiary company, directly from the natural persons who are its legal representatives. However, the latter cannot be regarded as beneficiaries of the aid.

Erriketi Tla da Silva is a PhD candidate in Wageningen University and an Academic Assistant at the College of Europe. She holds an LL.M. in European Legal Studies from the College of Europe as well as an LL.M. in Environmental Law from the National and Kapodistrian University of Athens. She is a qualified lawyer, registered in the Athens Bar Association.

SUGGESTED CITATION: Tla da Silva, E.; “Clarifications regarding the recovery of fraudulently obtained agricultural aid and the notion of ‘beneficiaries’”, EU Law Live, 14/03/2024, https://eulawlive.com/analysis clarifications regarding the recovery of fraudulently obtained agricultural aid and the notion of beneficiaries by erriketi tla da silva/

THE LONG READ

The Unified Patent Court is finally in action: Has a new judicial model entered the scene?

Alberto Miglio 1

Introduction

One of the main innovations in the EU judicial landscape in 2023 was the entry into operation of the Unified Patent Court (‘UPC’) on 1 June. There are several reasons why the new court deserves attention, not just from industrial property experts, but also from anyone interested in the development of EU law. In addition to its sheer economic importance, the UPC provides an original judicial model and its relationship with EU law and the CJEU raises several interesting questions.

For sure the UPC is a major game changer in patent dispute resolution. In the EU Member States that are contracting parties to the agreement establishing it (‘UPCA’),2 the new court has exclusive competence on actions for infringement and revocation of European patents, including but not limited to those granted unitary effect pursuant to Regulation 1257/2012 (the ‘Unitary Patent Regulation’).3

Subject to the possibility for patent holders to opt out of the UPC jurisdiction for a transitional period of seven years, this leaves out only purely national patents, which today represent a marginal portion of the market in terms of economic value. Since the majority of EU Member States, including those with the highest patent density, are contracting parties to the UPCA, the Court has or will soon have jurisdiction over most of the European market for patents. In the first nine months of operation, a total of 274 cases were registered4 and the UPC had issued more than 160 decisions as of 18 January 2024.5 Both ordinary European patents and European patents with unitary effect (or ‘unitary’ patents) fall within the jurisdiction of the UPC. European patents are not unitary titles, but mere bundles of national patents granted through a single application procedure by the European Patent Office (‘EPO’), an international body established under the 1973 European Patent Convention (‘EPC’), to which several non EU countries are also parties. On the holder’s request, European patents can now be granted ‘unitary effect’ throughout the territory of the Member States applying the Unitary Patent Regulation and having ratified the UPCA. These are currently 17 Member States, but the number is going to

1. Associate Professor of EU Law at the University of Turin.

2. Agreement on a Unified Patent Court, 2013 OJ C 175, p. 1.

3. Regulation (EU) No 1257/2012 of the European Parliament and of the Council of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection 2012 OJ L 361, p. 1.

4. See here

5. See here. For a brief overview of some significant cases, see Vilhelm Schröder and Jasmin Metwally, ‘The Unified Patent Court – 2023 Decisions in a Nutshell’, 18 January 2024, www.hannessnellman.com. A case law tracker is also available at www.wolterskluwer.com

increase as more States join the UPCA. The Regulation was adopted through the enhanced cooperation procedure, with 25 participating Member States. Croatia and Spain are currently not participating, but they could decide to join the enhanced cooperation at a later stage.

Traditionally, European patents must be litigated separately in each country where they enjoy protection, at a significant cost and with the risk of conflicting judgments. While this is still the case with respect to the non contracting States, the UPCA revolutionises dispute resolution on European patents by concentrating it before a supranational court. Despite being composed of several divisions, the UPCA is conceived as a single judicial body and its judgments automatically display their effects in all contracting States. It is therefore not an exaggeration to state that the UPC’s entry into operation ushers in ‘a new era’ for patent litigation.6

A court of a new kind

What kind of court, then, is the UPC? As a fully fledged judicial body set up by States through an international agreement and multinational in its composition, it has the typical features of an international court.7 However, at the same time it is also a court common to several EU Member States. In other words, it is equated to the domestic courts of the Member States that are parties to the UPCA for the purpose of its relationship with the EU legal order and with the CJEU.

This peculiar qualification has a precedent in the Benelux Court of Justice and is a consequence of the rejection by the CJEU of a bolder plan. The original project envisaged the establishment of a European and Community Patent Court (‘ECPC’) through a mixed agreement, with the participation of the EU, (all) the Member States and the third countries parties to the EPC. However, in the seminal Opinion 1/09,8 the CJEU ruled that the ECPC project affected the autonomy of the EU legal order and of its judicial system, in a move that foreshadowed the expansive construction of the principle of autonomy in Opinion 1/139 and in the Achmea judgment.10 As a result, the prospect of involving third countries as well as the EU was abandoned. Instead, the agreement was concluded solely between a group of Member States.

To ensure its consistency with EU law, the UPC was rebranded as a court common to the contracting Member States, entitled to send references for preliminary ruling to the CJEU and obliged to do so when

6. Martin Stierle, ‘The Rise of the Unified Patent Court: A New Era’, IIC – International Review of Intellectual Property and Competition Law 54, 2023, pp. 631-633.

7. Bruno De Witte and Thibault Martinelli, ‘Treaties between EU Member States as Quasi-Instruments of EU Law’, in Marise Cremona and Claire Kilpartick (eds), EU Legal Acts: Challenges and Transformations, Oxford University Press, 2018, p. 184.

8. Opinion 1/09 of 8 March 2011, (Creation of a unified patent litigation system) EU:C:2011:123.

9. Opinion 1/13 of 14 October 2014, (Convention on the civil aspects of international child abduction), EU:C:2014:2303.

10. Judgment of 6 March 2018, Achmea, C-284/16, EU:C:2018:158.

it adjudicates at last instance.11 Interestingly, the UPCA also contains the most radical assertion of the primacy of EU law over domestic law to be found in the practice of Member States: Article 20 UPCA requires the UPC to ‘apply Union law in its entirety and [...] respect its primacy ’. The preamble further clarifies that ‘the primacy of Union law [...] includes the TEU, the TFEU, the Charter of Fundamental Rights of the European Union, the general principles of Union law as developed by the Court of Justice of the European Union, and in particular the right to an effective remedy [...], the case law of the Court of Justice of the European Union and secondary Union law’.

The UPC is a complex judicial machinery. The Court of First Instance is composed of regional and local divisions disseminated throughout the contracting States –four local divisions are in Germany, the State with the highest number of patents– and a central division with three seats in Paris, Munich and Milan. The allocation of competence between the different divisions of the Court of First Instance is regulated by the UPCA, whereas the international jurisdiction of the UPC is addressed in the Brussels I bis Regulation,12 which was amended in 2014 to accommodate the new court into the scheme of EU jurisdiction rules on civil and commercial matters.13 A Court of Appeal with its seat in Luxembourg is entrusted with hearing appeals against decisions by the Court of First Instance and thus with ensuring the consistency of the UPC’s case law. Concerns for consistency and predictability weighed heavily in the design of the new judicial body, influencing the choice for multinational panels and the reviewability of first instance decisions by the Court of Appeal not only on points of law, but also on matters of fact.14

Despite the precedent of the Benelux Court of Justice, the UPC represents a striking novelty in the EU judicial architecture. Unlike the Benelux Court, the UPC entirely replaces national courts within the scope of its jurisdiction, which is economically highly significant albeit materially limited. With the exception of the granting phase (which is entrusted to the EPO) and subject to the opt outs in the transitional period, the UPC will become the sole judge of European patents, whether endowed with unitary effect or not.

Although labelled a ‘common court’ and equated for certain purposes to the domestic courts of the Member States, the UPC is therefore not a court like any other. Its uniqueness as an international or supranational court deemed to replace the national judiciaries in patent litigation accords with its high degree of specialisation. Its composition was designed with a view to meeting the needs of the patent community, particularly in respect of its ability to issue sound and consistent decisions on technically

11. Article 21 UPCA.

12. Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ 2012 L 351, p. 1.

13. Regulation (EU) No 542/2014 of the European Parliament and of the Council of 15 May 2014 amending Regulation (EU) No 1215/2012 as regards the rules to be applied with respect to the Unified Patent Court and the Benelux Court of Justice, OJ 2914 L 163, p. 1.

14. Article 73(3) UPCA.

complex issues. This explains why the UPC is composed of a mix of legally and technically qualified judges.15 Regional and local divisions sit in panels of three legally qualified judges, but a technically qualified judge may be added upon request. Panels of the central division consist of two legally and one technically qualified judge. Legal and technical qualifications combine in the Court of Appeal, sitting as a five member bench of three legally and two technically qualified judges.

The UPC and the CJEU

Since the UPC largely replaces national courts in patent litigation, it is deemed to become the main, if not the sole, judicial body able to engage in a dialogue with the CJEU in the area of patent protection. However, the extent of the UPC’s power (or obligation, for the Court of Appeal) to send references for preliminary ruling is debated.

To begin with, some have questioned whether the UPC may legitimately be viewed as a court common to several Member States and thus able to submit references to Luxembourg pursuant to Article 267 TFEU.16 In all likelihood, the CJEU will dispel those doubts, interpreting the notion of common court extensively enough to cover the UPC. Rejecting an offer of dialogue from the UPC would be unwise because it would risk locking the CJEU out of patent litigation completely and compromising the uniform application of EU law in an important sector of the single market.17

Nonetheless, it is unclear what room there will be for references. Under Article 24 UPCA, the UPC has the power to apply a wide array of sources: EU law including the Unitary Patent Regulation, the UPCA itself, the EPC, ‘other international agreements applicable to patents and binding on all the Contracting Member States’ and national law. Obviously, the CJEU does not have jurisdiction to issue preliminary rulings on the EPC, given that the EU is not a contracting party. By contrast, the Unitary Patent Regulation falls within the CJEU’s jurisdiction. Yet, the Regulation does not autonomously define the scope of protection of unitary patents. In a move intended to limit interference from the CJEU in patent disputes, at a very late stage of the legislative process the substantive provisions on the right of the patent holder to prevent use of the invention, on limitations, prior use and exhaustion were moved out of the regulation proposal and inserted into the UPCA.18 They were replaced by an elaborate reference to national law, including the harmonised provisions in the UPCA.19

15. For some statistics on the judges’ background, see M. Klos, ‘UPC judges: A complete overview’, Juve Patent, 16 August 2023.

16. Thomas Jaeger, ‘Issues of EU Law Compatibility of the Patent Package’, in Luc Desaunettes-Barbero, Fernand de Visscher, Alain Strowel and Vincent Cassiers (eds), Unitary Patent Package & Unified Patent Court—Problems, Possible Improvements and Alternatives, Ledizioni, 2023, pp. 189-194.

17. See Hanns Ullrich, ‘The Unified Patent Court’, Yearbook of European Law 42, 2023, 24-25.

18. Articles 25-29 UPCA.

19. Article 5(3) of Regulation 1257/2012.

The crucial question is therefore whether and to what extent the CJEU is competent to interpret provisions of the UPCA or to indirectly affect its interpretation by articulating the interplay between the UPCA and provisions of EU law. Since agreements between Member States fall outside its jurisdiction, the orthodox view holds that the CJEU has no authority to issue preliminary rulings on the interpretation of the UPCA.20 However, some authors have argued that the UPCA is incorporated into EU law by virtue of either Article 5(3) (containing the indirect reference to the UPCA mentioned above)21 or Article 5(1) of the Unitary Patent Regulation (which defines the protection granted to the patent as ‘the right to prevent any third party from committing acts against which that patent provides protection’).22

In any event, even if it is not competent to interpret the UPCA as such, the CJEU might be able to indirectly influence its interpretation by giving preliminary rulings on EU law provisions the UPCA interacts with. As much as its interpretation is a matter for the domestic courts of the Member States, national law must be construed consistently with EU law, as interpreted by the CJEU. National courts are also entitled to request rulings from the CJEU on the compatibility of domestic law with EU law, and they do so routinely. In the same vein, by interpreting EU law provisions the CJEU could also rule on how the UPCA should be construed in order to be consistent with EU law. Sources of EU law which, although not specifically dealing with patent protection, could be relevant to patent litigation before the UPC include, for instance, the EU Charter of Fundamental Rights and the Directive on the enforcement of intellectual property rights.23 However, it remains to be seen whether the UPC, as a highly specialised court confident about its expertise and expected to deliver judgments swiftly, will feel in need of much guidance from the CJEU.

Conclusion

Although the UPC has only been in operation for a few months, the ‘unitary patent package’ of which it forms part has already left an enduring mark in the EU legal order. First, in the context of a challenge against the Regulation on the unitary patent, the CJEU partially redrafted the boundaries of differentiated integration.24 Not only did the Court adopt a liberal interpretation of the Treaty rules on enhanced cooperation, but it also held that the effects of a piece of EU legislation may be made

20. See, for instance, De Witte and Martinelli, p. 184; Tuomas Milly, ‘Hovering between Intergovernmentalism and Unionization: The Shape of Unitary Patents’, 5 Common Market Law Review 54, 2017, pp. 1381-1425, spec. 1385.

21. Winfried Tilmann, ‘Article 5 of Regulation (EU) No 1257/2012‘, in Winfried Tilmann and Clemens Plassmann (eds) Unified Patent Protection in Europe, Oxford University Press, 2018.

22. Ullrich, p. 29.

23. Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, 2004 OJ L 157, p. 45.

24. Judgment of the Court of Justice of 16 April 2013, Spain and Italy v. Council (C-274/11 and C-295/11, EU:C:2013:240). See Emanuela Pistoia, ‘Enhanced cooperation as a tool to… enhance integration? Spain and Italy v. Council’, 1 Common Market Law Review 51, 2014, pp. 247-260.

dependent on an international agreement between Member States.25 Second, Regulation 542/2014, intended to accommodate the UPC within the system of rules on jurisdiction in civil and commercial matters, introduced new provisions with universal scope at odds with the underlying logic of the Brussels I bis Regulation.26 Third, due to its unique features and the peculiar way in which it is integrated in the EU system of judicial protection, the UPC might provide a blueprint for future reforms of the EU judicial system. Recent reforms of the CJEU, including the suppression of the Public Service Tribunal, the increase in size of the General Court and the expansion of its competences (lastly, in the domain of the preliminary ruling procedure) have likely spelled the death knell for specialised tribunals for the foreseeable future. Against this background, and if the UPC eventually proves successful despite the long delay between the adoption of the ‘unitary patent package’ in 2012/2013 and its entry into operation, the Member States and perhaps some EU institutions might be tempted to replicate this judicial model in other areas.27 This provides one more reason to watch closely how the UPC operates and how its relationship with the CJEU unfolds.

SUGGESTED CITATION: Alberto Miglio: “The Unified Patent Court is finally in action: Has a new judicial model entered the scene? ”, EU Law Live Weekend Edition nº 178, https://eulawlive.com/weekend edition/weekend edition no178/

25. See Thomas Jaeger, ‘Reset and Go: Unitary Patent System Post-Brexit’, IIC – International Review of Intellectual Property and Competition Law 48, 2017, pp. 254-281; Rafal Sikorski, ‘Is the Unitary Patent a Truly Hamonized Right?’ in Luc Desaunettes-Barbero, Fernand de Visscher, Alain Strowel and Vincent Cassiers (eds), Unitary Patent Package & Unified Patent Court—Problems, Possible Improvements and Alternatives, Ledizioni, 2023, pp. 233-235.

26. See Alberto Miglio, ‘The Jurisdiction of the Unified Patent Court: A Model for the Application of the Brussels Ia Regulation to non-EU Disputes?’, in Alexander Trunk and Nikita Hatzimichail (eds), EU Civil Litigation and Third Countries: Which Way Forward?, NomosHart, 2021, pp. 71-93.

27. See Jacopo Alberti, ‘New Developments in the EU System of Judicial Protection: The Creation of the Unified Patent Court and its Future Relations with the CJEU’, 1 Maastricht Journal of European and Comparative Law 24, 2017, pp. 6-24.

HIGHLIGHT F THE WEEK S O

Preliminary reference concerning a European arrest warrant issued for a person to serve sentence result ing from violation of a sentence of police supervision

Monday 11 March

Official publication was made of a reference for a preliminary ruling on whether, where the court that imposed that custodial sentence had discretion to impose a custodial sentence (though no discretion as to the duration of the sentence if imposed), the proceedings leading to the imposition of that custodial sentence are part of the ‘trial resulting in the decision’ for the purposes of Article 4a(l) of Council Framework Decision 2002/584/JHA: Abbottly (C 798/23).

Read on EU Law Live

Four actions for annulment against Council for restrictive measures concerning actions undermining the sovereignty of Ukraine, published in OJ

Monday 11 March

Official publication was made of four actions for annulment against the Council concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine: Abramovich v Council (Case T 1105/23); Vinokurov v Council (Case T 1106/23); Timchenko v Council (Case T 1107/23) and Khudaverdyan v Council (Case T 1116/23).

Read on EU Law Live

Preliminary ruling request on the interpretation of rules concerning VAT in the context of universal postal services, published in OJ

Monday 11 March

The official journal of the EU published a preliminary ruling request, lodged on 19 December 2023, from the Varhoven administrativen sad (Bulgaria), concerning the provision of the universal postal service in the territory of Bulgaria: Bulgarian Posts (C 785/23).

Read on EU Law Live

Preliminary ruling request on copyright protection for works of applied art, published in OJ

Monday 11 March

The Bundesgerichtshof (Federal Court of Justice) in Germany referred to the Court of Justice, a case, Case C 795/23, konektra, involving konektra GmbH and LN as defendants, respondents, and appellants on a point of law, and USM U. Schärer Söhne AG as the applicant, appellant, and respondent in the appeal on a point of law, and concerning the interpretation of certain articles of Directive 2001/29/EC regarding copyright protection.

Read on EU Law Live

Court of Justice to rule on land acquisitions: balancing agricultural sustainability and free movement of capital

Monday 11 March

The Landesverwaltungsgericht Tirol (Regional Administrative Court of Tyrol) in Austria submitted a case, Case C 714/23, Benediktinerabtei Ettal, to the Court of Justice of the European Union for a preliminary ruling. The appellant in the main proceedings is Benediktinerabtei Ettal, while the respondent authority is Bezirkshauptmannschaft Innsbruck.

Read on EU Law Live

EDPS imposes corrective measures on the Commission for violating personal data processing rules when using Microsoft 365

Monday 11 March

The European Data Protection Supervisor (EDPS) found that the European Commission has infringed key data protection rules when using Microsoft 365, and has, therefore, imposed corrective measures in that regard.

Read on EU Law Live

Draft Rules of Procedure to implement the Reform of the Court of Justice Statute,

published

Monday 11 March

A letter, dated 27 February 2024, from Mr. Koen Lenaerts, President of the Court of Justice of the European Union, to Ms Hadja Lahbib, President of the Council of the European Union, transmitting draft amendments to the Rules of Procedure of the Court of Justice, was published.

Read on EU Law Live

New rules enhancing transparency and targeted political advertising, adopted by Council

Monday 11 March

The Council adopted new rules regarding the transparency and targeting of political advertising, which aims at countering information manipulation and foreign interference in elections.

Read on EU Law Live

Amendment to Regulation (EC) No 1768/95 regarding liability for damage under Council Regulation (EC) No 2100/94

Tuesday 12 March

The European Commission has issued Regulation (EU) 2024/833, which aims to reflect the costs incurred by breeders in investigating and evaluating non compliance, which typically constitute further damage under Article 94(2) of Regulation (EC) No 2100/94.

Read on EU Law Live

Establishment of official holidays and judicial vacations, published in OJ

Tuesday 12 March

The Court of Justice and the General Court issued decisions outlining the official holidays and dates for judicial vacations. Read on EU Law Live

Preliminary ruling request concerning the interpretation of CISA Articles in light of Charter provisions, published in OJ

Tuesday 12 March

The Tribunal Judiciaire de Paris submitted a request for a preliminary ruling regarding the interpretation of Article 54 of the Convention implementing the Schengen Agreement (CISA) in conjunction with Article 50 of the Charter of Fundamental Rights: Case C 701/23, SWIFTAIR.

Read on EU Law Live

Provisional agreement on new platform work directive, confirmed by Council

Tuesday 12 March

The EU employment and social affairs ministers confirmed a provisional agreement reached with the European Parliament’s negotiators on the platform work directive, the aim of which is to improve working conditions and regulate the use of algorithms by digital labour platforms.

Read on EU Law Live

Court of Justice streaming hearing of case concerning the compatibility of Polish legislation waiving mechanism for setting judges’ pay on basis of objective criteria with the principle of judicial indepen dence

Tuesday 12 March

This Court of Justice’s hearing in Sąd Rejonowy w Białymstoku; Adoreikė (Joined cases C 146/23; C 374/23), a case concerning a preliminary reference from the Sąd Rejonowy w Białymstoku (Poland), lodged on 10 March 2023, was streamed on the Court’s website.

Read on EU Law Live

Preliminary reference on the compatibility of national practice granting access to personal data without data subjects’ consent, published in OJ

Tuesday 12 March

The Official Journal of the EU published a request for a preliminary ruling, from the Juzgado de Primera Instancia No 19 de Barcelona (Spain), lodged on 14 November 2023, regarding the handing over by a court of the personal data of the parties and of children and teenagers to the parenting coordinator and authorisation to access the processed personal data of those persons in third party (including healthcare) archives: Encarna (C 683/23).

Read on EU Law Live

EU mandates negotiations with Switzerland on bilateral relations

Wednesday 13 March

The Council authorised the Commission to negotiate, on behalf of the EU, a broad package of measures with Switzerland as the basis for future EU Switzerland relations.

Read on EU Law Live

Commission recommends opening accession negotiations with Bosnia and Herzegovina and reports on Moldova’s and Ukraine’s progress

Wednesday 13 March

On 12 March, the European Commission recommended opening EU accession negotiations with Bosnia and Herzegovina and discussed the upcoming report to the Council on the progress made by Ukraine and Moldova to address the outstanding steps made in the Commission’s Enlargement report of the 8th November.

Read on EU Law Live

EU extends sanctions against Russia for aggression towards Ukraine for another six months

Wednesday 13 March

The EU extended its individual sanctions against Russia, which target individuals and entities responsible for undermining Ukraine’s territorial integrity, sovereignty, and independence, for another six months until September 15, 2024.

Read on EU Law Live

Provisional agreement on proposal to boost cross border cooperation for road safety related offences, agreed by Council and Parliament

Wednesday 13 March

As part of the ‘Road Safety’ package, the Council and European Parliament’s negotiators reached a provisional agreement on a proposal amending the 2015 directive on cross border exchange of information on road safety related traffic offences.

Read on EU Law Live

General Court annuls Council decisions regarding public access to documents in ClientEarth v Council case

Wednesday 13 March

The General Court delivered its judgment in ClientEarth v Council (T 682/21) concerning the defendant’s decision to refuse access to certain documents requested pursuant to Regulation (EC) 1049/2001 regarding public access to European Parliament, Council and Commission documents and Regulation (EC) 1367/2006 on the application of the Aarhus Convention on Access to Information, Public Participation in Decision making and Access to Justice in Environmental Matters to Community Institutions and Bodies.

Read on EU Law Live

New Commission Implementing Regulation on definitive anti dumping duty imposed on importers of electrolytic manganese dioxides from China, published in OJ

Thursday 14 March

Official publication was made of Commission Implementing Regulation 2024/844 imposing a definitive anti dumping duty and definitively collecting the provisional duty imposed on imports of electrolytic manganese dioxides originating in the People’s Republic of China.

Read on EU Law Live

Request for an Advisory Opinion from the EFTA Court by Oslo District Court on emissions allowanc es settlement in insolvency cases, published in OJ

Thursday 14 March

The Oslo District Court sought an Advisory Opinion from the EFTA Court regarding a case involving Norwegian Air Shuttle ASA and the Norwegian State, represented by the Ministry of Climate and Environment.

Read on EU Law Live

Council adopts negotiating mandate regarding new rules to counter abuse of visa free regime by third countries

Thursday 14 March

The Council agreed on its position on a draft regulation, which updates the mechanism that allows the Union to suspend visa free travel for third countries.

Read on EU Law Live

Court of Justice finds conflict of interest in group of experts consulted by EMA to assess the marketing authorisation for a medicinal product for human use

Thursday 14 March

The Fourth Chamber of the Court of Justice delivered its judgment, on appeal, concerning the appellant’s claim that the Court should set aside the judgment of the General Court in Case T 556/20, D&A Pharma v Commission and EMA, by thus annulling the Commission’s Implementing Decision of 6 July 2020, C(2020) 4694 final refusing the application for marketing authorisation for Hopveus – sodium oxybate, a medicinal product for human use, under Regulation 726/2004: D & A Pharma v Commission and EMA (C 291/22 P).

Read on EU Law Live

Request for EFTA Court’s Advisory Opinion on trade secrets and EEA Law, published in OJ

Thursday 14 March

The Eidsivating Court of Appeal requested an Advisory Opinion from the EFTA Court concerning the case of Låssenteret AS v Assa Abloy Opening Solutions Norway AS, which pertains to several questions regarding the interpretation and application of Directive 2016/943 on the protection of trade secrets, as well as the broader principles of EEA law.

Read on EU Law Live

Court of Justice concludes that the UK failed to fulfill its obligations under EU law for the Supreme Court ruling in Micula case

Thursday 14 March

The Court of Justice rendered its judgment in a case concerning a claim from the Commission that the Court should declare that the UK, in authorising the enforcement of the arbitral award rendered in an ICSID case, had failed to fulfil its obligations under EU law and the Withdrawal Agreement.

Read on EU Law Live

AG Ćapeta: Court of Justice should dismiss appeals in Banco Popular saga

Thursday 14 March

Advocate General Ćapeta delivered her Opinions in cases P, García Fernández and Others v Commission and SRB,Case C‑541/22 and Aeris Invest Sàrl vs Commission And SRB, Case 535 22 P, both concerning the events surrounding the resolution of Banco Popular, a Spanish bank, and the actions taken by various regulatory bodies and institutions during its crisis.

Read on EU Law Live

State Aid approval decisions in the Official Journal

Friday 15 March

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

Read on EU Law Live

Formal proceedings against AliExpress, under the DSA, initiated by the Commission

Friday 15 March

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

Read on EU Law Live

Commission renews insurance equivalence decision for US

Friday 15 March

The European Commission renewed the 2015 equivalence decision, ensuring EU insurance groups can operate in the US using local capital requirement rules for another decade.

Read on EU Law Live

Commission sends LinkedIn request for information, under DSA, for alleged non compliance with prohibition of targeted advertising using sensitive data

Friday 15 March

The European Commission renewed the 2015 equivalence decision, ensuring EU insurance groups can operate in the US using local capital requirement rules for another decade.

Read on EU Law Live

Council and Parliament reach agreement on proposed regulation for a European Health Data Space (EHDS)

Friday 15 March

The Union’s co legislators reached a provisional agreement amending the Commission’s proposal on the European Health Data Space.

Read on EU Law Live

EU proposes stricter regulations on firearms

Friday 15 March

The Council and the European Parliament reached a provisional agreement on updated EU rules on the import, export and transit of firearms into and from the EU.

Read on EU Law Live

Request for information, under DSA, on generative AI sent to eight very large online platforms and very large online search engines

Friday 15 March

The Commission formally sent requests for information under the Digital Services Act (DSA) to Bing and Google Search, as well as to Facebook, Instagram, Snapchat, TikTok, YouTube, and X.

Read on EU Law Live