The Week Nº18

IN-DEPTH:

Package travel and covid disruption – unavoidable and extraordinary circumstances defined? (Case C-299/22 Tez Tour)

Christopher Bisping

New developments concerning Article 58a of the Statute of the Court of Justice of the European Union

Luca De Lucia

To identify or not to identify, that’s the discrimination: Case C-491/21, Direcţia pentru Evidenţa Persoanelor şi Administrarea Bazelor de Date

Miguel del Moral Sánchez

Cars, Consumers, & the Court: considering leasing agreements in Cases C-38/21, C -47/21, & C -232/21

Elijah Granet

Right to access harmonised standards: Public.Resource.Org and Right to Know v Commission and Others, C-588/21 P

Björn Lundqvist

Shared accountability, low compensation: joint and several liability between Europol and a Member State for damages from unlawful data processing (Kočner v Europol , C -755/21 P)

Andrea Parziale

When does a slaughterhouse require a permit under the Industrial Emissions Directive? (Moesgaard Meat 2012, C-311/22)

Lolke Braaksma and Jonah van der Werf

The General Court confirms that the financing measures for the construction and operation of a 19 km tunnel between Denmark and Germany constitute State aid compatible with the internal market (Cases T-7/19, T-364/20 and T-390-20)

Alma Dangy

Lost in translation? Adjusting exported survivor’s pensions to the cost of living of the country of residence, on the basis of the EU’s Association Agreement with Algeria (Case C-549/22)

Nikos Parthenopoulos

With IPCEIs into the Subsidy Race: Commission Approves Up to €6.9 Billion of State aid for Hydrogen Infrastructure and €1.2 Billion in Aid for Cloud and Edge Computing

Christopher Montgomery Vollert and Philipp Kehl

THE LONG READ:

From Rejection to Revival: The Long Journey to the Platform Work Directive’s Approval

Helena Verhuyck

HIGHLIGHTS OF THE WEEK

IN-DEPT H

Package travel and covid disruption – unavoidable and extraordinary circumstances defined? (Case C-299/22 Tez Tour)

Christopher Bisping

Eagerly awaited, on 29 February 2024, the Court of Justice has ruled on whether covid-restrictions can constitute unavoidable and extraordinary circumstances that allow a tourist to cancel a travel package. As was to be expected, the Court sided with the travelling consumer, but it attempted to balance the interests of the parties to some extent. This author’s view is that there is still some uncertainty remaining after this and several other judgments and that the underlying legal instruments ought to have been better aligned to provide a satisfactory answer.

1. The facts in Tez Tour (Case C-299/22)

In Tez Tour the traveller had booked a trip to the United Arab Emirates on 10 February 2020 and informed the tour operator 17 days later that he did not wish to travel. The question was whether he was entitled to a full refund without a termination fee. Under Article 14(2) of the Package Travel Directive 2015/2302 such a right exists ‘in the event of unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity and significantly affecting the performance of the package, or which significantly affect the carriage of passengers to the destination.’

The Lithuanian courts rejected the claim as it did meet the requirements for force majeure under Lithuanian law, which was the local implementation of the unavoidable and extraordinary circumstances defence in the Package travel Directive. The Court of Justice was asked to answer four questions: (1) Whether it is necessary for the local authorities to have issued an official travel warning/ban for the assumption of unavoidable and extraordinary circumstances due to covid. (2) Whether the determination of unavoidable and extraordinary circumstances is to be done on a purely objective basis or whether subjective factors, such as certain tourists’ fears, or individual circumstances, such as age or pre-existing illness, can be taken into account? (3) What role is played by foreseeability for that test? (4) whether only the situation at the destination of the trip is relevant or whether other places, in particular the place of departure and transfer points, can give rise to unavoidable and extraordinary circumstances.

2. No need for official travel warnings

The Court of Justice confirmed its position taken in its earlier judgment in Que choisir and CLCV Case C-407/21 that even in the absence of official travel warnings a pandemic can constitute unavoidable and extraordinary circumstances as not all national authorities issue such warnings with the same speed or under the same circumstances. At the same time, it is submitted here that official recommendations not to travel to a certain

area, while not necessary conditions, as explained by the Court of Justice, would certainly constitute sufficient conditions for the assumption that unavoidable and extraordinary circumstances exist.

3. Objective standards of assessment with subjective elements

Next the Court of Justice determined that not only objective impossibility of the package or aspects thereof could be considered as giving rise to unavoidable and extraordinary circumstances, but that exposure to health risks for the travellers was sufficient in that regard. The court referred to its earlier judgment in FTI Touristik C-396/21 where it had held that the tour operator was strictly liable for any deviation of the elements of the package from the promised standard, and that limitations imposed due to existing covid restrictions were relevant factors in the assessment of conformity. Equally, the Court now argued, could such situations give rise to unavoidable and extraordinary circumstances relieving the traveller from his obligation to pay.

The Court of Justice thus introduces an element of uncertainty in the assessment of unavoidable and extraordinary circumstances: what level of risk to health and safety is sufficient to trigger those circumstances? After all, many travel destinations have very different levels of safety and health than those at the travellers’ home. In this regard, the Court of Justice falls back onto the well-known consumer protection standard of the average traveller who is reasonably well informed and reasonably observant and circumspect. That standard is further influenced by personal circumstances of the traveller, such as infirmness or the fact that a group includes young children. The Package Travel Directive 2015/2302 in general obliges tour operators to bear in mind those personal factors (see recital 25). While a mere subjective assessment of fear is not sufficient (Tez Tour para. 69), the determination as to the existence of unavoidable and extraordinary circumstances cannot be left to the tour operator (para. 70) and necessarily involves an ex-ante assessment on the likelihood of the significant effect on the package (paras. 63 to 65).

Read together with the earlier judgment in FTI Touristik C-396/21, it further transpires that this applies even where the level of danger to health and safety at home is the same as at the destination. The general risk of life that there are far reaching restrictions of civil life due to a global crisis is thus shifted to the tour operator: the traveller contracted for relaxation and peace of mind, which were not delivered.

In FTI Touristik C-396/21 the traveller had requested a price-reduction according to Article 13 (6) of the Package Travel Directive 2015/2302 only, a further reaching demand for compensation in turn would be subject to a defence of unavoidable and extraordinary circumstances under Article 14(3)(c). Those circumstances that constitute the lack of conformity of the travel package, and the likelihood of which entitles the passenger to withdraw from the contract without a termination fee, at the same time are a shield of liability for the tour operator. They are in that sense akin to force majeure, an external event that discharges the liability of both parties, apart from the operator’s obligation to (partially) reduce the price.

And yet they are different as the personal circumstances of an average traveller who is reasonably well informed and reasonably observant and circumspect serve to discharge the traveller’s liability to pay the price. That standard

cannot be used to shield the operator from liability to pay compensation as the relevant reference point here is that the lack of conformity must be due to unavoidable and extraordinary circumstances. The conformity in turn must be determined by reference to the contractual agreement of the parties, not the circumstances of the average traveller. The similarity to force majeure as objective circumstances therefore ends quite quickly.

In a similar vein to the operator exception under Article 14(3)(c), the Commission has suggested that covidrelated travel restrictions might constitute ‘extraordinary circumstances that could not have been avoided even if all reasonable measures had been taken’ in the sense of Article 5(3) of the Air Passenger Rights Regulation 261/2004 in its Interpretative Guidelines on EU passenger rights regulations in the context of the developing situation with Covid-19. That Regulation does not provide the traveller with a corresponding right to not take flight for health or safety concerns, again highlighting the fact that the various notions of ‘extraordinary circumstances’ in EU legislation do not apply in the same circumstances and are not equivalent to the traditional concept of force majeure.

4. Foreseeability an obstacle

The Court of Justice in Tez Tour states that an ‘existing situation cannot by its very nature be classified as “unavoidable”, even if it may have been so before it materialised. Furthermore, a hypothetical situation, if foreseeable, cannot be classified as “extraordinary”.’ (para. 75) and explains that the traveller accepts those risks known at the time of booking (para. 78). In a dynamically evolving situation like the global pandemic, changes might give rise to new situation, which might then constitute extraordinary and unavoidable circumstances. That determination is one of fact and must be assessed by the referring court. In this respect it is regrettable that the Court of Justice does not provide further guidance whether a mere quantitative change might be sufficient to exclude foreseeability or whether a qualitative change, i.e. a change in the nature of the circumstances, is required. National courts might answer this question differently.

5. Place of the circumstances

Although not strictly relevant for this dispute (as a global pandemic affects any place) and hence answering a slightly rephrased question in order to provide a useful answer (paras. 87 and 88), the Court of Justice determined that extraordinary and unavoidable circumstances occurring at the place of destination or its immediate vicinity that significantly affect the performance of the package or the carriage of passengers might also be events at the place of departure or at the various places connected to the journey. While this interpretation might appear contra legem, it is unquestionably needed to give effect to the intended purpose of the provision. One might imagine a situation of conflict or boycott in which transportation from the place of departure to the destination, or a transfer point, becomes impossible or illegal. In that case, no relevant events have occurred at the destination and yet the significant effect on the package is beyond doubt.

6. Summary

The judgment raises almost as many questions as it answers, in particular concerning the standard of assessment what constitutes extraordinary and unavoidable circumstances for the traveller and for the tour operator. Here a greater harmony between the involved parties, but also across several EU instruments, would be desirable. The risk perception of the average traveller is still a very wide term that invites divergent interpretation by national courts. Further, the court could have provided clearer guidance as to the question of foreseeability. The clear statement that foreseeability means acceptance is modified for evolving situations without indication whether an evolution has to affect the substance or only the intensity of the danger. Litigation in this area is likely to continue to occupy the courts.

Christopher Bisping is Professor of Comparative Private Law, in particular Consumer Law at Bucerius Law School Hamburg, and Dean of the Master of Law and Business Programme (MLB/LLM).

SUGGESTED CITATION: Bisping, C.; “Package travel and covid disruption – unavoidable and extraordinary circumstances defined? (Case C-299/22 Tez Tour)”, EU Law Live, 19/03/2024, https://eulawlive.com/op-ed-package-travel-and-covid-disruption-unavoidable-and-extraordinary-circumstancesdefined-case-c-299-22-tez-tour-by-christopher-bisping/

New developments concerning Article 58a of the Statute of the Court of Justice of the European Union

Luca De Lucia

1. Introduction

Under Article 58a of the Statute of the Court of Justice, ‘An appeal brought against a decision of the General Court concerning a decision of an independent board of appeal of one of the following offices and agencies of the Union shall not proceed unless the Court of Justice first decides that it should be allowed to do so (a) the European Union Intellectual Property Office [EUIPO]; (b) the Community Plant Variety Office [CPVO]; (c) the European Chemicals Agency [ECHA]; (d) the European Union Aviation Safety Agency [EASA]’. In these cases, ‘An appeal shall be allowed to proceed … where it raises an issue that is significant with respect to the unity, consistency or development of Union law’.

Article 58a was introduced into the Statute in 2019 to reduce the workload of the Court of Justice, based on the following reasoning: Since certain decisions of a number of agencies are subject to a double review – by the Board of Appeal (BoA) and by the General Court (GC) – it is therefore possible to limit appeals to the Court of Justice to cases where legal issues of particular importance are at stake.

There have now been two new developments in relation to this provision. First, the Court of Justice has just ruled on the first two cases in which the appeal was allowed to proceed. Some statements issued by Advocate General Ćapeta in one of these cases are discussed below (see Section 2). Second, a regulation extending the scope of Article 58a to eight more agencies was approved on 19 March. This amendment also raises some concerns (see Section 3).

The underlying argument is that Article 58a deals almost exclusively with trademark and design cases; ignoring this fact may lead to the misinterpretation of the provision and to legislative activity that is currently unnecessary (if not harmful).

2. First application of Article 58a

The Court of Justice applied Article 58a in its strictest sense. Judicial statistics show that in the period between 2019 to 2022, two appeals were lodged with the Court against decisions of the GC concerning decisions of the BoA of the CPVO, neither of which were allowed, whereas 175 appeals were lodged against decisions of the GC concerning decisions of BoAs of the EUIPO, three of which were allowed. In addition, a search of the Court’s database shows that a further four appeals were allowed in 2023. In total, therefore, seven appeals have been allowed to proceed so far, all of them concerning the EUIPO (four of which were brought by the Agency itself).

Two GC judgments concerning two decisions of ECHA Board of Appeal (C-78/24 P, Cruelty Free Europe v ECHA and C-79/24 P, Cruelty Free Europe v ECHA) were also appealed in 2024, but the Court of Justice has not yet ruled on the admissibility of the appeals.

Recently, the Court of Justice ruled in favour of the appellants in the first two cases where the appeal was allowed. The first case concerned the independence of the lawyer representing a party in proceedings before the GC (C580/22 P, bonnanwalt v EUIPO), and the second concerned the effects of the Paris Convention for the Protection of Industrial Property on EU design law (C-382/21 P, EUIPO v The KaiKai Company Jaeger Wichmann). This second case is of particular interest with regard to the particular procedural issues here examined, not so much because of the judgment of the Court of Justice, but because of some remarks made by Advocate General Ćapeta on Article 58a.

For the Advocate General, Article 58a is comparable to the ‘certiorari’ of the United States Supreme Court (point 34). It highlights ‘the function of the Court of Justice as the Supreme and Constitutional Court of the European Union’, with the consequence of engaging the Court ‘in “constitutional-type” cases of importance for the EU, involving the interpretation of basic constitutional principles of EU law and the horizontal and vertical division of competences’ (point 37). It is an elegant but emphatic statement.

In fact, the appeal filtering mechanism is very limited in scope, as it (currently) concerns only four agencies, of which only one (the EUIPO) is involved in litigation of any quantitative significance. It should also be borne in mind that, according to case law, the EU agencies can only be given clearly defined executive powers. These circumstances do not preclude, but do greatly reduce, the possibility that crucial aspects of EU law may come into play in disputes decided by the BoA and subsequently by the GC.

With the exception of the judgments in C-382/21 P and C-580/22 P, the issues in the appeals that have been allowed to proceed concern: the effects of the withdrawal of the United Kingdom from the Union on EU trademark regulation (C-801/21 P, EUIPO v Indo European Foods, C-751/22 P Shopify v EUIPO, C-337/22 P, EUIPO v Nowhere); the limits of the jurisdiction of the GC in relation to the decisions of the EUIPO BoAs (C93/23 P, EUIPO v Neoperl); the regularity of the representation of a party before the GC (C-776/22 P, Studio Legale Ughi e Nunziante v EUIPO).

Although these issues are sectoral, they are undoubtedly relevant to the coherence and development of EU law. However, it is not so clear if or how they affect ‘the basic constitutional principles of EU law’.

In short, if one really has to speak of a ‘European Union certiorari’ (point 36), it is more appropriate to speak of a ‘European Union certiorari for trade marks and designs’. The brief analysis of the number of cases outlined above supports this statement.

3. The new amendment of Article 58a

In November 2022, the Court of Justice requested that the Council and the European Parliament amend Statute of the Court in accordance with Article 281 TFEU. The request concerned: a) the transfer of jurisdiction to the GC to hear and determine questions referred for a preliminary ruling in certain areas; b) the extension of the scope of Article 58a of the Statute to decisions of the GC which, in addition to the performance of a contract concluded by or on behalf of the Union and containing an arbitration clause, concern decisions of the BoAs of the European Union Aviation Safety Agency, the European Union Agency for the Cooperation of Energy Regulators (ACER), the Single Resolution Board, the European Banking Authority, the European Securities and Markets Authority, the European Insurance and Occupational Pensions Authority and the European Union Railway Agency.

The European Parliament adopted its position at a first reading on 27 February of this year and the General Affairs Council approved the text on the 19 March.

When Article 58a was inserted into the Statute in 2019, some observers (e.g., De Lucia, ELR 2019, 813 f.) considered it to be the result of an oversight, as it only referred to four agencies with BoAs and overlooked the others. In the 2022 proposal, the Court of Justice argues that there is no reason not to include all agencies with BoAs in the list contained in Article 58a since this would ensure greater consistency in the EU legal system. The amendment to the Statute that has just been passed would therefore correct this omission.

However, a more thoughtful approach calls for caution. To begin with, it should be remembered that the aim of Article 58a was to reduce the workload of the Court and was justified by the significant number of appeals in these areas dismissed as manifestly inadmissible or manifestly unfounded (recital 4, Regulation 2019/629). However, this finding only concerned OHIM/EUIPO, as the problem did not arise for the other three agencies (there were no more than five appeals to the Court of Justice against GC judgments concerning BoAs between 2009 and 2019). Consequently, there was no need to limit the possibility of appeal to the Court of Justice for agencies other than the EUIPO. The same reasoning applies to the eight agencies that have now been added to the Article 58a list: with the exception of the ACER (C-46/21 P, ACER v Aquind and C-282/23 P, Polskie sieci elektroenergetyczne and Others v ACER), no decisions of the GC concerning BoAs of these agencies has been appealed to the Court of Justice since 2019.

This fact provides two insights. First, it shows that expanding the list of BoAs contained in Art. 58a is of no practical use at present. Second, the fact that no appeals have been lodged against decisions of the GC concerning the BoAs of agencies not now listed in Article 58a shows that the GC has an essentially creative role to play in the areas of competence of these agencies, since it is called on to interpret the relevant provisions for the first time. It therefore seems important –at least initially– to allow interested parties to appeal to the Court without too many obstacles: this would allow a more considered consolidation of legal principles in specific areas. In other words, it is one thing to limit the possibility of appealing to the Court of Justice in trademark and design disputes, where there is now a very large body of case law. However, it is quite another to provide for such a limitation in fields where there is no case law and where many aspects are yet to be developed.

4. Concluding remarks

Article 58a of the Statute concerns almost exclusively disputes with the EUIPO. This is important for the understanding of the real meaning of this provision and should well be taken into account by the legislator who, rather than acting for the ‘sake of symmetry’, should avoid unnecessary restrictions to the full protection of rights.

Luca De Lucia is Professor of Italian and European Administrative Law at the University of Salerno.

SUGGESTED CITATION: De Lucia, L.; “New developments concerning Article 58a of the Statute of the Court of Justice of the European Union”, EU Law Live, 21/03/2023, https://eulawlive.com/op-ed-new-developments-concerning-article-58a-of-the-statute-of-the-court-of-justice-of-the-europeanunion-by-luca-de-lucia/

To

identify or not to identify, that’s the

discrimination: Case

C-491/21, Direcţia pentru Evidenţa Persoanelor şi Administrarea Bazelor de Date

Miguel del Moral Sánchez

Introduction

Last 22 February 2024, the Court of Justice delivered its Judgement in Case Direcţia pentru Evidenţa Persoanelor şi Administrarea Bazelor de Date (C-491/21), concerning the compatibility with EU law of the Romanian legislation regulating the issuing of identity cards to their own nationals. This is a new and recent example of the established case-law of the Court concerning the possibility for Union citizens to rely on their rights stemming from Arts. 20 and 21(1) TFEU, even against their own Member State (‘MS’). It is also one of the rare examples where the Court of Justice has ruled on a question relating to the issuing of identity cards, a competence exclusive to the Member States which must be exercised, according to the Court, in compliance with EU law.

Facts of the case

Under Romanian law, all nationals of this MS have the right to be issued with a passport. However, only those domiciled in Romania are issued with an identity card with the value of a travel document within the EU. Romanian citizens residing in another MS are obliged to return their identity card, keeping only their passport, although they can be provided with a temporary card that does not serve as a travel document if they temporarily reside in Romania.

The applicant of this case, ‘WA’, was a Romanian national domiciled in France whose professional activities took place in both countries. As such, he was provided with a Romanian passport and a temporary identity card. WA applied to the Romanian authorities for the issuing of a full-fledged ID card, which was rejected. WA appealed this rejection, which was dismissed by the Court of Appeal of Bucharest. The applicant brought a new appeal before the High Court of Cassation and Justice, which decided to refer a question to the Court of Justice for a preliminary ruling.

The question concerned the compatibility of the Romanian legislation determining the non-issuing of identity cards with the value of a travel document within the EU to their own nationals domiciled in a different MS with Articles 26(2) TFEU, 20, 21(1) and 45(1) of the Charter, and 4-6 of Directive 2004/38.

Analysis

The Court dedicated the first paragraph of its analysis (para. 23) to setting the ground for the reformulation of the preliminary question referred to by the Romanian court. As pointed out by Allan Rosas, this is done by the Court to increase the utility of its answer and can lead to interpreting EU law provisions that have not been raised by the referring national court (Šadl and Wallerman), as is the case in the present judgement. Introduced by the very typical formula of ‘the referring court asks, in essence, (...)’ (para. 28), the Court of Justice has analysed the compatibility of the Romanian legislation with Articles 21 TFEU and 45 of the Charter, together with Article 4(3) of Directive 2004/38, leaving aside, as suggested by AG Szpunar in his Opinion (point 31), Articles 26(2) TFEU and 20 and 21(1) of the Charter.

The main disputes of this case revolved around two issues: first, whether the difference in treatment between Romanian nationals domiciled in this country and those domiciled in another MS accounts for a restriction contrary to Articles 21 TFEU, 45 of the Charter, and 4(3) of Directive 2004/38. Second, if the answer to the first question is in the affirmative, whether this restriction is justified.

MS are, in principle, competent in matters pertaining to the provision of identity cards. However, it is settled caselaw that national rules concerning matters falling under the competence of MS must still comply with EU law in situations that are covered by the latter (see, for example, case Rottman (C-135/08), para. 41, and the case-law cited). In addition, and despite the absence of abundant case-law on the specific issue of identity cards, the Court has already held in cases like Crossing of borders in a pleasure boat (C-35/20, para. 53), or Pancharevo (C-490/20, paras. 43-45), that MS are bound by EU law when it comes to the exercise of this competence. This conclusion is reached by the Court (para. 38) and the AG (para. 34) in the present case.

In this context, Article 4(3) of Directive 2004/38 states that MS shall issue to their own nationals ‘an identity card or (emphasis added) passport stating their nationality’. It is not disputed that Article 4(3) allows MS to choose between one or the other, or both, travel documents. Indeed, even if the vast majority of MS issue both ID cards and passports, some EU countries (i.e., Ireland and Denmark) only provide their citizens with the latter. Therefore, it could seem, at first glance, that the situation in this case only concerns the exercise by Romania of their choice between one travel document or the other, a choice that is, in the words of AG Szpunar, ‘quite simply legitimate’ (para. 51).

Nevertheless, this choice cannot be carried out in a manner that is contrary to EU law, in particular, by discriminating among their own nationals. In the present case, the Romanian legislation did not establish either the passport or the ID card as a common identification document for all Romanian citizens but made the domicile the determining criterion for receiving one or both documents. The difference in treatment being clear, the question is therefore whether Romanian nationals who have exercised their freedom of movement within the EU are being treated less favourably. The Court (para. 40) and the AG (para. 41) argue that the requirement of retention of domicile in Romania in order for a Romanian citizen to obtain both documents is more easily met by those

citizens who have not exercised their freedom of movement. In this context, it is settled case-law that the free movement rights provided by EU law ‘cannot be fully effective’ if MS establish provisions of national law creating obstacles that are likely to dissuade Union citizens from exercising such freedom (see, inter alia, case Martens, C-359/13, para. 26).

WA could not leave Romania for 12 days given that his passport was at a third State embassy for the obtention of a visa and, although the Romanian Government put forward the argument that, in situations like these, a temporary passport is issued within three working days, it was argued by the applicant that this time limit is, during busy periods, not respected. Regardless of whether this situation occurs regularly, Romanian citizens domiciled in other Member States are clearly ‘subject to more onerous administrative burdens’ (para. 46 of the judgement), which constitutes a restriction of their right to free movement as enshrined in Art. 21(1) TFEU and 45(1) of the Charter.

Restrictions to Article 21(1) TFEU and 45(1) of the Charter can be justified if they are based on ‘objective considerations of public interest independent of the nationality’ and if they are proportionate (see, inter alia, TasHagen, C-192/05, para. 33). The public interest put forward by the Romanian Government is, essentially, that it could not certify the accuracy of a person’s domicile in another MS, which would become a disproportionate or impossible administrative burden. However, as pointed out by both the AG (para. 65) and the Court (para. 58), ‘considerations of administrative nature cannot justify derogation by a Member State from the rules of EU law’, leading to the conclusion that the measure is not justified.

Interestingly, AG Szpunar continues to analyse the proportionality of the Romanian legislation (in case the Court would have recognised the existence of a public policy interest). The AG studies the appropriateness and necessity of the measure (paras. 69-75) but does not take into account the proportionality sensu stricto (i.e., whether the disadvantages of the measure are not disproportionate). Although the Court does not usually analyse this proportionality step regarding free movement, as pointed out by AG Emiliou in his Opinion in Nordic Info (C-128/22, para. 120) it is often present in the case-law regarding national rules that limit fundamental rights enshrined in the Charter (see, for example, Sky Österreich, C-283/11, para. 50 and Centraal Israëlitisch Consistorie van België and Others, C-336/19, para. 64). And even if both AG Szpunar and the Court recalled that the content of Article 45(1) of the Charter corresponds to the one of Article 20 TFEU (see point 32 of the Opinion and para. 49 of the Judgement), restrictions on the free movement of persons are, by their very nature, of particular concern from a fundamental rights point of view since their violation usually entails other violations of related rights, such as the right to private and family life (see point 121 of AG Emiliou’s cited Opinion).

Conclusion

This case shows that questions of Union citizenship are still present in the case-law of the Court, and that it is increasingly closer to an analysis of fundamental rights than of freedom of movement. It is also clear that the Court attaches importance to ensuring that the competences retained by MS in this area, including those in relation to identity cards, are exercised in compliance with EU law.

Miguel del Moral Sánchez is Academic Assistant at the Law Department of the College of Europe.

SUGGESTED CITATION: del Moral Sánchez, M.; “To identify or not to identify, that’s the discrimination: Case C-491/21, Direcţia pentru Evidenţa Persoanelor şi Administrarea Bazelor de Date”, EU Law Live, 20/03/2024, https://eulawlive.com/op-ed-to-identify-or-not-to-identify-thats-thediscrimination-case-c-491-21-directia-pentru-evidenta-persoanelor-si-administrarea-bazelor-de-date-by-miguel-del-moral-sanchez/

Cars, Consumers, & the Court: considering leasing agreements in Cases C-38/21, C-47/21, & C-232/21

Elijah Granet

Several Germans want to lease a car, and then decide they want to withdraw from the contract. This scenario is so commonplace, that it is bemusing to find it creates such a mess of EU consumer law. In a series of joined cases C-38/21, C-47/21, and C-232/21, the Court of Justice had to consider a web of interrelated questions on just exactly what, from a legal perspective, happens in those dealerships.

In each of the joined cases, a consumer arrived in a dealership, where the dealer negotiated a lease agreement, which were not to result in purchase, and which, in one case, were mileage based (the consumer would pay an additional penalty if she drove more than a set number of miles). Dealers, however, are not banks and can’t lend money. Thus, the facts involve the dealer walking away from the consumer to pass the proposed terms onto a bank, who then approved and became a party to the lease contract with the consumer.

The web of differing facts makes it more convenient to refer to the jumbled resulting litigation, which involved different semi-overlapping sets of questions referred on by the German courts (one of which was withdrawn after settlement), by their issues rather than recite the sorry facts of each lease. Clarity was not helped by the fact some of the many questions referred by the eager German court were hypothetical and thus inadmissible (see paras. 115–125).

First, there was how to classify the mileage-based leasing contracts (with no obligation of purchase). What legislative ‘bucket’ did they fall into? There were three options: Directive 2008/48 (consumer credit agreements), Directive 2002/65 (distance marketing of consumer financial services), and Directive 2011/83 (the consumer rights directive). Directive 2008/48 was ruled out, because, although leasing is obviously a form of credit, that Directive’s scope is limited to those leases which include an obligation to purchase the object of the credit agreement. Directive 2002/65’s concept of ‘financial service’, meanwhile, relates to three relevant categories of agreement: those which provide a ‘service of a banking nature or a ‘of a credit nature’ or ‘insurance, personal pension, investment or payment nature’. As to the former, following Advocate General Collins’s interpretation, the Court interpreted this as referring to services typically offered by retail banks. Consequently, the provision of motor vehicle leasing, as an activity traditionally done by specialty banks associated with car manufacturers, was not covered by Directive 2002/65. Meanwhile, a ‘service of a credit nature’ is not precisely defined by Directive 2002/65, but the plain language of ‘credit’ indicates that it involves some kind of loan or deferred payment to the consumer. As a leasing agreement not involving purchase, it lacks the typical features of a credit agreement, in particular in that it does not allocate the burden of risk (that the car depreciates in value more than the loan of

the acquisition price) to the consumer. This leaves services of an insurance, etc, nature, which the Court ruled out as manifestly inapplicable.

The only ‘bucket’ thus remaining was Directive 2011/83. The leasing agreement was clearly not a financial service, but it might plausibly fall into the general residual category of ‘service contract’, which covers (in Article 2(6)) ‘any contract other than a sales contract under which the trader supplies or undertakes to supply a service to the consumer and the consumer pays or undertakes to pay the price thereof.’ As here, the vehicle was not being sold to the consumer, the rental of the vehicle meant it fell within the definition of a service contract (but not a contract for financial services) for the purposes of Directive 2011/83.

Following on in the web of referred questions, the next question was if the ‘distance contract’ provisions of Directive 2011/83 applied. The requirement (in Article 2(7)) for this contract is deceptively simple: the consumer and the trader must never be simultaneously in the same physical place ‘up to and including the time at which’ the contract is concluded. As here, the dealer, who was included in the category of trader as the agent of the bank (see Article 2(2)), and the consumer and dealer were in the same place, the initial conclusion would be that it was not a distance contract. A teleological reading does not change this conclusion, because the purpose of creating additional protections for distance contracts is to prevent disadvantage where a consumer cannot ask the trader questions to ensure she has all the relevant information (at para. 170). Thus, if the consumer here was told all the relevant information (see Article 6 of Directive 2011/83) in person at a dealership and had the opportunity to ask questions (as it appeared on a prima facie basis), the contract was not a distance contract.

Directive 2011/83 also defines (in Article 2(8)(a)) an ‘off-premises contract’ as one where a trader concludes a contract with a consumer in a physical place other than the trader’s place of business. However, as traders may act through intermediaries, and following recital 22 of the Directive, a consumer who negotiates a contract with an intermediary at the intermediary’s premises is not engaging in an ‘off-premises’ contract. Once again, a teleological reading of the Directive (see recitals 21 & 37) supports this; the protections for off-premises contracts are intended to protect the consumer against instances of pressuring in places where the consumer cannot reasonably expect to be solicited and is surprised by the offer. The average, reasonably observant and circumspect consumer could be expected to know that a dealer would seek to negotiate and conclude a contract on behalf of the automaker’s bank. Thus, an ‘off-premises’ contract was unlikely to be the case in such circumstances.

However, in the event (made unlikely by the foregoing answers) where the referring court did conclude that a leasing agreement was a distance or off-premises contract, it was not clear that the right of withdrawal would apply to such contracts. This was because Article (16)(l) of Directive 2011/83 exempts vehicle rental contracts for a specified period of time. Granting that derogations from rules of consumer protection must be interpreted narrowly, the Court nonetheless saw no evidence the EU legislature meant the reference to specific periods to refer only to short-term periods. A teleological reading showed that the purpose of this derogation was to protect service providers for categories of service which were, by their nature, vulnerable to financial consequences from cancellation sometime after the contract was concluded. Here, if the consumer leased a car with specific

customisation, then exercised the right of withdrawal, the trader might not be able to find another consumer with such specific tastes and could, consequently, suffer disproportionate financial loss. The Court reasoned by analogy from the exception for custom made goods in Article 16(l) that the legislature desired to recognize by the derogations in that article the unique vulnerability of traders to withdrawal from contracts involving customisation. Thus, even where facts did involve a distance or off-premises contract, the derogation in Article 16(l) exempted non-purchase leases from the right of withdrawal.

The final sets of questions considered by the Court dealt with the clarity requirements of Directive 2008/48. First, did the German Introductory Law to the Civil Code (EBGB)’s provisions, which provide a presumption that a trader who directs a consumer to statutory provisions setting out the right of withdrawal has adequately informed the consumer of such right, should be disapplied as incompatible with EU law? Prior precedent established that such oblique references in credit agreements were prohibited by Directive 2008/48 due to a lack of clarity. However, to disapply the provisions here, on the basis of EU law, would create an obligation on a private party (the traders) solely from the directive. It is trite EU law that directives cannot create such obligations. Thus, the remedy, should the referring court find no provision of German law that allowed disapplying the EBGB provisions, would be for consumers disadvantaged by non-conforming national law to seek Francovich damages. The Court also interpreted (at para. 240) Directive 2008/48 as requiring that the interest paid where a consumer exercised a right of withdrawal can never exceed the amount of the borrowing rate specified in the contract and is only applicable where sufficiently clear and concise and non-misleading information is given. The Court further held (at para. 246) that the Directive required all the ‘essential information’ for extra-curial complaint procedures to be provided to the consumer, and (at para. 256) that the method for calculating compensation due in the event of early repayment of a loan must be clearly given or alternatively the consumer must have the ability to infer the maximum payable in the event of early repayment. In a similar vein, the Court concluded that variable methods for calculating interest in late payment cases must be set out clearly such that a consumer who is not knowledgeable about the financial field can comprehend them. The Court further held (at para. 267) that the withdrawal period began to run in the case of incorrect information being provided only where the incorrect information did not affect the consumer’s assessment of her rights and obligations nor deprived her of the ability to exercise her rights. The Court also (at paras. 292 & 299) that creditors could not plead allegedly abusive behaviour of a consumer exercising the right of withdrawal nor national rules of claims being time barred to resist withdrawal. Finally, the Court held (at para. 307) that Directive 2008/48 precluded national legislation requiring that a consumer must return goods when exercising a right of withdrawal, if such rules also do not require a creditor disputing the withdrawal to repay the consumer.

Given how common leasing agreements are, as well as the age of the applicable legislation, it is remarkable it has taken until these joined cases for the Court to clarify these points of law. Aside from the final sundry decisions on the applicability of Directive 2008/48, the Court generally found strongly in favour of car dealers and financers, rather than consumers. This may seem initially surprising, given the purpose of the EU legislature in enacting so much consumer protection legislation, and the high risk to the consumer from expensive leasing agreements. Yet,

on closer inspection, the Court steered the right path in limiting the scope of the right of withdrawal. Distance and off-premises contracts create situations where a consumer is deprived of the ability to seek relevant information by asking questions, and for this reason, the legislature has decided to give special protections to consumers in those situations. Here, the disaffected German consumers wanted to twist the language of the Directive to apply these special protections to contracts concluded on premises and negotiated with a human being acting as intermediary of the financing bank. If they had succeeded, almost any contract involving an intermediary acting for an offpremises trader could have been subject to the special protections, and the distinction made by the legislature between less and more risky types of consumer contracts would have been rendered worthless.

Furthermore, the consumers’ invitation to read into the derogation for vehicle rental agreements with a defined time an exception for lengthy agreements would have made a mockery of the legislature’s intent. Vehicle rental agreements, including leases, are a unique category of contract where the trader is at risk from disproportionate financial damage, both from abusive withdrawal but even from legitimate withdrawal. The right of withdrawal and other consumer protections are meant to level the playing field between trader and consumer, not to render business impracticable. Moreover, from the perspective of legal certainty, it would be very difficult for national courts to start trying to guess when the magic point occurred whereby a short-term rental became a long-term one. Six months? Twelve? Twenty-four? The Court’s decision to adopt a reading of Article 16(l) to mean precisely what it said—that it applied to the hire of a car for a defined period of time— did not go against the rules for construing derogations narrowly. Any other reading would have been contra legem

As the robust decisions interpreting the provision of information showed, the Court has not abandoned the protection of the consumer. However, consumer protection does not mean that laws should be read so widely as to undermine an entire legitimate and useful market (particularly where the EU legislature’s specifically exempted it), nor that definitions should be twisted to redefine on-premises and in-person contracts as falling into the offpremises and distance categories. Indeed, such interpretations would, in the long term, harm the interest of the consumer, who benefits from being able to hire a new and customised car for a set period of time without taking on the more burdensome obligation to purchase the vehicle. By clarifying the boundaries of consumer protection legislation, the Court made the right call for both traders and consumers.

Elijah Granet is a law postgraduate student at the University of Southern California.

SUGGESTED CITATION: Granet, E.; “Cars, Consumers, & the Court: considering leasing agreements in Cases C-38/21, C-47/21, & C-232/21”, EU Law Live, 22/03/2024, https://eulawlive.com/op-ed-cars-consumers-the-court-considering-leasing-agreements-in-cases-c-38-21-c%e2%80%9147-21c%e2%80%91232-21-by-elijah-granet/

Right to access harmonised standards: Public.Resource.Org and Right to Know v Commission and Others, C-588/21 P

Björn Lundqvist

Should technical standards developed by standard-setting bodies and referred to in European regulations, directives or in European Union (EU) law generally be regarded as ‘law’ that must be accessible to the public? Or could these standards still be private goods, licensed for royalties and, often, only accessible by a few? Many in the standard-setting industry have awaited the Court of Justice ruling on this issue; however in Public.Resource.Org and Right to Know v Commission and Others, C-588/21 P, the Court of Justice leaves more questions regarding the legal status of so-called harmonised standards unanswered than answered.

The case might – at a first glance – be regarded as rather unimportant, but it includes a strike against the procedure for creating unified technical rules for products in the EU. The EU procedure of creating technical standards that abide by the treaty rules of freedom of movement of goods and services, the so-called ‘New Approach’ from the 1980s, is a sui generis intertwined procedure where the EU Commission plays a role, but where the technical standards are de facto drawn up through collaborative self-regulation by firms under the supervision of a European standard-setting body. Some standards can achieve the status ‘harmonised’ through the New Approach, by being included through reference in an EU legal act. The de facto material rule or method to be followed is generally included in the standard, not in the legal act; the legal act is a short document that primarily refers to the technical standard document in question. Indeed, if a firm or individual would like to access the material content, the standard needs to be accessed often under a license and after payment of a royalty fee because standard-setting bodies may create the revenues from licensing the harmonised standards. It is this last leg of the New Approach that was attacked in the Public.Resource.Org case.

In the Public.Resource.Org case, the applicants had approached the Commission and requested access to a harmonised standard under the regulation for public access to public documents (Regulation (EC) No 1049/2001). The Commission refused claiming inter alia that the harmonised standard was covered by copyright held by the standard-setting body that developed the standard. The applicants appealed the decision to the General Court and submitted two pleas in law, firstly, that since the requested harmonised standards formed part of ‘EU law’, they should be accessible freely and without charge, meaning that no exception to the right of access could apply to them. According to the applicants, private rights cannot be granted with respect to a ‘text of the law’, which must be freely accessible and, accordingly, those standards could not be protected by copyright. In support of the first plea, they relied on the earlier James Elliott case. The second plea, the appellants claimed that the Commission had erred in law as regards the absence of identifying an overriding public interest, within the meaning of regulation

for public access to public documents, for accessing the said standard. Granting citizens of the EU access to EU law must be an overriding public interest.

The General Court (Case T-185/19) refused both line of arguments, stating that the Court of Justice in James Elliott Construction held only that a harmonised standard – adopted on the basis of secondary legislation and the references to which have been published in the OJ – forms part of EU law, not the actual content of the standard. The Commission was entitled to find that the standards met the threshold of originality to constitute ‘works’ and that the argument put forward by the applicants that the standards did not meet the requirement of personal intellectual creation was not sufficiently substantiated. Moreover, after a rather lengthy discussion, the General Court stated that the applicants had not shown that on the basis of constitutional principles and rules, there was a requirement for free access, even if the standard formed part of EU law. The applicants were therefore wrong to claim that harmonised standards should be freely accessible.

Interestingly, in a somewhat concurrent case to the General Courts ‘stab’ at the Public.Resource.Org, the Court of Justice in Richter (Case C-160/20) took an important step and stated that harmonised standards could not bind the public if they were not published in their entirety in the OJ, in accordance with how laws are published in the EU. In the Richter case, the Grand Chamber established a fundamental milestone on the legal status and consequences of incorporating standards in EU legislation. After some discussion, the Court of Justice stated clearly that legislative acts can enter into force and accordingly have legal effect only after they have been published. According to the Court, the publication requirement flows from the principle of legal certainty, which requires that EU rules enable those concerned to know precisely the extent of the obligations which are imposed on them. Individuals must be able to ascertain unequivocally what their rights and obligations are. According to the Court of Justice, technical standards determined by a standards body, such as the ISO, and made mandatory in a legislative act, are binding to the public only if they have been published in the OJ. However, the Court put forward one important caveat: Though standards are not binding to the public save if they have been published in their entirety in the OJ, account must be taken of the specific features of the system established by the standardsetting body, which consists of a network of national standards bodies. Therefore, those national bodies are able to grant access, upon request, to the official and authentic version of the standards determined by the standardsetting body. Accordingly, ‘where undertakings have access to the official and authentic version of the standards, those standards and, therefore, the reference made thereto by that provision are binding on them.’ The Richter case gave some indication to the importance the Court of Justice placed on the legal status of harmonised standard and to some extent gave a hint to the outcome in Public.Resource.Org

Public.Resource.Org was appealed by the applicants to the Court of Justice, and they were more successful in their line of argument in reference to the Opinion by the Advocate General. Advocate General Laila Medina took a fundamental different stand than the General Court and concluded that standards cannot be protected by copyright and that there is a public interest to be able to access the material text of the harmonised standards that has be granted the status of ‘EU law’.

The Grand Chamber of the Court of Justice pondered the case for a rather long time before delivering the decision last week, and when it finally arrived, the court only addressed the second claim without mentioning the issue of copyright. The Court of Justice relied on the Advocate General, stating there is an overriding public interest justifying the disclosure of the harmonised standards. The Court of Justice stated, Article 2 TEU provides that the European Union is based on the principle of rule of law, which requires free access to EU law for all natural or legal persons of the European Union, and that individuals must be able to ascertain unequivocally what their rights and obligations are, while citing Stichting. Without using the term ‘delegated’, the Court of Justice made reference to AG Medina discussion and seemed to purport that the Commission and the standard-setting bodies are both involved in a legislative procedure for harmonised standards of which the end result is EU law. The right of access to documents is then ensured under the first subparagraph of Article 15(3) TFEU and enshrined in Article 42 of the Charter.

The Court of Justice thereby grant access – stating that harmonised standards are EU law – without mentioning whether the standard-setting bodies can still claim copyright. The ruling may still suggest that the standardsetting bodies need to change their business model. Members of the standard-setting bodies could pay a fee, while the standards should be free of charge. However, the Public.Resource.Org interestingly also opens up for a business model where the Commission pays the (royalty) fees, or fees for the preparator work conducted by standardsetting bodies, with the right for the Commission to make the harmonised standard available to any comers.

On a grander scale, the Court of Justice clearly finds that the right to access to documents is an important corner stone of the rule of law, while notably, the Court of Justice did not kill off the New Approach. The New Approach is not dead, it needs to be redrafted for future processes to develop new harmonised standards. The difficult issue will be how to handle all the current harmonised standards still in force.

Björn Lundqvist is Professor of EU law with a focus on Competition law Stockholm University

SUGGESTED CITATION: Lundqvist, B.; “Right to access harmonised standards: Public.Resource.Org and Right to Know v Commission and Others, C-588/21 P”, EU Law Live, 20/03/2024, https://eulawlive.com/op-ed-right-to-access-harmonised-standards-public-resource-org-and-right-to-know-vcommission-and-others-c-588-21-p-by-bjorn-lundqvist/

Shared accountability, low compensation: joint and several liability between Europol and a Member State for damages from unlawful data processing (Kočner v Europol , C-755/21 P)

Andrea Parziale

In its judgment delivered on 5th March 2024 in the case Kočner v Europol, the Court of Justice held, among other things, that Europol and a Member State can be jointly and severally liable for damages caused by the unlawful processing of personal data. The Court also condemned Europol to pay the claimant 2,000 euros as compensation for non-material damages.

This Op-Ed first summarises the context of the judgment and its main contents. Secondly, it argues that the possibility for joint and several liability to arise between Europol and a Member State for unlawful data processing can strengthen the protection of the individuals concerned and convey desirable behavioural incentives to data controllers in general. Thirdly, the Op-Ed contends that the Court offers clear indications on the conditions of non-contractual liability but awards only symbolic damages.

The facts, the judgement by the General Court, and the appeal before the Court of Justice

In February 2018, a journalist and his fiancée were murdered in Slovakia. Europol obtained the suspect’s phones and a storage device. Analysis data was provided to Slovak authorities in 2018 and 2019. However, in 2019, information on the suspect was leaked to the press. This included personal conversations and links of the suspect to the infamous ‘Panama papers’ and ‘mafia list’. The suspect sought compensation from Europol for damages caused by unlawful data disclosure and his inclusion in the ‘mafia list’.

In Kočner v Europol ( T-528/20), the General Court dismissed the lawsuit, stating, in particular, that the connection between Europol’s actions and the alleged harm was not proven. This was because it was unclear who had leaked the data, which both Europol and Slovakian authorities had access to. The judgment was appealed to the Court of Justice on six grounds. In particular, the first ground of appeal contested the General Court’s exclusion of joint liability between Europol and Slovakia for damages from unlawful data processing.

The Opinion of the Advocate General

In his Opinion delivered on 15th June 2023, Advocate General Rantos agreed that joint and several liability may, in fact, arise and proposed a reassessment by the General Court. In doing so, AG Rantos emphasised, in particular, the role of Recital 57 of the Europol Regulation 794/2016 –which does mention joint and several liability –in interpreting Article 50 of the Europol Regulation.

Although Recitals are non-binding, Rantos stressed their interpretive significance and their reflection of legislative intent. He also referred to how Member States’ laws somewhat overlap in foreseeing joint and several liability where multiple tortfeasors are involved.

The judgment of the Court of Justice

In its judgment of 5th March 2024, the Court of Justice mostly aligned with the Advocate General’s recommendations and provided some further clarifications. The Court held that, if an Article can be interpreted in different ways, Recitals can provide useful indications on which of the multiple potential interpretations of the Article is the correct one, by clarifying its context and rationale (para. 59). Conversely, Recitals cannot be relied on to interpret an Article in a way that is clearly contrary to its wording (para. 60).

In the case at hand, the literal wording of Article 50 of the Europol Regulation is inconclusive regarding the possibility for joint and several liability to arise between Europol and a Member State (para. 55). However, Recital 57 explicitly states that ‘Europol and the Member State in which the event that gave rise to the damage occurred should therefore be jointly and severally liable’ (para. 57). This is because it may be unclear for the individual concerned whether Europol or a Member State caused the damage they suffered.

This means that the individual concerned is not required to identify which one of the entities involved committed the unlawful processing (para. 79). It is sufficient for the individual to show that unlawful data processing was carried out in the cooperation between Europol and a Member State. After the individual is compensated, the ‘ultimate responsibility’ for that damage will be settled in proceedings involving only Europol and the Member State concerned before the Europol Management Board (para. 79).

While Advocate General Rantos had recommended that the General Court reassess the case, the Court of Justice decided to adjudicate the dispute directly (paras. 111-112). In particular, the Court held that the conditions of the EU non-contractual liability under Article 340 TFEU (i.e., sufficiently serious breach of EU law conferring rights to individuals, damage, and causation) are met. First, there is a sufficiently serious breach of a rule of law intended to confer rights on individuals (para. 118-132). This is because, by requiring Europol and Member States to process data lawfully and securely and to compensate individuals in case of unlawful data processing, the Europol Regulation imposes an implicit obligation to protect individuals from unlawful disclosures of their data. Also, this breach is sufficiently serious because it infringes upon provisions in the Europol Regulation that do not leave Europol and the Member States any discretion regarding their obligation to protect individuals from any unlawful disclosures (para. 129).

Secondly, the appellant suffered actual damage –as the publication of his data in the press violated his right to private life, honour and reputation – and the damage has a causal link to the sufficiently serious breach of EU law – since the unlawful disclosure of the appellant’s data led to their publication in the press (paras. 133-136).

Thus, the Court of Justice condemned Europol to compensate the appellant for 2,000 euros ‘on an equitable basis’ (para. 140). The appellant’s original claim was for 50,000 euros for the disclosure of the transcripts of conversations and photos of intimate nature with his girlfriend. However, the Court decided that a much lower figure was adequate because the appellant failed to establish that the photos had actually been disclosed (para. 138).

Joint and several liability and the (full?) compensation of data protection damages

Building on my comment on the Opinion delivered by the Advocate General on this same case, I believe that the Court of Justice recognising that joint and several liability may arise for unlawful data processing when Europol and Member States cooperate is good news for claimants. As I already argued, joint and several liability allows claimants to obtain the full compensation of their damages from the defendant they prefer. The exact shares of liability are then to be determined in a separate proceeding between the defendants themselves. If these shares cannot be exactly identified, a presumption of equal shares of liability tends to apply to the defendants. This shifts the costs of causal uncertainty from the individual concerned to Europol and the Member State. Thus, to prevent the operation of this presumption, Europol and the Member State are incentivised to regulate and document their collaboration clearly, to establish who does what and who should be responsible for what. In sum, joint and several liability can also contribute to effective data protection accountability.

The judgment also adamantly explains how the conditions of EU non-contractual liability apply to unlawful disclosures of personal data and sets a realistic threshold for individuals to recover damages. In short, whenever EU law requires controllers to process personal data lawfully and securely and to compensate damages for unlawful disclosure, the public disclosure of such data can easily warrant all the elements of Article 340 TFEU for the controllers. This arguably incentivises controllers to do their best to prevent unlawful data disclosures. This is particularly desirable in sensitive policy areas such as cross-border criminal investigations.

Thus, I think that the judgment is, overall, mostly favourable to claimants. However, its favourable attitude does not seem to extend to the level of damages deemed adequate to compensate the claimant fully. Indeed, 2,000 euros in damages arguably look more like symbolic compensation than actual full compensation for the harm suffered by the claimant. While reference to an equitable assessment is customary for non-material (rectius: nonpecuniary) damages, I believe the Court should clarify its own quantification criteria, possibly based on a critical comparative review of the practice across the EU. This would not only strengthen the Court’s awarding decision, but also improve legal certainty and facilitate out-of-court settlements, thus decreasing the social and individual cost of compensation. This is particularly important since we can expect to witness increasing numbers of actions for the compensation of non-material (rectius: non-pecuniary) damages in data protection.

Andrea Parziale is an Assistant Professor of Health Law at Maastricht University (The Netherlands) and an Adjunct Professor of Markets, Regulations and Law at LUISS Guido Carli University (Rome, Italy). He authored the monograph

The Law of Off-label Uses of Medicines: Regulation and Litigation in the EU, UK and USA

SUGGESTED CITATION: Parziale, A.; “Shared accountability, low compensation: joint and several liability between Europol and a Member State for damages from unlawful data processing (Kočner v Europol , C-755/21 P)”, EU Law Live, 19/03/2024, https://eulawlive.com/op-ed-shared-accountabilitylow-compensation-joint-and-several-liability-between-europol-and-a-member-state-for-damages-from-unlawful-data-processing-kocner-v-europolc%e2%80%91755-21-p/

When does a slaughterhouse

require

a permit under the Industrial Emissions Directive? (Moesgaard Meat 2012, C-311/22)

Lolke Braaksma and Jonah van der Werf

Introduction

On 22 February 2022, the Court of Justice clarified in Moesgaard Meat (C-311/22) how to assess whether a slaughterhouse meets the criteria of having a ‘carcass production capacity greater than 50 tonnes per day’ and must therefore hold a permit under the Industrial Emissions Directive

The facts

Surprisingly, the request for this preliminary ruling arose within the context of criminal proceedings. Moesgaard Meat A/S, a pig slaughterhouse, and its managing director were prosecuted by the Public Prosecutor’s Office of Denmark (Anklagemyndigheden) for operating this slaughterhouse for two years without a permit. This permit is required under the Danish law that transposes the Industrial Emissions Directive for the operation of a slaughterhouse with a ‘carcass production capacity greater than 50 tonnes per day’. The violation of operating a slaughterhouse without a permit can result, according to Danish law, in imprisonment for up to two years if the breach has caused environmental harm.

The judgment and commentary

The case before the Court of Justice revolves around three questions that must be answered to ascertain the necessity of a permit under the Industrial Emissions Directive. The answers to these questions are crucial to interpret the Danish provisions that are used to prosecute Moesgaard Meat.

The first question is how the carcasses weight should be determined: by reference to the weight of the animals immediately after they are killed (the ‘raw material’), or by reference to the weight after exsanguination and evisceration and after removal of the tongue, bristles, hooves, genital organs, flare fat, kidneys and diaphragm (the ‘end product’). In its ruling, the Court uses various interpretation methods to determine what is meant by this concept as the Industrial Emissions Directive itself does not define it. Ultimately, based on a grammatical and systematic interpretation comparing various translations of the Directive and other relevant EU acts (in particular Regulation (EU) No 1308/2013), the Court concludes that the weight to be considered is that of the end product.

The second question is whether the calculation of the production of carcasses per day should exclusively focus on the days of slaughter or if the calculation should also include days involving other activities related to slaughter. Typically, the evaluation of a slaughterhouse’s capacity – to determine whether a permit is required under the

Industrial Emissions Directive – must be conducted ex ante. Since the daily carcass production capacity was not adequately assessed beforehand and sufficient data for the actual daily carcass production of Moesgaard Meat is lacking, the average daily carcass production in this instance is being calculated based on monthly production volumes. In that case, however, the Court rules that the calculation of average daily production must also include those days when other steps in the carcass production are carried out. In the case of Moesgaard Meat that implies the calculation should take into account Saturdays and the Sundays.

The final question is whether a slaughterhouse’s production volume should be the decisive factor in calculating the production capacity, particularly when the actual production volume exceeds the installation’s initial capacity due to illegal measures. The ‘production capacity’ of a slaughterhouse usually refers to the quantity of carcasses that the slaughterhouse is capable of producing, which is typically assessed ex ante based on the physical, technical and legal constraints. As stated, in the case of Moesgaard Meat, an adequate ex ante assessment of the slaughterhouse’s capacity was not conducted. Data, however, shows the slaughterhouse has been producing quantities of carcasses exceeding the threshold listed in the Industrial Emissions Directive. This fact alone, according to the Court, must lead to the conclusion the production in question took place in disregard of the requirement to hold a permit. The argument presented by Moesgaard Meat that the actual production volume should not be considered when calculating the production capacity does not succeed.

Based on the clarity that is provided by the Court of Justice in this ruling regarding the meaning of ‘carcass production capacity greater than 50 tonnes per day’, it seems to be primarily a matter of calculating the weight of the carcasses per day to determine whether the criminal sanctions imposed to Moesgaard Meat can be upheld by the Danish court.

L.S. (Lolke) Braaksma, LL.M. is assistant professor at the University of Groningen.

J.L. (Jonah) van der Werf, LL.M. is lecturer at the University of Groningen.

SUGGESTED CITATION: Braaksma, L. and van der Werf, J.; “When does a slaughterhouse require a permit under the Industrial Emissions Directive? (Moesgaard Meat 2012, C-311/22)”, EU Law Live, 20/03/2024, https://eulawlive.com/analysis-when-does-a-slaughterhouse-require-a-permit-underthe-industrial-emissions-directive-moesgaard-meat-2012-c-311-22-by-lolke-braaksma-and-jonah-van-der-werf/

The General Court confirms that the financing measures for the construction and operation of a 19 km tunnel between Denmark and Germany constitute State aid compatible with the internal market (Cases T-7/19, T-364/20 and T-390-20)

Alma Dangy

On 28 February 2024, the General Court handed down three judgments concerning the financing of the Fehmarn Strait fixed link project between Denmark and Germany, consisting of a 19 km tunnel under the Baltic Sea between Denmark and Germany, including a railway line and a motorway. These rulings refer to Scandlines Danmark and Scandlines Deutschland v Commission ( T-7/19), Denmark v Commission ( T-364/20) and Scandlines Danmark and Scandlines Deutschland v Commission ( T-390-20). In those judgements, the General Court confirmed that the financing measures –such as capital injections and State guarantees– in favour of Femern S/A (the public entity in charge of the project) constitute State aid and that the fixed link project between Denmark and Germany was of common European interest, making the financing measures compatible with the internal market.

The Commission’s Decision

Following two almost identical judgments ( T-631/15 and T-630/15), the General Court ruled that the Commission had failed to initiate a formal investigation procedure under Article 108(2) TFEU due to serious difficulties, which led the Commission to conclude, after initiating that procedure, that the financial support measures granted to Femern S/A by Denmark constituted State aid but were compatible with the internal market. The Commission’s decision was therefore the subject of three appeals.

In support of its action in Case T-364/20, the Kingdom of Denmark put forward two pleas in law, alleging, first, that the Commission wrongly found that the financing of Femern S/A constituted State aid within the meaning of Article 107(1) TFEU and, second, that the Commission committed an error of assessment in finding that Femern S/A carried on an economic activity in competition with third parties before the fixed link was brought into service. The General Court rejected the action. In particular, it found that the selective advantage granted to Femern S/A, which carries on an economic activity, strengthened its position on the market for transport services for the Fehmarn Belt crossing between Rødby and Puttgarden in relation to undertakings already present on that market, in particular in relation to the ferry operator. Consequently, the financing granted to Fehmarn affected trade between Member States.

In support of its action in Case T-390/20, Scandlines Danmark and Scandlines Deutschland, which operate maritime links between Germany and Denmark, sought annulment of the Commission’s decision which

found that the support measures granted by Denmark to the public undertaking Femern S/A for the planning, construction and operation of a fixed rail-road link across the Fehmarn Strait constituted State aid compatible with the internal market. The General Court dismissed the action in its entirety. According to the General Court, the Commission was entitled to find that the Fixed Link project is of common European interest, inter alia because that project makes a significant and concrete contribution to the achievement of the European Union’s transport policy objectives and broader EU objectives, and that it will improve the connection between the Nordic countries and central Europe. The General Court also found that no evidence had been adduced to call into question the finding that the Fixed Link project was based on the principle that it should be prepared, constructed and operated in such a way as to prevent adverse effects on nature and the environment.

Lastly, in Case T-7/19, Scandlines Danmark and Scandlines Deutschland brought an action against the decision of 28 September 2018 in which the Commission concluded that the measures at issue did not constitute unlawful aid which was in any event compatible with the internal market. In its judgment, the General Court noted that the contested decision concerning the measures granted in favour of Femern S/A was withdrawn after the action was brought, following the adoption of a subsequent decision on 14 June 2019. Consequently, the General Court considered that it was no longer necessary to rule on the application to annul that part of the decision. As regards the other aspects of the action, the General Court dismissed them all.

The recent General Court judgments on the financing of the Fehmarn Strait fixed link project clarified several key points. They confirmed that the financial support provided to Femern S/A constitutes State aid under EU law, yet it’s deemed compatible with the internal market, emphasising the project’s alignment with common European interests. Despite procedural challenges, the Court upheld the Commission’s findings, highlighting the project’s significance in advancing EU transport objectives and environmental concerns.

Furthermore, the General Court dismissed appeals from maritime operators contesting the Commission’s decision on the project’s State aid compatibility. These rulings affirm the legality of the financing arrangements, reinforcing the project’s role in promoting European integration and facilitating cross-border transportation.

Alma Dangy is an associate working for a law firm in Brussels and has an LLM from the College of Europe.

SUGGESTED CITATION: Dangy, A.; “The General Court confirms that the financing measures for the construction and operation of a 19 km tunnel between Denmark and Germany constitute State aid compatible with the internal market (Cases T-7/19, T-364/20 and T-390-20)”, EU Law Live, 18/03/2024, https://eulawlive.com/analysis-the-general-court-confirms-that-the-financing-measures-for-the-construction-and-operation-of-a-19-kmtunnel-between-denmark-and-germany-constitute-state-aid-compatible-with-the-inte/

Lost in translation? Adjusting exported survivor’s pensions to the cost of living of the country of residence, on the basis of the EU’s Association Agreement with Algeria (Case C-549/22)

Nikos Parthenopoulos

On the 29th of February the Court of Justice rendered its judgement in the case of X v Raad van bestuur van de Sociale verzekeringsbank, C-549/22. The case dealt with the issue of whether a provision in the EC-Algeria Association Agreement was capable of warranting direct effect so that an individual can rely upon it and if so, whether the same provision allowed the Netherlands to adjust (downwards) the level of a survivor’s pension when exported to Algeria.

The facts of the case

X, resident in Algeria, was entitled to a Dutch survivor’s pension on the basis of her husband’s (past) work in the Netherlands. However, by decision of the competent Dutch authority (the SVB) the amount of the pension was reduced when exported to Algeria, corresponding to 40% of the level of the benefit she would have been entitled to had she been resident in the Netherlands. The downwards adjustment upon export was conducted by the Netherlands to reflect the lower cost of living in the country of residence of X, Algeria. This decision by the Dutch authorities was challenged by X, on the basis of Article 68(4) of the EC-Algeria Association Agreement, which stipulates that ‘workers […] shall be able to transfer freely to Algeria, at the rates applied by virtue of the legislation of the debtor Member State […], any pensions or annuities in respect of old age, survivor status […].’

Direct effect

The first issue that the Court of Justice turned its attention to was whether Article 68(4) of the EC-Algeria Association Agreement could be relied upon by X in judicial proceedings in the Dutch courts, thus whether it had direct effect.

The Court responded positively. As long as a provision establishes a ‘clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure’ then it is deemed as having direct effect (para. 30). Applying the aforementioned formula to Article 68(4), the Court found that the right to freely transfer (export) pensions to Algeria from an EU Member State established such a clear and precise obligation. The formula was already articulated in previous case law (e.g. Akdas and Others C-485/07, para. 67 and Sürül C-262/96, para. 60).

The conclusion was not altered by the fact that the Association Council failed to subsequently adopt provisions to implement the Article 68 principles, as Article 70(1) of the Association Agreement required (para. 33).

Moreover, the Court also accepted that X could rely on Article 68(4) despite her not being ‘a worker of Algerian nationality’, but the spouse of such a person. Although the provision of Article 68(4) refers only to workers, the Court found that restricting the field of application to them in the field of survivor’s pensions would deprive the provision of its useful effect (para. 38).

Adjustments/Limitations to the survivor’s pension export to Algeria

Satisfied that the provision produced direct effect and that X was in the personal scope of the EC- Algeria Association Agreement, and thus could rely on Article 68(4), the Court examined the compatibility with it of the downwards adjustment conducted by the SVB, to reflect the lower cost of living in Algeria (compared to the Netherlands).

Focusing on the wording of Article 68(4) the Court found that the wording of the provision allowed for discretion for the Netherlands ‘in establishing the rules calculating the amount’ of survivor’s pensions when exported to Algeria, since the article provided for free transfer subject to certain conditions (paras. 46-47). This discretion allowed the Netherlands to adjust the level of the survivor’s pension to the cost of living in the country of residence of the recipient (para. 47).

However, the Court made a rather noteworthy interpretation of the level of discretion that an EU Member State (such as the Netherlands) has, when placing limitations on exporting a benefit to Algeria. Whilst it is true that the provision of Article 68(4) is not absolute, the Court attached a specific meaning to the term ‘rates’ in this article (‘…at the rates applied by virtue of the legislation of the debtor Member State…’). The Dutch language version of the Association Agreement uses the term ‘koers’ while the Greek version uses the word ‘ ιμ ’ (for the word ‘rates’). Both language versions point towards an interpretation of the word ‘rates’ as ‘exchange rates’. However, the Court choses to interpret ‘rates’ as ‘amounts’, thus affording a wider margin of discretion for adjustments to Member States when exporting benefits (see also Opinion of Advocate General Collins in C-549/22, footnote 26). The English linguistic version of the Association Agreements certainly permits this interpretation, since it is more open-ended than the Dutch or the Greek one (it must also be noted that the language of the case was Dutch).

Moreover, according to the Court, limitations to the exported amount are permitted as long as they are not discretionary (not based on objective factors) and do not render the right to export meaningless (para. 32).

As a final point, it is worthwhile to examine the Court’s interpretation in light of Article 4 of Council Decision 2010/699/EU, which contained the EU’s negotiating position to give effect to the obligation in Article 70(1) of the Association Agreement. However, it is important to stress that the Association Council (comprised of representatives from the EU and Algeria) has not adopted this position and the Court subsequently refused to rely on it (para. 50). However, Article 4 provided for an absolute prohibition on limitations to the exports of benefits, which supports the view that the word ‘rates’ must be interpreted as ‘exchange rates’. Had the Association

Council adopted the EU’s negotiating position, Article 4 would not allow for discretion for Member States to adjust exported benefits on the basis of the cost of living in the country of residence, just like if the word ‘rates’ had been interpreted as ‘exchange rates’.

Nikos Parthenopoulos is a PhD Researcher in EU social security law at the University of Maastricht. The author would like to thank his colleague, Pauline Melin, for her useful suggestions on a previous version of this text. All errors or omissions remain entirely on the author.

SUGGESTED CITATION: Parthenopoulos, N.; “Lost in translation? Adjusting exported survivor’s pensions to the cost of living of the country of residence, on the basis of the EU’s Association Agreement with Algeria (Case C-549/22”, EU Law Live, 21/03/2024, https://eulawlive.com/analysis-lostin-translation-adjusting-exported-survivors-pensions-to-the-cost-of-living-of-the-country-of-residence-on-the-basis-of-the-eus-association-agreementwith-al/

With IPCEIs into the Subsidy Race: Commission Approves Up to

€6.9 Billion of State aid for Hydrogen Infrastructure and €1.2 Billion in Aid for Cloud and Edge Computing

Christopher Montgomery Vollert and Philipp Kehl

Since the US Congress adopted the ‘Inflation Reduction Act’ (IRA) in August 2022, the major players in global trade have been competing for the most modern and sustainable technologies. The EU responded to the IRA in March 2023 by providing the Member States more leeway to grant State aid for sustainable investments as part of the ‘European Green Deal’. These developments prompted some observers and policymakers to speak of a ‘subsidy race’.

To compete in this ‘race’, the EU Commission is now also making increased use of a tool that has existed since the time of the EC Treaty, but, until recently, led a rather shadowy existence: Important Project(s) of Common European Interest (‘IPCEI(s)’). What are the most recent developments in this context, and what conclusions may we draw from them?

IPCEI Hy2Infra and IPCEI CIS

On 15 February 2024, the European Commission announced the approval of the third IPCEI under EU State aid rules to support hydrogen infrastructure. Seven Member States jointly notified this project entitled ‘IPCEI Hy2Infra’: France, Germany, Italy, the Netherlands, Poland, Portugal, and Slovakia. It is expected to boost the supply of renewable hydrogen, thereby reducing dependency on natural gas and helping to achieve the objectives of the European Green Deal and the REPowerEU Plan.

IPCEI Hy2Infra complements the first and second IPCEIs on the hydrogen value chain. The Commission approved IPCEI Hy2Tech on 15 July 2022, which focuses on the development of hydrogen technologies for end users. IPCEI Hy2Use was approved on 21 September 2022 and focuses on hydrogen applications in the industrial sector.

Moreover, it is not even three months since the Commission approved a previous IPCEI in another sector. On 5 December 2023, the European Commission announced the approval of the ‘IPCEI Next Generation Cloud Infrastructure and Services’ (IPCEI CIS), also jointly notified by seven Members States, to support research, development and first commercial deployment of advanced cloud and edge computing technologies. The aid approved amounted to about 1.2 billion euros.

IPCEI Hy2Infra is only the fifth and IPCEI CIS is the fourth project to be approved under the Commission’s new IPCEI Communication 2021/C 528/02, which was adopted on 30 December 2021. These Commission decisions are important because they allow for conclusions about the authorisation practice for future IPCEIs to be drawn.

When will the Commission authorise the promotion of IPCEIs?

The 2021 IPCEI Communication imposes very strict conditions on the authorisation of IPCEI aid.

Requirements for IPCEI approval

With the 2021 IPCEI Communication, the Commission has tightened the requirements for the authorisation of an IPCEI compared to the previously existing framework. The following criteria are examples for this new, more demanding approach:

At least four Member States must be partaking in an IPCEI (previously only a minimum of two) and there must be a realistic prospect of positive effects for a ‘wider part of the Union’ - i.e. not just for the financing States (para. 16). Other Member States must be given the ‘genuine opportunity’ to participate in advance (para. 17).

Furthermore, the positive effects must not be limited to the companies or economic sectors that directly benefit from the financial support, but must also have spillover effects. A spillover effect is a positive impact that a certain development has in neighbouring areas not directly affected by it. In the context of IPCEIs, this means that the aid not only benefits the subsidised project, but also, as the Commission puts it in its communication, has ‘wider relevance and application to the economy and society in the Union’ (para. 18). This criterion was not mandatory under the communication in force before 2021.

The Member States are not allowed to simply finance the company’s projects in full - instead, the company is expected to contribute by ‘important co-financing’ (para. 19). The old communication only referred to ‘co-financing by the recipient’.

IPCEI that focus on projects in the field of research, development, and innovation must be limited to projects that are particularly innovative or represent ‘important added value’ compared to the current state of the art. The 2021 Communication states in a footnote that this may also include projects to achieve the state of the art, if the project clearly and credibly aims to go beyond the global state of the art (para. 22, footnote (23)).

The approval of aid is subject to the condition of necessity and proportionality (para. 30 et seq.). This would be the case if the project, without Member State support, could not be expected to generate enough profit over its entire lifetime to represent a worthwhile investment for the companies involved (para. 32). To prove this, the Member States that wish to grant the aid must provide a detailed ‘counterfactual scenario’ of how the companies would behave without the aid. The amount of aid must be based on the amount of the proven financing gap, and the positive effects of the subsidised project must outweigh the distortion of competition caused by the aid (para. 43).

Advantages and disadvantages

If the requirements of the IPCEI communication are met, IPCEI enable powerful funding instruments that can advance an entire industry across the EU. For example, the total funding amount of IPCEI EuBatIn was 2.9 billion euros, IPCEI Hy2Tech (Hydrogen) 5.4 billion euros and IPCEI Microelectronics a staggering 8.1 billion euros. IPCEIs are therefore tools to mobilise massive resources to enable groundbreaking innovations.

At the same time, the hurdles for authorisation are high. The successful registration of an IPCEI requires complex cross-border coordination processes for national funding programmes and places a considerable burden of proof on the Member States to demonstrate that the intended recipients meet the requirements for funding. The criteria of necessity and proportionality also place limits on the scope of possible funding. The stricter approval requirements included in the new IPCEI Communication certainly aim to overcome concerns that State aid law could be undermined. Such concerns have been raised in the past with projects such as the European Green Deal and other programmes like Next Generation EU.

The stringent requirements not only apply to the Member States, but also to the companies wishing to apply for funding, which must prove that they fulfil the eligibility conditions. This leads to extensive approval procedures, which in turn can act as a deterrent, especially if separate approval procedures for EU subsidies have to be completed at the same time. This was one of the reasons why Tesla rejected funding from the recently approved IPCEI EuBatIn for its plant in Grünheide, Germany in 2021. There are also concerns about the fair distribution of funding from IPCEI. In its special report on industrial policy in the batteries sector, the Court of Auditors criticised the fact that over 80% of the funds from the IPCEI EuBatIN and IPCEI Batteries had only benefitted three Member States (Germany, France and Italy). According to the Court of Auditors, Member State differences with regard to production infrastructure and therefore the conditions for access to these public funds are not sufficiently taken into account in IPCEI procedures.

Outlook: Is the next IPCEI coming soon?

The non-confidential versions of the IPCEI Hy2Infra and IPCEI CIS decisions are expected to be published shortly in the State aid Register (see here and here for the respective press releases). However, it is already possible to draw some conclusions on the authorisation as to which considerations were decisive for the approval. The justification for the decision is also interesting in view of IPCEIs that are expected.

The press release on the approval of IPCEI CIS is particularly instructive in this regard. The Commission explicitly mentions that the project contributes to the realisation of EU initiatives such as the Green Deal, and that there is the potential to make edge and cloud computing technology a world leader by promoting it in the EU. The fact that the project promises to contribute to a “digital, greener, more secure, resilient and sovereign economy” is also emphasised in a particularly positive light. The Commission believes that the realisation of spill-over effects is ensured by, among other things, the provision of open source licences for developed software and the granting of other licences for newly created intellectual property rights on ‘fair, reasonable and non-discriminatory terms’.

This ensures that the ’European scientific community’ as a whole benefits from the funding.

These considerations not only reflect the thinking behind the new IPCEI communication of 2021, but also the current political discourse in light of the aforementioned global subsidy race. The goal of promoting EU initiatives such as the Green Deal or the Next Generation EU programme via IPCEI was newly included in the 2021 IPCEI Communication. The emphasis on a ‘more resilient and sovereign economy’ in turn clearly shows that the Commission is also consistently pursuing the goal of de-coupling the European economy from global risks, which has gained enormous importance in the context of the Ukraine war, in the field of State aid law. The special emphasis on the ‘contribution to the European scientific community’ could also indicate that the Commission considers its decision to fulfil the above-mentioned criterion of innovation beyond the current state of the art, as it aims at developments that go beyond what the market currently offers. In this light, future IPCEI have a particularly good chance of being approved if they fit into existing EU funding programmes and help to make the European internal market less dependent on foreign products and services, e.g. by closing technological gaps to other markets or creating competitive advantages.

The approvals of the IPCEI Hy2Infra and IPCEI CIS fit in well with the IPCEI on Microelectronics and Hy2Tech already approved under the new communication, as well as the IPCEI Health which is intended to promote research into gene and cell therapies, among others. It remains to be seen to what extent the bureaucratic effort necessarily associated with IPCEIs - which has increased once again with the 2021 communication - and competition for distribution between Member States will be obstacles to the success of this strategy.

The next IPCEI might come sooner than expected– and the strength of European industry will probably determine whether the internal market will be one of the centrepieces of innovation and forward-looking technologies in the coming decades.

Christopher Montgomery Vollert is an Associate in EU State aid law in a major law-firm in Germany.

Philipp Kehl is a PhD candidate in Public International Law at Bucerius Law School in Hamburg and works as a Research Assistant at the same major law-firm.

SUGGESTED CITATION: Montgomery, C. and Kehl, P.; “With IPCEIs into the Subsidy Race: Commission Approves Up to €6.9 Billion of State aid for Hydrogen Infrastructure and €1.2 Billion in Aid for Cloud and Edge Computing”, EU Law Live, 18/03/2024, https://eulawlive.com/analysis-withipceis-into-the-subsidy-race-commission-approves-up-to-e6-9-billion-of-state-aid-for-hydrogen-infrastructure-and-e1-2-billion-in-aid-for-cloud-andedge-computing-by-c/

THE LONG READ

From Rejection to Revival: The Long Journey to the Platform Work Directive’s Approval

Helena Verhuyck 1

Over the last decade, the world has seen a considerable increase in digital labour platforms using platform workers to provide services. Some of these platform-based work forms are physically visible in our society, for instance meal delivery couriers or taxi drivers, while other forms occur purely in the online realm, such as AI training or microtasks.

Platform work provides many benefits and can create opportunities including lower-threshold access to the labour market and more flexibility in the organisation of work. Simultaneously, however, platform work blurs the boundaries between the traditional employment and self-employment relationships. While there are important differences within the denominator of ‘platform work’, one feature that almost all digital labour platforms share is the fact that they classify platform workers as self-employed rather than as employees. In the EU, there are more than 28.3 million platform workers, a number expected to rise to 45 million by 2025, 93% of which are contractually classified as self-employed, often times not by choice.2 Legally, however, it is disputed whether these platform workers are genuinely self-employed or whether this is a form of false self-employment. The European Commission has estimated that 5.5 million platform workers may be wrongly classified as self-employed, i.e., almost one out of five platform workers.3 This misclassification by imposing a self-employed status on platform workers generally results in a lack of social rights and protection that would come with an employment status.4 Consequently, most platform workers are unable to enjoy the same safety net as salaried employees or any other benefits such as holidays, sick pay, pensions, etc

At the end of 2021, in order to tackle this legal uncertainty regarding platform workers’ employment status, the European Commission has drafted a Proposal for a Directive to improve platform working conditions. Just over two years later, on 16 February 2024, this proposal seemed to be definitively rejected, only to be unexpectedly revived three weeks later on 11 March, when sufficient Member States ultimately found political common ground. This contribution discusses the background and contents of this proposed Directive and traces its evolution from initial rejection to its unexpected revival. Finally, it glances at the future and attempts to outline a path forward.

1. Helena Verhuyck is a PhD researcher and teaching assistant at the University of Antwerp, lecturing labour law and researching the power dynamics in digital labour platforms with a focus on platform workers. She holds an LL.M from the University of Connecticut and a master in law from the University of Antwerp.

2. European Council and Council of the EU, Spotlight on digital platform workers in the EU, accessed 26 February 2024.

3. Ibid.

4. European Commission , ‘Q&A: Improving Working Conditions in Platform Work’, accessed 26 February 2024.

1. Platform work classification – a matter of national labour and case law

Worldwide, the legal status of platform workers has been the subject of manifold legal disputes. Myriad national courts have been confronted with the difficult task of classifying platform workers according to their national labour laws, with varying legal outcomes. Across the EU, the classification of platform workers has been the subject of over 100 court decisions, the majority of which classified the platform workers as employees. 5 Even though many court decisions recognised the fact that platforms exercise de facto direction and control over the platform workers, making them employees rather than self-employed, there is a lack of uniformity in the legal outcomes. Many platform workers therefore still remain in the ‘grey zone’ of employment, without the benefits of an employee status and simultaneously lacking any bargaining power or influence over their working conditions.

Hence, up until now, the platform worker classification has remained within the full discretion of the Member States, making it purely a matter of national labour laws and judgments.

2. The proposed Platform Work Directive: more harmonised labour standards for platform work

2.1 The initial proposal of the Platform Work Directive: supranational indicators for classification

At the end of 2021, the European Commission recognised this grey zone when it comes to many platform workers’ employment status and decided to try to tackle this issue on a supranational level, resulting in a proposal for a Directive to improve the working conditions of platform work.6 This so-called ‘Platform Work Directive’ has a twofold aim. Firstly, it aims to improve the transparency and fairness of algorithmic management used in the platform context. As digital labour platforms regularly use algorithms for human resources management, the Directive would provide platform workers with more insights as to how tasks are assigned, monitored and evaluated. Secondly, the Directive aims to remedy the frequent misclassification of platform workers and the related lack of social rights and protection. To this end, the Directive contained a set of five indicators to evaluate the platform-to-business-user working relationship. Generally, the Directive looks at whether the digital labour platform exercises control over the platform worker, since this is the decisive criterion that distinguishes employees from independent workers.

5. For an overview of European judgments, see Christina Hießl, ‘Case Law on the Classification of Platform Workers: Cross-European Comparative Analysis and Tentative Conclusions’ [2022] Forthcoming in Comparative Labour Law & Policy Journal. An important caveat here is that the majority of cases have been about location-bound platforms where the work is performed physically. Platform workers who perform the work purely online have rarely been considered employees, since there is a lack of court cases on the matter. The first judgment on crowdwork was issued at the end of 2020, in which the German Bundesarbeitsgericht rather surprisingly classified the platform worker as an employee, see Bundesarbeitsgericht 1 December 2020, 9 AZR 102/20, ECLI:DE:BAG:2020:011220.U.9AZR102.20.0.

6. Proposal for a Directive of the European Parliament and of the Council on improving working conditions in platform work 2021 [COM/2021/762] 2021/0414/COD.

In concreto, the five proposed indicators would enable national judges to verify whether the actual work arrangements of the platform worker correspond with their self-employed status or whether the digital labour platforms exercise control. Article 4 of the proposed Directive contained the five indicators and stated that ‘controlling the performance of work’ shall be understood as fulfilling at least two of the following:

(a) effectively determining, or setting upper limits for the level of remuneration;

(b) requiring the person performing platform work to respect specific binding rules with regard to appearance, conduct towards the recipient of the service or performance of the work;

(c) supervising the performance of work or verifying the quality of the results of the work including by electronic means;

(d) effectively restricting the freedom, including through sanctions, to organise one’s work, in particular the discretion to choose one’s working hours or periods of absence, to accept or to refuse tasks or to use subcontractors or substitutes;

(e) effectively restricting the possibility to build a client base or to perform work for any third party.

Thus, if the platform-to-business-user relationship fulfils two out of five criteria, the platform workers would be legally presumed to be employees of the labour platform, and thereby gain access to the relevant labour and social protection rights. As this would merely initiate a presumption of employee status, the burden of proof would subsequently shift to the digital labour platform, which, in accordance with national law and practice, may attempt to rebut this presumption. Based on these supranational indicators and the subsequent triggering and/or rebuttal of the legal presumption, the national competent authorities could then requalify the concerned platform workers as employees. Thus, the competency of reclassification would remain with the national bodies; the difference is that the Directive would shift the legal grounds on which the analysis is based from national labour laws to the proposed supranational indicators, including the legal presumption of employee status. Consequently, this would minimise contradicting national judgments and foster greater uniformity and legal certainty regarding the employment status of European platform workers. However, the final version of the Directive did not include these criteria due to a lack of sufficient agreement among Member States (infra).

2.2. The lead up to the initial rejection of the Platform Work Directive

In December 2023, after no less than six rounds of negotiations, the Council and European Parliament had finally reached a provisional agreement on the Directive which would then have to be ratified by the Council and the Parliament.7 Under EU rules, in order for the Council to approve legislation, a qualified

7. ‘Rights for Platform Workers: Council and Parliament Strike Deal’ (Consilium Europe, 13 December 2023).

majority needs to be reached. In casu the proposal needed 55% of Member States to vote in favour, and these votes had to represent 65% of the total EU population. On 22 December, however, a ‘Coreper’ meeting of the Member States revealed that the Spanish presidency of the Council failed to get the support of its members as the necessary majority could not be reached on the provisional agreement. Apparently, both the indicators and conditions under which the presumption is triggered as well as the modalities of the presumption’s rebuttal were the root of heavy disagreement, which ultimately lead to the collapse of the provisional agreement.

Despite this setback and the subsequent lack of early Christmas present for the misclassified platform workers, the Spanish presidency torch was passed to Belgium, who resumed the negotiations with the European Parliament in order to reach an agreement on the final shape of the Directive (infra, title 2.4).

2.3. France’s ‘non’ and the Directive’s near-death experience

On 8 February 2024, a new provisional agreement between the European Parliament and the Council was struck, once again putting the proposal in the hands of the voting Member States of the Council. This Council vote was regarded as the final opportunity to agree on the Platform Work Directive before the end of the European parliamentary term in June 2024. Ultimately, after a total of 799 days drafting, revising and (re)negotiating, the Platform Work Directive was rejected by the Council on 16 February 2024. It seemed that not even the renegotiated proposal for the Directive could convince a sufficient majority. Now, not only had the platform workers missed out on an early Christmas present in 2023, but also Cupid’s arrow missed its Valentine mark on them.

France was the only Member State that voted against the proposal while Germany, Estonia and Greece abstained. Since an abstention under qualified majority voting counts as a vote against, the four Member States ultimately formed a ‘blocking minority’. This means that even though 23 out of 27 Member States voted in favour, there was no sufficient majority to approve the Platform Work Directive. Considering that France and Germany already make up 33.8% of EU population, there was barely a chance for the qualified majority of 65% to be reached. This rejection received a lot of criticism, and many were wondering whether this could be considered a democratic outcome when four countries can block the will of 23 others.8 Others specifically criticised French president Macron, as it is no secret that he openly supports platforms, particularly Uber. In 2022, the Uber Files leak revealed his active lobbying efforts on behalf of Uber, advocating for the company’s illegal entry into the French market even before he was

8. For some reactions on the rejection of the Directive, read Ben Wray, ‘Gig Economy Project - “Macron Is Poisoning an Entire Continent”: EU Member-States Refuse to Support Platform Work Directive Deal’ (Brave New Europe, 22 December 2023), accessed 27 February 2024.

president.9 MEP Leïla Chaibi openly lamented France’s opposition and said that ‘it is undignified how Macron is now poisoning an entire continent to protect his friends from Uber’.10

2.4. The unexpected revival of the Platform Work Directive

Despite the major setback and the apparent death of the Directive, the Belgian presidency remained steadfast and put the Platform Work Directive back on the agenda of the EPSCO Council on 11 March. In this meeting, labour ministers from all 27 Member States were granted the opportunity to take a last, final stance on the proposed Directive. It is apparently highly unusual for a Directive to still go to EPSCO after the Council has rejected it, especially as an EPSCO Council is usually meant for rubber stamping agreements that have been prepared well in advance.11 Many people speculated about how exactly Belgium was intending to change the opposing or abstaining Member State’s minds, stating that Belgium might try to convince Estonia and Greece to break away from France and Germany.12 Overall, most people agreed that only a miracle could still lead to the long-anticipated approval of the proposed Directive.

Against all odds, the EPSCO meeting proved that miracles are still possible as both Estonia and Greece unexpectedly turned their abstentions into approvals. These announcements prompted audible responses from the assembled representatives, with many expressing surprise through gasps and applause. Both countries stated that while they still had doubts, they were willing to approve the Platform Work Directive in the spirit of compromise and solidarity. In doing so, Estonia and Greece broke the blocking minority with France and Germany, resulting in a qualified majority of 25/27 Member States in favour of the Platform Work Directive, representing 66,2% of EU population. The Platform Work Directive is consequently one of the first legal instruments in the EU to pass without either France’s or Germany’s approval.

Thus, ultimately only Germany and France refused to approve the Directive; the former stated that they regret the abstention but that the German coalition partners cannot reach an agreement and the latter stated that it reserves the right to vote in favour of the Directive, though only if they receive some clarifications on a number of legal points. France had long made clear that it has concerns about the legal presumption of employment, as they fear it would lead to an automatic reclassification of all platform workers, including the genuine self-employed. For this reason, a couple of days before the EPSCO Council on 8 March, France had proposed a number of last-minute amendments to the text of the Directive, attempting to further water down the legal presumption of employment. However, as

9. Laura Kayali and Alexandre Lêchenet, ‘How France Delivered for the Gig Economy’ Politico (13 January 2023), accessed 27 February 2024.

10. Wray (n 8).

11. Ben Wray, ‘More Questions than Answers in Brussels’ (Brave New Europe, 25 February 2024), accessed 27 February 2024. 12. ibid.

Estonia and Greece reversed their position to approve the Directive, France lost its leverage, rendering the proposed changes irrelevant.

2.5 The final agreed-upon text of the Platform Work Directive

Given the frequent renegotiations and revisions of the Directive, it is important to determine the definitive version that was ultimately agreed upon. In order to bring the reluctant of Member States on board, the Belgium presidency revised the proposed Platform Work Directive and deviated from the original text.

In the final version of the Directive, the provisions protecting against algorithmic management and decision-making remain identical since the previous point of contention concerned the harmonised indicators. Article 9 states that platforms will need to disclose not only the presence of automated monitoring and decision-making systems, but also the specific types of actions monitored, the aims of the monitoring, and the recipients of this information. Interestingly, these provisions will apply to all persons performing platform work, regardless of employment status. Subsequently, the contents of the Directive were revised by removing the harmonised indicators that would trigger the legal presumption. The idea of a presumption of employee status for platform workers remains, though under this new text, it is left to the discretion of each Member State to determine which facts indicating control and direction would be relevant in order to trigger this presumption. This revised proposal for Directive thereby already significantly steers away from the European Commission’s original intention, which was to harmonise labour standards within the European platform economy.

If we look at the final text of the Directive, Article 5 clarifies that Member States will be required to establish a legal presumption of employment in their legal systems, to be triggered when facts indicating control and direction are found. Thus, this presumption will be based on facts rather than on supranational legal criteria as the Directive originally proposed. Article 4 further states that –in absence of harmonised criteria– the determination of those facts will be made in accordance with national law or practice and collective agreements, while also considering EU case law. Not only have the supranational criteria been removed, the final text does not mention criteria at all, indicating that Member States will not be obligated to establish national criteria either. If Member States choose not to adopt national criteria, they would adopt a general presumption of employment based not on criteria but rather on an investigation purely focusing on whether the facts at hand indicate control and direction. The Directive’s lack of any mention of criteria does not mean that there is zero room for using legal criteria, as national law could still establish them in order to help assess control and direction in the platform work, as some countries have already done (infra). While this certainly diverges from the harmonised labour standards concept, this more open approach to determining control and direction might not be a bad thing, as it allows more flexibility –fixed criteria would allow platforms to try to find loopholes and avoid the

subsequent triggering of employment status. The platform workers, along with their representatives or national authorities, have the right to invoke this legal presumption and claim they are misclassified. If this misclassification is invoked, it is then up to the digital platform to attempt to rebut this legal presumption and prove that there is no employment relationship.

3.Future prospects of the Platform Work Directive

The unexpected revival of the Platform Work Directive did not come a minute too late, as the upcoming elections in June 2024 would have given no guarantee that platform worker protection would resurface on the agenda with a new European Commission and new MEPs in the Parliament. At this stage, there is one final step in the Platform Work Directive’s journey, namely the ratification by both the Council and the European Parliament, expected in April’s plenary session. Even though the road of the Platform Work Directive has been rocky and has taken many unexpected turns, this time the ratification really is a mere formality as the renegotiated text under the Belgian presidency has the support of almost all European parliamentary groups. Once the Directive has been ratified, Member States will have two years to implement the Directive into their respective national laws.

Some people, including Spanish labour minister Yolanda Díaz, regret that the final text no longer contains supranational indicators that would trigger the presumption of employment, a compromise that was necessary to reach sufficient agreement among Member States. While the Directive does establish a framework for determining platform workers’ employment status, it does so without specifying the criteria upon which this evaluation must rely. As a result, even after transposing the Platform Work Directive into national laws, it is unlikely it would establish a full level playing field. Subsequently, it can be expected that France and Germany, the only two Member States not approving the Directive, will establish criteria that are harder to trigger, consequently making it more difficult for platform workers to access to employment rights.

Member States should be wary of the platform lobby’s likely efforts to influence the national legislative process determining which facts or criteria indicate control and subordination, especially in countries like France where the platform lobby is proven to hold significant sway. Uber had already threatened in September 2023 that the reclassification of its drivers as employees would force its ride-hailing service to shut down in hundreds of cities across the EU and raise prices by as much as 40 per cent for consumers.13 Now, however, an Uber spokesperson said in a statement that the diluted Directive would leave the status quo unchanged, with platform worker’s status continuing to be decided country-to-country and court-to-court. It remains to be seen what the actual impact on platform services will be after the full implementation of the Directive, with variations in impact across the different Member States.

13. Javier Espinoza, ‘Uber Warns of Threat to Drivers under EU Gig Work Plan’ Financial Times (20 September 2023), accessed 12 March 2024.

On the upside, i nstead of mourning the death of the supranational indicators, the 25 Member States that voted in favour of the Directive could take matters into their own hands and infuse its spirit into their respective national labour laws. A couple of Member States have already done so, Spain being the leading country that is rumoured to have inspired the proposed Directive at a multinational level with its 2021 Riders’ Law. Other national initiatives range from Malta, which implemented the Directive’s proposed criteria fully, to Belgium, Portugal and Croatia, which adopted the Directive’s indicators but included some additional criteria, to Luxemburg which only partially adopted the criteria. 14 The remaining Member States now have the opportunity to enact national criteria indicating control and subordination. If Member States base these indicators on the proposed Directive, it would still achieve a more level playing field for European platform workers, even in the absence of harmonised indicators. This way, one can only hope that the slightly watered down Directive still achieves some form of harmonisation and legal certainty through a ripple effect resulting in a wave of national criteria based on the initial Directive’s text.

In conclusion, even though the Directive’s final text is a compromise of the initial proposal, this Directive remains a first brave initiative to combat the frequent misclassifications and false self-employment in the platform economy. While innovation is essential, it is equally paramount that digital transitions like these are harmonised with the European social dimension that provides protection for its citizens and workers. The Directive successfully strikes a balance between national labour systems and minimum standards of protection for over 28 million platform workers in the EU. Therefore, the Platform Work Directive is a pioneering legislative instrument that marks the first but definitely not last stride in the quest for more platform worker protection and transparent algorithms in EU.

SUGGESTED CITATION: Helena Verhuyck: “From Rejection to Revival: The Long Journey to the Platform Work Directive’s Approval”, EU Law Live Weekend Edition nº 179, https://eulawlive.com/weekend-edition/weekend-edition-no179/

14. ‘Platform Workers and Social Security: Recent Developments in Europe’ (International Social Security Association (ISSA), 2 November 2023), accessed 1 March 2024.

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HIGHLIGHT F THE WEEK S O

Court of Justice to stream hearing of case regarding the use of EU’s organic production logo for marketing of processed food products

Monday 18 March

The Court of Justice’s hearing in Herbaria Kräuterparadies II (C-240/23), concerning a case on the interpretation of the provisions of Regulation (EU) 2018/848, in the context of the use of the organic production logo of the EU for processed foodstuff, imported for the purpose of placing it on the market within the Union as an organic product, was streamed on the Court’s website.

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Preliminary reference concerning the interpretation of the Union Customs Code, in the context of amending an already lodged customs declaration

Monday 18 March

A request for a preliminary ruling from the Fővárosi Törvényszék (Hungary), lodged on 18 January 2024, regarding the interpretation of Article 173(3) of the Union Customs Code, was officially published in the Official Journal: ROSAS (C33/24).

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Court of Justice to clarify Directive 2013/48 and rights of suspects in criminal proceedings

Monday 18 March

The Sofiyski rayonen sad in Bulgaria referred a case concerning CH to the Court of Justice of the European Union, raising several questions regarding the compatibility of national legislation and case law with Directive 2013/48/EU and the Charter of Fundamental Rights: Case C-15/24, Stachev.

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Request for preliminary ruling on interpretation of EU rules for equal treatment in employment, published in OJ

Monday 18 March

Official publication was made of a request for a preliminary ruling from the Tribunale ordinario di Ravenna (Italy), lodged on 5 January 2024, concerning the compatibility of national legislation with Directive 2000/78 establishing a general framework for equal treatment in employment and occupation: Pauni (C-5/24).

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Deutsche Umwelthilfe v Commission: challenging extension decision for S-Metolachlor

Monday 18 March

Official publication was made of an action for annulment brought by Deutsche Umwelthilfe eV against the European Commission, revolving around the latter’s decision to refuse the applicant’s request for an internal review of Implementing Regulation (EU) 2023/918, which extended the approval period for S-Metolachlor.

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Preliminary ruling request concerning same sex marriage recognition and residency rights, published in OJ

Monday 18 March

Official publication was made of a preliminary ruling request concerning the recognition of a same-sex marriage under EU law: Case C-713/23, Wojewoda Mazowiecki

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EU-Switzerland Bilateral Relations: Negotiation Mandate and Opportunities

Monday 18 March

The European Union and Switzerland, recognizing their significant economic and social ties, embarked on a relaunch of negotiations aimed at enhancing their bilateral relations, which encompasses various sectors crucial for cooperation and mutual benefit.

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New rules regulating open and fair wholesale energy markets, adopted by Council

Monday 18 March

The Council adopted a new regulation that, according to the press release, ‘will reinforce market surveillance in the European Union and ensure open and fair competition in the wholesale energy markets.’

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Council gives final approval for trade and investment agreement with Chile

Monday 18 March

The Council adopted a decision on the conclusion of the Interim Agreement on Trade between the EU and Chile, which ends the internal ratification process within the EU and paves the way for the entry into force of the deal.

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Council approves regulation for short-term rentals

Monday 18 March

The Council finalised its approval of a regulation aimed at improving data collection and sharing for short-term accommodation rental services, which aims at fostering transparency in the short-term rental sector and empowering public authorities to effectively regulate this growing segment of the tourism industry.

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New regulation on protection of personal data, amending existing rules on use of information technology for customs purposes, published in OJ

Tuesday 19 March

Official publication was made of Regulation 2024/868 amending Council Decision 2009/917/JHA as regards its alignment with Union rules on the protection of personal data.

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Protocol on Cooperation between the European Commission and the European Economic and Social Committee, published in OJ

Tuesday 19 March

The Protocol on Cooperation between the European Commission and the European Economic and Social Committee was published in the Official Journal, outlining a comprehensive framework to reinforce their partnership, enhance collaboration, and foster greater involvement of civil society organisations in EU policy-making processes.

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Commission launches Joint Banking Reporting Committee

Tuesday 19 March

The European Commission, in collaboration with key financial authorities, initiated the Joint Banking Reporting Committee (JBRC) to enhance the efficiency and modernization of reporting systems for EU banks.

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Preliminary ruling request concerning jurisdictional interpretation in contract assignments

Tuesday 19 March

The Curtea de Apel Cluj in Romania referred a case involving E. B.SP. Z. O. O. and K. P.SP. Z. O. O. to the Court of Justice for a preliminary ruling, concerning the interpretation of Article 25 of Regulation No 1215/2012 on jurisdiction and the recognition of judgments in civil and commercial matters: E.B.SP, (Case C-682/23).

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Preliminary ruling requests on the interpretation of Article 8(1) of the Brussels I bis Regulation in a cartels damages case, published in OJ

Tuesday 19 March

Official publication was made of two requests for preliminary ruling, from the Gerechtshof Amsterdam (Netherlands), lodged on 13 November 2023, concerning the interpretation of Article 8(1) of the Brussels I bis Regulation: Electricity & Water Authority of the Government of Bahrain and Others (C-672/23) and Smurfit Kappa Europe and Others (C-673/23).

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ECtHR in Almeida Arroja v. Portugal: Portugal violated Article 10 ECHR

Tuesday 19 March

The European Court of Human Rights (ECtHR) delivered its judgment in Almeida Arroja v. Portugal, concluding that the domestic courts failed to adequately balance the applicant’s freedom of expression against the rights to reputation and honour. Read on EU Law Live

Council green-lights reform of the Statute of the Court of Justice

Tuesday 19 March

The amendments to the Rules of Procedure of the Court of Justice and the General Court, part of a broader effort to refine the legal framework governing the Court of Justice, including Protocol No 3 on its Statute, were approved by the Council. Read on EU Law Live

Anti-SLAPP Directive to protect journalists and human rights defenders from abusive court proceedings, adopted by Council

Tuesday 19 March

The Council adopted new rules to protect persons against, the so-called, strategic lawsuits against public participation (SLAPP), who will benefit from a number of procedural safeguards and measures, which will apply to manifestly unfounded claims or abusive court proceedings in civil matters with cross-border implications.

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Kingspan receives Statement of Objections from the Commission in relation to investigation of its proposed merger with Trimo

Wednesday 20 March

The European Commission sent a Statement of Objections to Kingspan, alleging that it provided incorrect, incomplete and misleading information during the 2021 Commission’s investigation of the company’s planned acquisition of Trimo.

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Council and Parliament strike deal on renewal of suspension import duties and quotas for exports originating from Ukraine

Wednesday 20 March

The Council and the European Parliament provisionally agreed to renew the suspension of import duties and quotas on Ukrainian exports to the EU for another year, until 5 June 2025.

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Vacancy position for référendaire at the Court of Justice

Wednesday 20 March

A vacancy for Legal Secretary will be available on 7 October 2024 in the Chamber of Judge Octavia SPINEANU-MATEI, President of the Ninth Chamber of the Court of Justice.

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Regulation (EU) 2024/900 on the transparency and targeting of political advertising, published in OJ

Wednesday 20 March

Official publication was made of Regulation (EU) 2024/900 of the European Parliament and of the Council of 13 March 2024 on the transparency and targeting of political advertising.

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Recommendation to combat counterfeiting and enhance the enforcement of IP rights, adopted by the Commission

Wednesday 20 March

The Commission adopted a Recommendation to combat counterfeiting, both offline and online, and enhance the enforcement of intellectual property rights.

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General Court annuls restrictive measures against Nikita Mazepin amid Ukraine conflict

Wednesday 20 March

The General Court delivered its judgment in case T-743/22, Mazepin v Council concerning the acts maintaining Mr. Nikita Mazepin on the lists of persons subject to restrictive measures.

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General Court: Measures adopted in light of the situation in Belarus and its involvement in Russia’s aggression against Ukraine to be annulled, in so far as they relate to the applicant

Wednesday 20 March

The General Court, sitting in its Extended Composition formation, delivered its judgment in a case concerning an action, brought by a tyre manufacturer, established in Bobruisk (Belarus), seeking the annulment of several acts regarding restrictive measures in view of the situation in Belarus and its involvement in the Russian aggression against Ukraine: Belshyna v Council (T-115/22).

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General Court annuls SRB’s 2021 Fund Contribution Decisions concerning six more banks

Wednesday 20 March

The General Court delivered six judgments concerning challenges of the European Union’s Single Resolution Board’s (SRB) decision (SRB/ES/2021/22) on calculating ex ante contributions to the Single Resolution Fund (SRF) for 2021: DZ Bank v CRU (T-390/21); Deutsche Kreditbank v CRU (T-391/21); Landesbank Hessen-Thüringen Girozentrale v CRU (T-392/21); Bayerische Landesbank v CRU (T-394/21); DZ Hyp v CRU (T-395/21); and DZ Bank v CRU (T-404/21).

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General Court dismisses action concerning annulment of Commission’s decision finding Spanish Tax Lease Scheme incompatible with EU State aid rules

Wednesday 20 March

The General Court handed down its judgment regarding an action brought by the applicants, Grupo Morera & Vallejo, SL and DSA, Defensa y Servicios del Asegurado, SA, by which they sought the annulment of Commission Decision 2014/200/ EU of 17 July 2013 on State aid SA.21233 C/11 (ex NN/11, ex CP 137/06) implemented by Spain through a tax leasing regime applicable to certain finance lease agreements: Grupo Morera & Vallejo and DSA v Commission (T-519/14).

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Guidelines to promote the responsible use of AI in research, released by the Commission and the research community

Wednesday 20 March

The European Commission and stakeholders from the European Research Area countries released a comprehensive set of guidelines to promote the responsible use of generative Artificial Intelligence (AI) in research.

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EDPS vacancy notice: Legal Officer to the Secretary General

Thursday 21 March

A job vacancy for the position of Legal Officer in the Office of the Secretary General (SecGen) of the European Data Protection Supervisor (EDPS) was made available.

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Court of Justice rules against Italian copyright legislation restricting independent management entities

Thursday 21 March

The Court of Justice delivered a judgment in Case C-10/22 regarding the compatibility of Italian copyright legislation with EU law, which revolved around LEA, a collective management organisation in Italy, and Jamendo, an independent copyright management entity based in Luxembourg.

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Request for Advisory Opinion from EFTA Court concerning the interpretation of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice (SCA), published in OJ

Thursday 21 March

The Beschwerdekommission der Finanzmarktaufsicht (Appeals Board of the Financial Market Authority) submitted a request to the EFTA Court, seeking an Advisory Opinion., in relation to several questions regarding the interpretation of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice (SCA) of 2 May 1992.

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Court of Justice rules on the recognition of judgments despite jurisdiction agreement violations

Thursday 21 March

The Court of Justice delivered its judgment in Gjensidige (C-90/22), a case concerning the interpretation of the Convention on the Contract for the International Carriage of Goods by Road and the Brussels I bis Regulation.

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AG Emiliou: Commission cannot be asked to assess a merger without Community dimension, although Member States cannot assess it under national law

Thursday 21 March

Advocate General Emiliou delivered his Opinion in a couple of cases, on appeal, concerning, essentially, actions for annulment against certain decisions of the Commission in relation to the prohibition of Illumina’s acquisition of Grail: Illumina v Commission and Grail v Commission and Illumina (Joined cases C-611/22 P; C-625/22 P).

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AG Ćapeta: Court of Justice should annul Council decision approving EU-Morocco Sustainable Fisheries Partnership Agreement

Thursday 21 March

Advocate General Ćapeta delivered her Opinion in Front Polisario (C-778/21 P and 798/21 P), an appeal brought by Front Polisario, claiming that the EU-Morocco Sustainable Fisheries Partnership Agreement failed to respect the Sahrawi people’s right to self-determination.

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General Court erred in annulling EU-Morocco preferential tariff agreement relating to the territory of Western Sahara, holds AG Ćapeta

Thursday 21 March

Advocate General Ćapeta delivered her Opinion in Front Polisario (C-779/21 P and 799/21 P), a case concerning an agreement with the Kingdom of Morocco extending, to the territory of Western Sahara, the preferential tariff agreement enabled by the EU-Morocco Association Agreement.

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Court of Justice declares Regulation 2019/1157 invalid, however finds obligation to store fingerprints in

identity cards compliant with EU fundamental rights

Thursday 21 March

The Court of Justice handed hand down its judgment in a case concerning the compatibility of the obligation to take fingerprints and store them in identity cards, in accordance with Article 3(5) of Regulation (EU) 2019/1157 on strengthening the security of identity cards of Union citizens and of residence documents issued to Union citizens and their family members exercising their right of free movement, infringe higher-ranking EU law, in particular, Article 77(3) TFEU, Articles 7 and 8 of the Charter of Fundamental Rights, and Article 35(10) GDPR: Landeshauptstadt Wiesbaden (C-61/22).

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AG Ćapeta delivers Opinion on the concept of an ‘interested party’ for State aid complaints procedure

Thursday 21 March

Advocate General Ćapeta has delivered her Opinion in Case C-224/23 P Penya Barça Lyon: Plus que des supporters (PBL),Issam Abdelmouine v European Commission concerning the requirements underlying the concept of an ‘interested party’ for the purposes of the State aid complaints procedure.

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AG Ćapeta: Court of Justice should set aside General Court’s judgment in Czech Republic v. Commission on unjust enrichment by EU

Thursday 21 March

Advocate General Ćapeta delivered her Opinion in Commission v. Czech Republic (C-494/22 P), a case concerning ‘the obligation to credit EU own resources’.

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Swedish framework on withholding tax on dividends paid by domestic companies to foreign public pension institutions incompatible with Article 63 TFEU, holds Court of Justice

Thursday 21 March

Advocate General Collins handed down his Opinion in Keva and Others (C-39/23), a request for a preliminary ruling from the Supreme Administrative Court in Sweden regarding the interpretation of Article 63 TFEU on the free movement of capital.

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Certain amendments to the European Parliament’s Rules of Procedure, published in the OJ

Friday 22 March

Official publication was made of the European Parliament’s Decision of 13 September 2023 on amendments to Parliament’s Rules of Procedure with a view to strengthening integrity, independence and accountability.

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EFTA Court annuls ESA’s decision regarding unlawful State aid relating to maintenance of streetlight infrastructure in Norway

Friday 22 March

The EFTA Court delivered its judgment regarding the annulment of a decision of 6 July 2022 of the EFTA Surveillance Authority (‘ESA’) on aid granted in relation to streetlight infrastructure in Norway.

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Regulation (EU) 2024/903 laying down measures for a high level of public sector interoperability across the Union, published in OJ

Friday 22 March

Official publication was made of Regulation (EU) 2024/903 of the European Parliament and of the Council of 13 March 2024 laying down measures for a high level of public sector interoperability across the Union.

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Conclusions on Ukraine, security and defence, Middle East, enlargement and reforms, migration, preparedness and crisis response, and European Semester, adopted by the Council

Friday 22 March

The European Council adopted conclusions on Ukraine, security and defence, Middle East, enlargement and reforms, migration, preparedness and crisis response, and European Semester.

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ECtHR: Access to information vs. Constitutional Court refusal in Sieć Obywatelska Watchdog Polska v. Poland

Friday 22 March

In the case of Sieć Obywatelska Watchdog Polska v. Poland, the European Court of Human Rights (ECtHR) delivered yesterday the judgment, addressing a complaint lodged by a Polish non-governmental organization (NGO), Sieć Obywatelska Watchdog Polska, under Article 10 of the European Convention on Human Rights.

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EU-Norway Strategic Partnership signed: developing sustainable raw materials and batteries

Friday 22 March

The EU and the Kingdom of Norway forged a strategic partnership through a Memorandum of Understanding (MoU) aimed at advancing sustainable land-based raw materials and battery value chains.

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EFTA Court clarifies compatibility of Norwegian COVID-19 (restrictive) measure with freedom of movement under Citizens Rights Directive

Friday 22 March

The EFTA Court provided guidance regarding certain questions, referred to by the Supreme Court of Norway concerning the interpretation of Articles 28 and 36 of the EEA Agreement, as well as the Citizens Rights Directive.

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Council adopts sanctions against several individuals and entities connected to the death of Alexei Navalny

Friday 22 March

The Council decided to impose sanctions against 33 persons and two entities linked to the sudden death in a strict penal colony of the Russian opposition politician Alexei Navalny, under its Global Human Rights Sanctions Regime.

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