The Week Nº27

IN-DEPTH:

Simplicity is not always the Ultimate Sophistication. The Obscure Judgement of the Court of Justice in C-27/23 Hocinx Concerning Equal Treatment of Workers in the Area of Family Benefits

Nikos Parthenopoulos

When the Problem Caused by ‘Exceptional Circumstances’ Becomes a Mistake (for which you are liable)

Phedon Nicolaides

The Role of Scientific Risk Assessments and the Precautionary Principle in Ensuring Rigorous and Adaptive Authorisation Procedures for Plant Protection Products in the EU- (Case C-308/22 and Joined Cases C-309/22 and C-310/22)

Carme Ribes Ortega

Antitrust in Labour Markets and the Notion of Restriction by Object

Pablo Torres Méndez

New Precisions on the Assessment of the Individual Character of a Registered Design (Puma SE T-757/22 and T-758/22)

Marie-Elvire de Moro-Giafferri

Motivation, Transparency and Fairness on Trial: Max Heinr. Sutor oHG v. SRB (Case T-393/21)

Pier Mario Lupinu

SYMPOSIUM ON THE 20TH ANNIVERSARY OF THE ‘GREAT’ EU ENLARGEMENT

20 Years after the 2004 Enlargement: The EU, Old and New, and Its Fortified Judicial Order

Marek Safjan

The ‘large-scale’ EU Enlargement and its Impact on EU Institutions

Bruno De Witte

SYMPOSIUM ON CLIMATE PROTECTION AS A EUROPEAN FUNDAMENTAL RIGHT UNDER THE ECHR AND BEYOND

Legal Standing in Climate Litigation before the ECtHR and the CJEU

Mario Pagano

THE LONG READ:

Judicial Cooperation between European Prosecutors and the Incomplete Federalisation of EU Criminal Procedure CJEU ruling in G. K. e.a. (Parquet européen)

Jacob Öberg

HIGHLIGHTS OF THE WEEK

IN-DEPT H

Simplicity is not always the

Ultimate Sophistication. The Obscure Judgement of

the

Court of Justice in C-27/23 Hocinx Concerning Equal Treatment of Workers in the Area of Family Benefits

Nikos Parthenopoulos

Context

Family benefits are one of the most complex areas of social security coordination. In the last few years, the Court of Justice of the European Union had to intervene in politically sensitive but legally questionable policies and decisions of Member States in the area of family benefits which curtailed cornerstone rights guaranteed by the social security coordination Regulations, Regulation 883/2004 and Implementing Regulation 987/2009. One of such rights is the right to freely export social security benefits outside the (competent) Member State which awards them. The relevant provision for family benefits is article 67 of Regulation 883/2004, under which a person shall be entitled to family benefits not just for themselves but also for their family members ‘as if’ the person in question and the family members were resident in the Member State which is competent to award family benefits. In essence, whether a person and their family resides in the Member State responsible to pay the benefit is immaterial for the purposes of entitlement (Moser C-32/18, para. 36).

Member States however, have attempted to curtail this right, for example by indexing family benefits to the cost of living of the Member State of export or by introducing indirectly discriminatory measures to limit entitlement to them (respectively in, Commission v Austria C-328/20 and Caisse pour l’avenir des enfants C-802/18). The motivation behind such attempts are often of budgetary nature. In particular, Luxemburg exports almost half of its family benefits outside its territory, which amounts to an ‘unreasonable burden’ to its family benefits system according to the view taken by this Member State (Caisse pour l’avenir des enfants C-802/18, para. 59). As such, it has attempted to restrict export of its family benefits. In 2020, the Court of Justice found the Luxemburg legislation on export of family benefits contrary to EU law just like the present case in question, delivered on the 16th of May of 2024.

The 2020 prelude: Caisse pour l’avenir des enfants (C-802/18)

The Luxemburg family benefits system underwent a major reform in 2016. Family benefits were conferred directly on the child, as a personal right, as long as the child is resident in Luxemburg. For children resident outside Luxemburg however, the right to family benefits was conferred to the parents of the child, rather than the child itself, but this was limited only in respect of their own biological and adoptive children. As a result, a frontier worker working in Luxemburg and living in France could only claim family benefits for his two biological children and not the child of his spouse, with whom the frontier worker had no biological relationship (but

was nevertheless living with him in the same household). The Court of Justice, referring to equal treatment of workers (Article 7(2) Regulation 492/2011) in conjunction with Regulation 883/2004 (Caisse pour l’avenir des enfants C-802/18, paras. 46-47) found that restricting entitlement to family benefits for frontier workers only to their biological children was indirectly discriminatory and non-justiciable. Moreover, relying on the term ‘family member’ in Article 2(2) of Directive 2004/38, which includes ‘direct descendants who are under the age of 21 or are dependants and those of the spouse or partner’, the Court found that the frontier worker in question could claim family benefits for the child of his spouse, as the latter was to be deemed as a family member.

The 2024 sequel: Hocinx (C-27/23)

The case is a follow up to the previous case and presenting a high degree of similarity with the 2020 case (Opinion of Advocate General Szpunar C-27/23, point 3). The applicant (FV) was working in Luxemburg and living in Belgium, had the status of frontier worker, and was drawing upon Luxemburg family benefits for a child placed in his household by virtue of a court order from Belgium. When the Luxemburg authorities withdrew retroactively his family benefits, he challenged the decision. The referring court asked whether the exclusion of children placed by a court order under the household of a frontier worker, from the system of Luxemburg family allowances, was lawful under equal treatment of workers (Article 45 TFEU, Article 7(2) of Regulation 492/2011) and Article 67 of Regulation 883/2004 (and the corresponding provision in the Implementing Regulation 987/2009, Article 60). The Court of Justice delivered its ruling in a remarkably short judgement, totalling less than 20 paragraphs, in which it examined (once again) whether Luxemburg can apply different award conditions for resident and nonresident workers for the benefits in question (Hocinx C-27/23, para. 24).

Indirect discrimination

The Court found that the Luxemburg legislation was indirectly discriminatory, contrary to Article 7(2) of Regulation 492/2011 and Article 45 TFEU. The Court found that the benefits in question, were ‘family benefits’ within the meaning of Article 1(z) of Regulation 883/2004 and also a ‘social advantage’ within the meaning of Article 7(2) of Regulation 492/2011 (para. 27). While, the family benefits in question could be paid to the legal person having custody of a child placed by a court order in their household if the child was resident in Luxemburg, this was not possible for frontier workers- who were not resident in Luxemburg (paras. 33-34). As such, this difference in treatment could place non-resident EU nationals in Luxemburg at a disadvantage, constituting indirect discrimination on the ground of nationality (para. 35). The referring court did not raise any possible justifications for indirect discrimination, therefore, the Court of Justice concluded an infringement of the principle of equal treatment of workers.

Family member

Contrary to Advocate General Szpunar, and the Caisse pour l’avenir des enfants case, the Court did not have recourse to Article 2(2) of Directive 2004/38 to determine whether the child in question could be regarded as a family member of the frontier worker. The Advocate General, stated with reference to the Treaty objectives

on free movement of workers and the Charter of Fundamental Rights securing the best interests of the child, that the term ‘family member’ must be interpreted broadly. Thus, it shall cover more situations than these in the definition provided by Article 2(2) of Directive 2004/38 (Opinion of Advocate General Szpunar C-27/23, point 51). However, the Court of Justice did not even touch upon this issue presumably because the referring court raised no such issue.

Non-applicability of Regulation 883/2004

Regarding the issue of equal treatment under Regulation 492/2011, the findings of the Court are fully consistent with the findings with the Caisse pour l’avenir des enfants case. On an remarkably paradoxical turn however, the Court found that the case ‘cannot be viewed in light of Article 67 of Regulation 883/2004 and article 60 of Regulation 987/2009’ (para. 25). As such, the judgment was rendered only in light of Regulation 492/2011 and Article 45 TFEU. The statement comes in direct contradiction with the Caisse pour l’avenir des enfants case, as the Advocate General also claims that the question of whether Regulation 883/2004 applies or not to the case, is to be clearly answered in the positive (Opinion of Advocate General Szpunar C-27/23, paras. 27-32). In the Caisse pour l’avenir des enfants case, the Court had found that ‘it is not inconceivable that Regulation No 883/2004 can apply in conjunction with Article 7(2) of Regulation No 492/2011’ (para. 43). As stated above, in Hocinx, the Court did not dispute that the benefits in question were ‘family benefits’ and ‘social advantages’ within the scope of Regulation 883/2004 and Regulation 492/2011 respectively (para. 27). Given the identical situations of the differential treatment between resident and non-resident (frontier) workers and the fact that the applicant in Hocinx was fully within the personal, material and territorial scope of Regulation 883/2004, the conclusion of the Court to disregard Regulation 883/2004 is illogical. Contrary to the Court’s explanation (in paragraph 24) Regulation 883/2004 also applies to family members of workers residing in a Member State other than the one which provides the benefits (as per Article 2(1) of Regulation 883/2004).

Just because the Luxemburg legislation was found to infringe Article 7(2) of Regulation 492/2011 it does not mean that it does not also infringe upon Article 4 of Regulation 883/2004, which also contains an equal treatment rule. In fact the Court has held that ‘Article 4 of Regulation No 883/2004 and Article 7(2) of Regulation No 492/2011 both give concrete expression to the principle of equal treatment in social security matters laid down in Article 45 TFEU’ (Commission v Austria C-328/20, para. 98). The Luxemburg legislation can also can also be seen as infringing on the right to export social security benefits, guaranteed by Articles 67 and 7 of Regulation 883/2004 (to that effect see, Commission v Austria C-328/20, paras. 45-46). In Commission v Austria, the Court found for example an infringement of Articles 4 and 67 of Regulation 883/2004 but also Article 7(2) of Regulation 492/2011 (para. 113). Similarly, in the Caisse pour l’avenir des enfants case, the Court found simultaneous infringement of Regulation 883/2004 and Regulation 492/2011 (para. 71).

Conclusion

While it is logical (and unsurprising) that the Court found an infringement of Article 7(2) of Regulation 492/2011, failure to scrutinise the legislation under Regulation 883/2004 is a serious omission which could set a

dangerous precedent. Although in the present case, the end result was that the legislation was found to be contrary to EU law, it must be noted that while Regulation and 883/2004 and Regulation 492/2011 have similar objectives (in terms of securing/facilitating free movement of workers), they nevertheless have different material, personal scopes and rights guaranteed. For example, in the area of family benefits, Article 68 of Regulation 883/2004 provides for the right to supplementary family benefits by a second (secondarily competent) Member State, while Article 60(1) of Regulation 987/2009 provides for the right of the parent, other than the parent entitled to the family benefit, to make a claim for family benefits. There are no equivalent provisions in Regulation 492/2011. Therefore, this omission did not make a difference in terms of outcome to the present case, nevertheless, it could be crucial in terms of outcome for future cases.

Notwithstanding this important point, it is noteworthy looking into the bigger picture. It is clear that the Court does not allow Member States’ policies restricting the export of family benefits. In three recent judgements, Commission v Austria (C-328/20), Caisse pour l’avenir des enfants (C-802/18) and now, Hocinx (C-27/23), the Court has unequivocally declared as incompatible with the EU legal order, national measures curtailing/restricting equal treatment rights of (frontier) workers in the area of family benefits/social advantages.

Nikos Parthenopoulos is a PhD Researcher in EU social security law at the University of Maastricht.

SUGGESTED CITATION: Parthenopoulos, N.; “Simplicity is not always the ultimate sophistication. The obscure judgement of the Court of Justice in C-27/23 Hocinx concerning equal treatment of workers in the area of family benefits”, EU Law Live, 30/05/2024, https://eulawlive.com/op-ed-simplicity-is-not-always-the-ultimate-sophistication-the-obscure-judgement-of-the-court-of-justice-inc-27-23-hocinx-concerning-equal-treatment-of-workers-in-the-area-of-family-benefi/

When the Problem Caused by ‘Exceptional Circumstances’ Becomes a Mistake (for which you are liable)

Phedon Nicolaides

Introduction

A problem arises when a person or organisation is prevented from achieving an objective or meeting an obligation or fulfilling a contract. A mistake is when the person or organisation is responsible for the failure. However, when the failure is caused by circumstances beyond one’s control, then normally the person or organisation is absolved of responsibility. This is, for example, the reason behind ‘force majeure’ clauses in contracts. One cannot be held liable for ‘exceptional’ events or circumstances.

But, sometimes, even when one cannot control external events, it may be possible to avoid their harmful consequences. We would normally regard as negligent the manager of a hotel that does not evacuate its guests when fire engulfs an adjacent building. Even though the manager is not responsible for the fire and he or she cannot control it, the manager can still take measures to prevent harm to guests.

On 16 May 2024, the Court of Justice had an opportunity to interpret the concept of ‘exceptional circumstances’ that may absolve an airline from liability for long delays or cancellation of flights. The reasoning of the Court in case C-405/23, Touristic Aviation Services (TAS) –issued by a three-judges chamber with no AG Opinion– is both instructive and puzzling. The case arose from a dispute between an entity claiming compensation on behalf of passengers for a delay of longer than three hours of a flight operated by TAS. The flight that departed from Cologne was delayed because of insufficient ground staff to load the baggage to the aircraft. Could TAS be held responsible for the insufficient staff or, in the alternative, could it have taken measures to address the problem?

The meaning of ‘exceptional circumstances’

The Court, first, recalls that ‘the concept of “extraordinary circumstances” … refers to events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond that carrier’s actual control; those two conditions are cumulative and their fulfilment must be assessed on a case-bycase basis’ (para. 21).

Therefore, a circumstance is exceptional when it is not inherent in normal activities and it cannot be controlled. The Court does not define inherent or normal. We may suppose that they denote events or actions that fall within routine operations, in this case of an airline. One may ask whether this understanding of what is inherent in normal activities also covers unusual occurrences so that an entity, and an airline in particular, should take preventive or precautionary measures to either avoid them or address them in case they materialise. For example,

an airplane can be flown safely by one pilot. But there are two of them in the cockpit in case one falls ill or makes an erroneous decision. Indeed, pilots falling ill shortly before or during a flight is not a frequent event. Yet the Court of Justice ruled in Case C-156/22, TAP Portugal (Death of the co-pilot), that ‘ illness or death, of one or more crew members, even if it was unexpected, … constitutes an event inherent in the normal exercise of that carrier’s activity, with the result that the carrier must expect such unforeseen events to arise’ (para. 23). Therefore, exceptional is not something unusual or infrequent but something unpredictable or unimaginable that impacts on normal activities.

However, in the TAS case the Court goes on to interpret the meaning of inherent in normal activities in a way that, in fact, reduces the clarity of that concept. Accordingly, ‘so far as concerns the condition that the event in question must not be, by its nature or origin, inherent in the normal exercise of the activity of the air carrier concerned, the Court has held, as regards aircraft refuelling operations, that, even if those operations fall, in principle, within the scope of the normal exercise of an air carrier’s activity, an issue which arises during those operations and is the result of a general failure in the refuelling system managed by the airport satisfies that condition since such an event cannot be regarded as intrinsically linked to the operation of the aircraft which completed the delayed flight’ (para. 23). [emphasis added]

The problem with this interpretation is that, by making a distinction between technical problems in the refuelling of a single aircraft and a general failure which is extrinsic to any single airline, the Court in essence addresses the question of whether the event was under the control of the airline. Indeed, we see next that the Court refers to ‘generalised breakdown’ when it interprets the concept of control:

‘As regards the condition that the event in question must be beyond the actual control of the operating air carrier concerned, it must be noted that events whose origin is ‘internal’ must be distinguished from those whose origin is ‘external’ to that air carrier. That concept thus encompasses, by way of the occurrence of such ‘external’ events, those which result in part from the activity of the air carrier and from external circumstances which are more or less frequent in practice but which an air carrier does not control because they arise from a natural event or an act of a third party, such as another air carrier or a public or private operator interfering with flight or airport activity. That is the case in particular where the refuelling system at an airport which is managed by the operator of that airport or by a third party experiences a generalised breakdown’ (para. 25). [emphasis added]

In a related judgment (C-308/21, SATA International – Azores Airlines) that is cited in TAS, the Court referred to refuelling as ‘a technical problem, which by its nature is confined to a single aircraft’ as opposed to a ‘general failure’ of the refuelling managed by the airport operator.

‘General failure’ and ‘generalised breakdown’ must have the same meaning because they both refer to the same event – the non-operation of the refuelling system. It appears now that an external event can be both noninherent in normal activities and outside the control of the organisation in question. But then it also seems that a non-inherent event and an external event have a common characteristic: they both fall outside the scope of

control. Something which is inherent in the normal activities of an organisation must by definition fall within its control. External events, again by definition, cannot be controlled.

Avoidable events

However, even events that cannot be controlled may be avoided. A skier cannot control an avalanche, but he/ she may be able to avoid it. Indeed the Court goes on to add an important nuance to the concept of ‘exceptional circumstances’:

‘If … the long delay of the flight in question was actually due to extraordinary circumstances, …, [it is also necessary to determine] whether the [airline concerned] has shown that those circumstances could not have been avoided even if all reasonable measures had been taken and that it adopted measures appropriate to the situation to avoid the consequences thereof, provided that this does not amount to an intolerable sacrifice in the light of the capacities of the air carrier’s undertaking at the relevant time’ (para. 28).

Therefore, it is not enough that some events are beyond the control of an organisation. It must also be shown that, first, they could not be avoided. Second, their impact could be remedied or mitigated. And, third, the cost of the avoidance or mitigation should be tolerable.

And the Court concludes that ‘it would be necessary to find that that air carrier was capable of avoiding the delay in the baggage loading, for example, if it was possible, in respect of that operation, for it to use the services of another service provider who had sufficient capacity to provide those services without delay, at the time when that air carrier knew or ought to have known that the airport operator did not have that capacity.’ (para. 29) [emphasis added]

We may suppose that the word ‘possible’ indicates both institutional and financial capacity. One should not expect an organisation to suffer large losses in order to remedy or mitigate the impact of events beyond its control.

Concluding thoughts: Towards a cohesive two-step test

Before drawing any lessons from the judgment in case TAS, consider the following mental experiment. You are on a business trip. Your employer pays for all reasonable travel costs, but not the costs of extravagant spending or inappropriate decisions. You have completed your meetings and now you sit in a taxi going back to the airport to catch your return flight. If you miss your flight because you are unreasonably late and you have to pay for a new ticket and/or extra hotel night, the employer will not reimburse you. Because you can predict from past experience that there is likely to be much traffic on the road, you have given yourself ample time to reach the airport. A train connection was not available from the location of your meeting. But, a multiple car collision has occurred and you are stuck on the motorway for a couple of hours. You are certain to miss your flight. Will you be reimbursed for the extra costs of a new flight and hotel? You could not prevent the accident, but you tried to avoid the impact of unforeseen delays by taking a taxi much earlier than the departure time. You could neither predict the extent of

the closure of the motorway, nor avoid or mitigate its impact. Therefore, whether missing the flight is your fault depends not only on whether the relevant events were outside your control or not but also on whether they were predictable and avoidable.

So, the Court of Justice is certainly right that exceptional circumstances or events beyond one’s control may still be avoided. One should be liable when it is physically and financially possible to take measures to avoid or mitigate the harmful impact of such events even though it cannot be prevented.

But, the Court, by referring to events external to an organisation to define both what is not inherent in its normal activities and what is not within the control of the organisation, makes it more difficult to understand the difference between the two components of the concept of exceptional circumstances. In fact, if unusual or infrequent events can be controlled by the organisation, then the decisive element in the definition of exceptional circumstances is whether they fall within its control. Even if they are not inherent in normal activities it may still be possible to control them.

Therefore, the impossibility of control is, in this context, both a necessary and sufficient condition in the first step to proving absence of liability when exceptional circumstances occur. The second step is whether it is possible to avoid or mitigate the impact of an uncontrolled event.

In other words, the Court should have more usefully laid down just two criteria in a two-step test. The first step determines whether a potentially harmful event can be controlled (i.e. prevented from occurring). If not, the second step determines whether the impact of the event can be foreseen and, therefore, avoided or mitigated. If not, then the organisation concerned is not liable. In the future, when these cases will be heard by the General Court after reform of the statute of the Court of Justice,[1] perhaps the General Court will develop a more rigorous approach along the lines suggested above.

Phedon Nicolaides is Professor at the University of Maastricht and at the University of Nicosia.

[1] Please see the Council press release of 19 March 2024. It can be accessed at here

SUGGESTED CITATION: Nicolaides, P.; “When the Problem Caused by ‘Exceptional Circumstances’ Becomes a Mistake (for which you are liable))”, EU Law Live, 31/05/2024, https://eulawlive.com/op-ed-when-the-problem-caused-by-exceptional-circumstances-becomes-a-mistake-for-which-youare-liable-by-phedon-nicolaides/

The Role of Scientific Risk Assessments and the Precautionary Principle in Ensuring Rigorous and Adaptive Authorisation Procedures for Plant Protection Products in the EU- (Case C-308/22 and Joined Cases C-309/22 and C-310/22)

Carme Ribes Ortega

1. Introduction

It is widely acknowledged that plant protection products have played a pivotal role for food security in recent history, whereas their safety is of equal importance. In order to regulate this issue, the EU has established Regulation (EC) No 1107/2009, commonly referred to as the Plant Protection Products Regulation (hereinafter referred to as the PPP Regulation). This was subsequently amended in 2018 by Commission Regulation (EU) 2018/605, which established scientific criteria for the determination of endocrine-disrupting properties.

This Op-Ed presents three cases brought before the Court of Justice of the European Union, namely Pesticide Action Network Europe (PAN Europe) v College voor de toelating van gewasbeschermingsmiddelen en biociden (Plant Protection Products and Biocides Approval Board, Netherlands) (‘the CTGB’). These cases gave rise to two judgments, which were delivered on 25 April 2024 (Case C-308/22 and Joined Cases C-309/22 and C-310/22 –also analysed here), and concern two related requests for a preliminary ruling under Article 267 TFEU from the College van Beroep voor het bedrijfsleven (Administrative Court of Appeal for Trade and Industry, Netherlands). Both cases have in common similar parties, substances, and dates, although they refer to different legal provisions of the PPP Regulation. Yet, there is one common aspect in both rulings that deserves to be underlined. In essence, while navigating the complexities of authorisation procedures, these rulings reaffirm the EU’s commitment to precautionary measures in safeguarding both human and animal health and the environment.

2. Controversy and Judgments

Joined Cases C-309/22 and C-310/22:

Both cases concern the authorisation procedures necessary to place plant protection products on the market, specifically those products named Pitcher and Dagonis. The companies in the sector applied for the necessary authorisations to be able to market these products, respectively. The CTGB authorised their marketing. An NGO, PAN Europe, lodged an objection against each administrative decision granting the authorisations. These objections were unsuccessful, and PAN Europe brought an action for annulment before the Administrative Court of Appeal for Trade and Industry of the Netherlands. In both cases, the Court decided to stay the proceedings and to refer several questions to the Court of Justice for a preliminary ruling, which gives rise to the present judgment.

In short, the dispute can be summarised as a disagreement over whether the competent authority of this EU Member State had erred in granting these authorisations by examining them in the light of the scientific and technical knowledge available at the time of the applications for authorisation (September 2015 and January 2016, respectively).

The Court of Justice decided that, according to the PPP Regulation, the authority in a Member State responsible for evaluating an application to market a plant protection product must consider the potential adverse effects of the endocrine-disrupting properties of any active substance in that product. This assessment should be based on the relevant and reliable scientific or technical knowledge available at the time of the examination (i.e., when deciding to grant the authorisation), particularly as specified in the criteria outlined in point 3.6.5 of Annex II to PPP Regulation, which in this case took place in October and May 2019, respectively. Notably, after the amendment of Annex II by Commission Regulation (EU) 2018/605 setting out scientific criteria for the determination of endocrine-disrupting properties.

This is seemingly pertinent to the case, given that the NGO asserts that certain active substances present in the products possess such properties. The Netherlands Administrative Court of Appeal for Trade and Industry will now be responsible for ruling a decision.

Case C-308/22:

This case also concerns the authorisation procedure to place a plant protection product on the market, named Closer. The submission for marketing authorisation was applied in Zone B (Centre), which includes Belgium, the Czech Republic, Germany, Ireland, Luxembourg, Hungary, the Netherlands, Austria, Poland, Romania, Slovenia, Slovakia, and the United Kingdom. In accordance with Article 36(1) of PPP Regulation, Ireland, acting as the Member State responsible, conducted a scientific risk assessment of Closer in collaboration with the other Member States. In order to assess the potential effects on bees, Ireland employed the Guidance Document on Terrestrial Ecotoxicology, published by the European Food Safety Authority (EFSA) in 2002 and completed its evaluation in 2016. Consequently, Ireland did not use the more recent EFSA’s 2013 Guidance Document on the risk assessment of plant protection products on bees. Based on the results of Ireland’s scientific risk assessment, in April 2019 the CTGB extended the marketing authorization of Closer for use in open cultivation of cabbages and potatoes in the Netherlands. Nevertheless, this authorisation was granted subject to certain restrictions, given the potential hazard to bees and bumblebees. The product is not to be applied during the flowering period of crops or on crops that are not in flower but are being actively visited by these important pollinators. The application of the product is only permitted after the flowering period of potato crops has concluded. Furthermore, the product should not be applied in the vicinity of self-propagating plants, and any such plants should be removed prior to the onset of flowering. This is to ensure that bees and other pollinating insects are not exposed to the product, thereby reducing the risk of harm to these vital species.

PAN Europe lodged an objection against the administrative decision granting the authorisation. Such objection was rejected, and PAN Europe brought again an action for annulment before the Administrative Court of Appeal for Trade and Industry of the Netherlands.

The Court of Justice has ruled that, in accordance with Article 36 of PPP Regulation, Member States are permitted to diverge from another Member State’s scientific risk assessment of a plant protection product in the event that they possess more reliable data indicating an unacceptable risk (see another case Analysis). It is within the purview of the courts to consider these assessments, yet they are not empowered to override the technical judgement of national authorities. In the event that the initial evaluation is deemed to be insufficiently reasoned with regard to human, animal, or environmental concerns in connection with the circumstances specific to a territory, Member States may conduct their own assessments without necessarily involving the original assessing state. Moreover, challenges to product authorisations can be based on the most reliable scientific data available, thereby demonstrating whether the scientific risk assessment previously carried out is actually insufficiently reasoned.

3. Conclusion

The Court of Justice’s rulings in these cases serve to emphasise the critical role of comprehensive scientific risk assessments in the authorisation of plant protection products. They also highlight the obligation of Member States to evaluate potential adverse effects based on the most relevant and reliable scientific data available at the time of assessment, particularly in relation to endocrine-disrupting properties. These judgments clarify that Member States may deviate from another state’s scientific risk assessments if new, more reliable data indicates an unacceptable risk. This ensures that decisions are based on the most current and robust scientific evidence, thereby enhancing the protection of human, animal and environmental health. The national courts may review these assessments, but they are not permitted to replace the technical expertise of the national authorities. This maintains a balance between judicial oversight and regulatory integrity. Furthermore, Member States are entitled to conduct independent assessments in the event that initial evaluations are deemed to be inadequate, particularly in light of specific territorial concerns. The substantiation of challenges to authorisations can be achieved through the presentation of the most reliable scientific evidence, thereby reinforcing the necessity for rigorous and adaptive regulatory implementation practices. The cases of the plant protection products Pitcher, Dagonis, and Closer serve to illustrate the contentious nature of these authorisations and the keyrole of up-to-date scientific knowledge therein. The pronouncements made in these rulings contribute to making the authorisation of plant protection products comprehensive and responsive to emerging scientific data, thereby ensuring the coherence of the PPP regulatory framework. This aligns with the high level of protection pursued by the EU, as outlined in the first subparagraph of Article 191(2) and (1) TFEU, to prevent active substances or products placed on the market from harming human or animal health or the environment.

Indeed, the judgments emphasise the importance of both the precautionary principle and legal certainty within the framework of Regulation No 1107/2009 regarding plant protection products (Case C-308/22, paras. 102 to 110, and Joined Cases C-309/22 and C-310/22, paras. 90 to 100). While legal certainty requires clear and predictable rules, the precautionary principle ensures a high level of protection for human, animal, and environmental health, even in the face of scientific uncertainty. The possibility of challenging product authorisations based on relevant and reliable scientific knowledge aligns with the precautionary principle’s objective of ensuring protection. Despite the need for clarity in legal rules, the judgement argues that the precautionary principle takes precedence in the context of plant protection products, allowing for the consideration of new scientific information that may arise during the authorization procedure. This flexibility of the law is essential for promptly addressing any emerging risks and taking necessary measures to protect health and the environment, even if it means withdrawing an authorization or implementing emergency measures. Thus, the judgement concludes that considering new scientific knowledge during the authorization procedure does not contradict the principle of legal certainty, as the regulatory framework allows for immediate action to address potential health and/or environmental risks.

This is particularly noteworthy in light of the fact that the Court of Justice has not always taken such an assertive approach to the application of the precautionary principle with regard to new scientific knowledge that arises during an authorisation procedure, even if different types of authorisations are involved (e.g. with regard to substances subject to authorisation included on the Annex XIV REACH Regulation). As this was the case, for instance in Case C-458/19 P (see case commentary), where the principle of legal certainty was considered alongside the precautionary principle, with the earlier receiving a greater weighting. Thus, with a completely different legal result.

In conclusion, these judgements in cases C-308/22, C-309/22 and C-310/22 represent a victory for the protection of both human and animal health and the environment. They navigate the complexities of the authorisation procedures for placing plant protection products on the market in the Member States, thereby reaffirming the EU’s commitment to precautionary measures. Furthermore, these rulings illustrate the potential flexibility of the law to adapt to new scientific data and to ensure regulatory coherence.

Carme Ribes Ortega is PhD researcher at the Department of Public Law, University of Lleida, Lleida, Spain; Chair of Food Law, University of Bayreuth, Bayreuth, Germany. She is the author of “Dangerous Legacy of Food Contact Materials on the EU Market: Recall of Products Containing PFAS” Ribes Ortega C., Molitorisová A., Purnhagen K. in the European Journal of Risk Regulation (2024).

SUGGESTED CITATION: Ribes Ortega, C.; “The Role of Scientific Risk Assessments and the Precautionary Principle in Ensuring Rigorous and Adaptive Authorisation Procedures for Plant Protection Products in the EU- (Case C-308/22 and Joined Cases C-309/22 and C-310/22)”, EU Law Live, 28/05/2024, https://eulawlive.com/op-ed-the-role-of-scientific-risk-assessments-and-the-precautionary-principle-in-ensuring-rigorous-and-adaptiveauthorisation-procedures-for-plant-protection-products-in-the-eu-case-c-308/

Antitrust in Labour Markets and the Notion of Restriction by Object

Pablo Torres Méndez

Introduction

On 3 May 2024, the European Commission (hereinafter, the ‘EC’) published a policy briefing on the role of Antitrust in Labour Markets. While this non-binding assessment confirms that restrictive labour market agreements and concerted practices have become a priority for enforcers, its importance lies in the fact that it clearly sets out the EC’s view that wage-fixing and no-poach agreements qualify as restrictions ‘by object’ under Article 101 TFEU. The same conclusion was also drawn in the revised Horizontal Guidelines and the Collective Agreements of ‘Solo

Self-employed Persons’ Guidelines

Although the EC recently carried out dawn raids in the online food delivery sector involving a potential no-poach agreement, it has not yet adopted a decision concerning a labour market agreement. In this sense, it is often argued that national competition authorities (‘NCA’) are more likely to deal with those agreements because of the nature of labour markets – for instance, the ‘Autorité de la Concurrence’ dealt with such a case some years ago. However, the importance of the EC’s role in ensuring cooperation in the European Competition Network (‘ECN’) should not be underestimated, nor should the content of the policy briefing. It is with this idea in mind that this Op-Ed will zoom in on the EC’s assessment and conclude by exploring its intrinsic implications on antitrust enforcement.

Understanding labour market agreements

There are many types of collusive practices in labour markets. The policy briefing focuses on two agreements: wage-fixing and no-poach agreements. According to the EC, the former refers to those in which employers agree to fix wages or other compensation or benefits. The latter includes all practices agreeing not to steal employees from each other – comprising of arrangements such as ‘no-hire’ and ‘non-solicit’ agreements.

At the outset, the EC adopts an economic standpoint to describe the nature of the agreements and explain why they are detrimental to employees, firm productivity, and innovation. First, the EC argues that wage-fixing agreements set wages equal to the monopsony wage level by reducing labour demand, with the potential effect of reducing output and increasing downstream prices to the detriment of consumers. Second, it is contended that no-poach agreements ultimately reduce wages because companies would have fewer incentives to increase salaries to attract new employees, and thus, they prevent the efficient allocation of productive employees to productive firms.

Labour market agreements to qualify as restrictions ‘by object’

The EC’s rigorous finding that both wage-fixing and no-poach agreements need to be considered as restrictions ‘by object’ under Article 101(1) TFEU is not surprising. It follows a trend of administrative decisions that emerged from some NCAs, such as the Dutch, the Spanish, and the French. Notwithstanding this, it should be noted that substantive legal assessment provided by the EC should always be welcomed – even more if it categorises a certain agreement as ‘by object’ per se.

The briefing first refers to Cartes Bancaires and EDP to recall that the concept of restriction by object needs to be interpreted restrictively. Only in those agreements that reveal a sufficient degree of harm to competition, there is no necessity to examine their effects. Furthermore, as stated in European Superleague and International Skating Union (‘ISU’), to determine whether an agreement reveals, by its very nature, a sufficient degree of harm to be considered as having as its object the prevention of competition, one must examine (a) the content of the agreement; (b) the objectives it pursues; as well as (c) the economic and legal context of which it forms a part –including the nature of the products or services and the real conditions of the structure and functioning of the markets concerned.

Having established the above, the EC holds that ‘the analysis of the legal and economic context differs in nature and intensity from the analysis of restrictive effects of competition, otherwise the notion of restriction by object would lose its effet utile’. Moreover, the Opinion of AG Wathelet in Toshiba is cited to clarify that to fall within one of the categories expressly referred to in Article 101 TFEU, it does not require ‘an in-depth analysis of the economic and legal context’, but it may be ‘limited to what is strictly necessary’ to prove the existence of a restriction by object.

Do wage-fixing and no-poach agreements necessarily fall within the categories of Article 101 TFEU?

The EC’s conclusion is straightforward yet not unproblematic. Both types of agreements should fall within the situations included in Article 101 TFEU. Wage-fixing as a form of purchase price fixing under Article 101(1) (a) TFEU and no-poach agreements as a form of supply market sharing under Article 101(1)(c) TFEU. The outcome regarding wage-fixing agreements was likely predictable since these agreements are also deemed ‘by object’ restrictions under the updated Horizontal Guidelines. Nonetheless, categorising no-poach agreements in the same way raises significant doubts. In specific situations, no-poach agreements can actually have as its object the protection of fair competition, at least under certain conditions. This would be the case, for instance, on agreements protecting trade secrets that poached employees could take to competitors and thus cause irreparable harm to the undertaking in question.

In this context, the EC acknowledges that wage-fixing and no-poach agreements may qualify as ancillary restraints. This could happen if the deal meets the four cumulative conditions mentioned in para. 29 of the Guidelines on the application of Article 81 (3). That is, in case (a) there is a non-restrictive transaction, in which (b) the restraint is directly related to that transaction, (c) objectively necessary for its implementation, and (d) proportionate (see also

MasterCard case para. 91). The EC recalls that the parties bear the burden of proving that the criteria are met. As a result, it will be for them to demonstrate that there are no less restrictive means of protecting non-patent IP rights or that the agreement does not cover all employees but is limited to those necessary for a reasonable duration and within a specific territorial scope. It is noteworthy to raise the following point: the policy brief considers wagefixing and no-poach agreements as restrictive ‘by object’ but also states that they could be regarded as an ancillary restraint if the criteria are met. This seems contradictory with the case law of the Court of Justice, under which the ancillary restraints doctrine applies only to agreements that do not have as their object the restriction of competition (see, for instance, para. 113 of ISU).

Additionally, the EC defends that wage-fixing and no-poach agreements are unlikely to be exempted under Article 101(3) TFEU – it could be the case if it is demonstrated that they have pro-competitive effects. The EC bases its argumentation on the fact that ‘the current literature shows that net efficiencies are at best uncertain’, those agreements ‘tend to artificially lower wages’, and ‘there are usually less restrictive ways of achieving the same result’.

Conclusion

The EC’s policy brief clearly treats both wage-fixing and no-poach agreements as restrictions ‘by object’ under Article 101(1) TFEU. It also (surprisingly) concludes that the ancillary restraints doctrine may apply to those agreements – thus contradicting recent case law such as ISU and Lithuanian Notaries. Accordingly, this piece of work could be described as (the) a perfect example of the EC’s preference for the ‘formal approach’ to restrictions by object. At the end of the day, it makes their (complex) job a little bit easier.

Be that as it may, it is my understanding that Super Bock confirmed that the competition community should get over Professor Whish’s ‘object box’ era. In case the defendant relies on the agreement’s procompetitive effects, the Court held that ‘those elements must, as elements of the context of the agreement, be taken into account. Provided that they are demonstrated, relevant, intrinsic to the agreement concerned and sufficiently significant, those effects may give rise to reasonable doubt as to whether the agreement concerned caused a sufficient degree of harm to competition’ (para 36). Consequently, it should be for the Commission on a case-by-case basis to determine whether or not a no-poach agreement presents a sufficient degree of harm to competition. In this sense, we could conclude that labour market agreements such as no-poach agreements should not always be considered as restrictive ‘by object’. Their procompetitive effects may balance out the anticompetitive ones, hence lacking that restrictive object under certain circumstances.

Pablo J. Torres is an LL.M. in EU Law candidate at the College of Europe.

SUGGESTED CITATION: Torres Méndez, P.; “Antitrust in Labour Markets and the Notion of Restriction by Object”, EU Law Live, 29/05/2024, https://eulawlive.com/op-ed-antitrust-in-labour-markets-and-the-notion-of-restriction-by-object-by-pablo-torres-mendez/

New Precisions on the Assessment of the Individual Character of a Registered Design (Puma SE T-757/22 and T-758/22)

Marie-Elvire de Moro-Giafferri

By two recent judgments involving Puma (Puma SE v. Road Star Group, T-757/22 and Puma SE v. Fujian Daocheng Electronic Commerce Co. Ltd, T-758/22 ), the General Court precised the relevant elements of earlier designs in the context of the assessment of the individual character of a Community Design on the basis of Articles 25(1)b and 6(1) b of Council Regulation no.6/2002 on Community Designs (‘the Regulation’). According to Article25(1)b of that Regulation, a registered Community Design may be declared invalid if it does not fulfill, in particular, the requirements of novelty and individual character. The individual character is recognised if the overall impression produced by the design on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public before the date of filing the application for registration (Article 6(1)b of the Regulation).

Both disputes at issue concern the alleged nullity of registered Community Designs for footwear. The plaintiff, Puma, applied for a declaration of invalidity in respect of various earlier designs with the indication ‘soles for footwear’ consisting in graphic representation of soles with the rest of the shoe in broken lines, but also in respect of earlier designs consisting in pictures of shoes with an element corresponding to an European Union trademark. Puma considered that the comparison of the contested designs with earlier designs should be made only on the basis of the soles of the shoes, which form the essential element of the shoe because, if that were not the case, the protection for those elements would be ineffective. The plaintiff also considered that the word and figurative elements on the designs that constitute a trademark should be also irrelevant in assessing the individual character of a design, since they are affixed to indicate the origin of the products and do not constitute features of the product giving the goods concerned their appearance.

The Invalidity Division of the European Union Intellectual Property Office (EUIPO) and then the Board of Appeal dismissed the applications for a declaration of invalidity filed by Puma. Therefore, the plaintiff brought an appeal before the General Court in these two cases.

In both judgements, the General Court first recalled the four stages to be carried out in assessing the individual character of a registered Community designs, i.e, i. deciding upon the sector to which the products in the which the design is intended to be incorporated or to be applied belong; ii. the informed user, its degree of awareness of the prior art and its level of attention; iii. the designer’s degree of freedom; iv. the outcome of comparison of the overall impressions produced by the contested design and by any earlier design which has been made available to the public, taken individually. In light of those principles, the General Court found that the earlier designs

provided in both cases were sufficiently disclosed, that the informed user would display a relatively high level of attention when using shoes and that the designer’s degree of freedom was high.

In the cases at issue, the interest of the decisions of the General Court resides in its assessment of the relevant elements to be taken into account in the contested design and in the earlier designs. The General Court stated that all the elements actually protected by the contested design must be taken into account when comparing designs, unlike earlier designs, whose relevant elements extend to all those disclosed. However, the elements of an earlier design are deemed to have been disclosed, if they appeared clearly and precisely when the design is made available to the public. On these grounds, the General Court stated that the contested designs represent a complete shoe model consisting of both a sole and upper of a shoe without any predominant element and that all their elements should be taken into account in the comparison. As regards the earlier designs, the elements in broken lines in their graphic representation were disclosed at the same time as the protected part of those designs and appeared sufficiently clear and precise to perceive the appearance of the entire shoes. Therefore, all the disclosed elements of the earlier designs were relevant, and the comparison not limited to the soles.

As regards the elements corresponding to an European Union trademark, the General Court took them into account in its assessment of the overall impression of the designs at issue, since they contribute greatly, in particular on account of its size and more specifically of its ornamentation, to the appearance of the earlier design.

As a consequence, the General Court confirmed the Board of Appeal’s decisions, which dismissed Puma’s claims for invalidity.

This interpretation is in line with the importance given to the disclosure and visibility requirement within the protection of Community designs and in the assessment of individual character, but also novelty, and with EUIPO design guidelines.

Indeed, the disclosure and proof of visibility of features of earlier designs are not limited to a registration but can be supplemented by additional features that were made available to the public in different ways.

As far as prior art is concerned, the important matter is not the extent of its protection, but what it discloses of sufficient quality to allow all the details to be discerned in the portrayal of the earlier design. Thus, it includes even the disclaimed features.

Marie-Elvire de Moro-Giafferri is an attorney at law at the Paris Bar, specialised in Intellectual Property.

SUGGESTED CITATION: de Moro-Giafferri, M.; “New precisions on the assessment of the individual character of a registered design (Puma SE T-757/22 and T-758/22 )”, EU Law Live, 27/05/2024, https://eulawlive.com/analysis-new-precisions-on-the-assessment-of-the-individual-character-ofa-registered-design-puma-se-t-757-22-and-t-758-22-by-marie-elvire-de-moro-giafferri/

Motivation, Transparency and Fairness on Trial: Max Heinr. Sutor oHG v. SRB (Case T-393/21)

Pier Mario Lupinu

Case T-393/21, Max Heinr. Sutor OHG v. Single Resolution Board (SRB) centres around the legality of the SRB’s decision regarding the calculation of ex ante contributions to the Single Resolution Fund (SRF) for 2021. This analysis delves into the procedural and substantive aspects of the General Court’s ruling, examining the implications for the parties involved and the broader regulatory framework applicable to institutions based in the Banking Union (BU).

Max Heinr. Sutor oHG, a credit institution based in Germany, filed a case against the SRB challenging its decision on the calculation of its ex ante contributions to the SRF for 2021. The SRB is responsible for determining the annual contributions from financial institutions to the SRF, which is part of the Single Resolution Mechanism (SRM), a legal and operational framework designed to ensure the orderly resolution of failing banks with minimal impact on public finances while preserving the critical functions and avoiding contagion. The SRF is made of contributions from all the banks based in any of the Participating Member States to the SRM, regardless of their size. Nevertheless, their size and risk profile are the characteristics based on which the SRB determines those contributions. While the SRB is responsible for the calculation of the contributions, the national resolution authority, in the present case the Bundesanstalt für Finanzdienstleistungsaufsicht (BaFin), is responsible for the collection of the contributions from the bank.

In this case, the General Court had to deal with legal issues ranging from the application of substantive law to the obligation of motivation, and the respect of the principles of proportionality and equal treatment. More in detail, the Court had to examine: whether the SRB’s decision adhered to the procedural and substantive requirements set out in relevant EU legislation, including Regulation (EU) No 806/2014 (SRM Regulation) and, especially, the Delegated Regulation (EU) 2015/63 on ex ante contributions; whether it provided sufficient reasoning in its decision to allow Max Heinr. Sutor oHG to understand and verify the calculation of its contributions; whether the inclusion of certain liabilities in the calculation was proportionate and justified; and whether the method employed by the SRB discriminated Max Heinr. Sutor oHG compared to other institutions.

Under German regulations, customer deposits managed by a credit institution must appear on its balance sheet as ‘fiduciary assets’, while amounts owed to clients must be shown as ‘fiduciary liabilities.’ The contested decision includes these fiduciary liabilities in the calculation of Max Heinr. Sutor oHG’s ex ante contribution. The BaFin requested Max Heinr. Sutor oHG the disbursement of the contribution as calculated by the SRB, attaching the decision attacked as well as the explanatory communication SRB/ES/2021/24. Max Heinr. Sutor oHG argued

that its fiduciary liabilities had to be excluded from the calculation of the ex ante contributions by virtue of the derogation provided for in Article 5(1)(e), of Delegated Regulation 2015/63, claiming that those liabilities met the conditions under the said Article. The Court noted that the SRB has no discretion concerning the exclusion of the liabilities under Article 5(1)(e) (Iccrea Banca v Banca d’Italia, point 93) and that a strict interpretation of the conditions listed in the latter Article must be applied (State Street Bank International GmbH v Banca d’Italia, points 39 and 40). It derives from such Article that, for the exclusion of the liabilities, three cumulative conditions have to be met. As revealed during the proceedings, the Court noted that Max Heinr. Sutor oHG did not met the first condition (to be considered as an investment firm in the meaning of Article 5(1)(e)), thus rejecting the plea.

The decision was also contested for not meeting the requirements of the obligation to provide reasons. While the Court rejected Max Heinr. Sutor oHG’s arguments, it examined ex officio whether the SRB breached its duty to provide reasons regarding the determination of the annual target level (i.e., at least 1% of the amount of covered deposits, as enshrined in Article 69(1) of the SRM Regulation). The Court found that the decision of the SRB lacked sufficient reasoning in explaining how it was determined. This failure to provide an adequate explanation meant that neither the applicant nor the Court could verify the appropriateness and correctness of the contributions imposed, as the explanations provided by the SRB in the contested decision were inconsistent with those provided during the judicial procedure. In this regard, the Court emphasised that adequate motivation is essential for ensuring transparency and allowing institutions to understand the basis for their financial obligations under the SRM. However, the failure to motivate adequately the decision has to be framed within the SRB’s broader obligation to balance transparency with the protection of confidential business information, as acknowledged by the Court.

As a result of the above findings, the General Court annulled the SRB’s decision regarding Max Heinr. Sutor oHG’s 2021 ex ante contributions due to the above procedural deficiencies. However, recognising the potential disruption to the SRF, the Court maintained the effects of the annulled decision for six months, allowing the SRB to adopt a new, legally compliant decision.

As mentioned in the opening of this analysis, this case is not only relevant for the Parties, as it entails a broader impact, underscoring the importance of transparency and proper reasoning in decisions within the BU framework. It highlights the need for authorities like the SRB to provide clear and detailed justifications for their decisions, especially when they impose financial obligations on institutions under their remit.

Pier Mario Lupinu holds a PhD in Banking and Finance Law jointly at the University of Luxembourg, where he lectured European Banking Law, and at Roma Tre University. He is currently employed as a Banking and Finance Knowledge Advisor at the Luxembourg office of an international law firm. Prior to this, he worked in legal positions for several EU institutions and agencies, such as the European Central Bank, the Single Resolution Board, the European Commission, and the European Investment Bank.

Erratum: a first version of this text contained inaccuracies that have been corrected.

SUGGESTED CITATION: Lupinu, P. M..; “Motivation, Transparency and Fairness on Trial: Max Heinr. Sutor oHG v. SRB (Case T-393/21)”, EU Law Live, 30/05/2024, https://eulawlive.com/analysis-motivation-transparency-and-fairness-on-trial-max-heinr-sutor-ohg-v-srb-case-t-393-21-by-piermario-lupinu/

SYMPOSIUM

SYMPOSIUM ON THE 20th ANNIVERSARY OF THE ‘GREAT’ EU ENLARGEMENT

20 Years after the 2004 Enlargement: The EU, Old and New, and Its Fortified Judicial Order

Marek Safjan

1. The Symbolic and Substantial Impact of the 2004 Enlargement

The accession of ten new Member States to the European Union in 2004, marking the largest enlargement in the Union’s history, was both a symbolic event and one of immense political, economic, and social significance. Europe was reshaping its identity, drawing on the historically rooted idea of pan-European unity as expressed in the works of Jean-Jacques Rousseau (‘Project for Perpetual Peace in Europe’, 1761) and Immanuel Kant (‘Perpetual Peace: A Philosophical Sketch’, 1795), grounded in shared values and principles. Concurrently, the Union faced the immense challenge of adapting its existing integration mechanisms and institutional frameworks to the significantly altered conditions of functioning.

The new Member States perceived EU accession as the culmination of the post-Yalta period in Europe and a crucial condition for future stability and security, while also serving as a strong impetus for economic development and an improved quality of life. Most citizens of these new Member States had limited knowledge about the organisation, principles, and functioning of the European Union, and their decisions to join were often driven by the motivation to ‘enter a better world’, definitively leaving the sphere of influence and control of the Soviet empire.

In the old Member States, political elites certainly saw the enlargement as a moral and political imperative, an act of settling the accounts imposed under the Yalta order. They also had a great awareness and understanding of the economic and political benefits arising from the unification of Europe through such a significant enlargement of the common market.

To the general public in the old EU, however, the new EU members were largely unknown and incomprehensible, this ‘knowledge gap’ stemming in part from persisting educational stereotypes. People also sensed risks of price and wage dumping, potentially weakening the benefits of the common market and treaty freedoms. These differences in attitudes and the resultant limited mutual trust still influence current debates on the future EU strategy, majority voting in the European Council, the formation of a common foreign and defense policy, and other issues vital for strengthening and developing European integration.

The high ‘transformational’ and ‘adaptational’ costs incurred by Central European countries in finding their place in the EU and ensuring compliance with all principles and rules, particularly those relating to the common market and free competition, were neither sufficiently appreciated nor understood in the old Member States. The symbolic acceptance of ‘younger brothers from the East’ quickly clashed with the hard reality of thousands of new

workers migrating, large companies relocating to the new Europe due to lower production costs, and the necessity to share the EU budget, especially structural funds, favoring the neglected and infrastructurally lagging regions of Central Europe.

2. Dynamics of Attitudes Over Two Decades

The experience of 20 years in an enlarged European Union cannot be presented linearly, implying a constant, unchanging relationship between European societies. Instead, it resembles a fluctuating line, indicating an increase or decrease of confidence in European integration. The level of distrust on both sides has remained relatively stable, while the scale of resentment towards the numerous ‘newcomers from the East’ seemed to even increase, if we take into account a common experience among many individuals from new Member States working in the old Member States.

Over these two decades, one can distinguish several phases reflecting significant dynamics in societal attitudes in new Member States towards integration processes:

First Phase: Euro-Enthusiasm

In the first phase, preceding and immediately following accession, euro-enthusiastic attitudes predominated (at least among the members of society participating or interested in public life). This ‘neophyte enthusiasm’ sometimes naively assumed that joining the EU would automatically solve all problems related to democracy, protection of rights and freedoms, economic development, and quality of life. During this stage, an enormous effort was made to transpose the entire existing body of EU law into national legal systems, covering thousands of regulations with regulatory mechanisms in almost all areas of law, from constitutional provisions to technical regulations.

Second Phase: Euro-Skepticism

The second phase was marked by more pronounced euro-skeptical attitudes (though not dominant, they were very vocal). This period saw the rise of politicians like Jarosław Kaczyński, Viktor Orbán, and Robert Fico, with political narratives increasingly invoking national interests, sovereignty, the concept of a Europe of nations, and a return to a limited European integration focused on the common market. In this part of Europe, such rhetoric found fertile ground. In countries recently freed from Soviet influence, sovereignty arguments were particularly resonant, leading to the slogan ‘Brussels is the modern-day Moscow’ being understood in certain social circles.

Euro-skeptical and essentially anti-EU stances were coupled with opposition to ‘externally imposed law’, contributing to the escalating crisis of the rule of law. From the euro-skeptics’ perspective, the positions of European institutions on common values and legal order principles, particularly the CJEU’s jurisprudence asserting the primacy of European regulations, became significant arguments in the anti-European narrative and in bolstering sovereignty values. This stage saw instances like the Polish Constitutional Tribunal’s unprecedented challenge to fundamental EU Treaty provisions from a national law standpoint (judgment of October 7, 2021, K3/21).

Third Phase: Mature Membership

The current phase experienced in some new Member States can be described as the beginning of mature EU membership. This process involves a gradual evolution of social attitudes towards integration processes and the manner of engaging in and shaping European policy. Poland’s situation exemplifies this change. After eight years of eurosceptic and authoritarian tendencies, the current Polish elites seem to better understand the complexities and challenges of European policy, the need to redefine European strategy, directions for integration, and the necessity of strengthening integration mechanisms, such as expanding majority voting and establishing a common defense policy.

Changes in attitudes are significantly influenced by the rule of law crisis, which paradoxically played a positive role by creating a strong impetus for better understanding among society and political elites of the significance of EU membership and the fundamental role of common principles and values. The lessons from the rule of law crisis can apply to all Member States, and its consequences affect the entire Union.

3. Impact on the EU judicial order

First, as demonstrated by Polish judges opposing breaches of judicial independence, skillful use of legal instruments within the European framework, especially preliminary rulings and appeals to common principles and values, can effectively protect against public authorities’ attempts to impose a fundamentally defective justice system.

Second, the long struggle with the rule of law crisis highlighted the strength and flexibility of the European order, which, in critical situations, is not defenseless but capable of activating a wide range of measures to protect the common European legal space. Crises often prompt the Court of Justice to adopt new lines of jurisprudence and principles, particularly related to Articles 2 and 19 of the TEU, starting with the landmark judgment in the Associação Sindical dos Juízes Portugueses case on 27 February 2018 (C-64/16). This ruling underscored the dual role of national judges as European judges, and CJEU jurisprudence on the rule of law reinforced the Court’s position as the constitutional court of the EU.

Third, part of the experience of two decades in an enlarged EU, including the years of rule of law deterioration, is the recognition that, in extreme or crisis situations, the EU’s ‘lifeline’ can be found in federalist instruments. The February 16, 2022 ruling on the Conditionality Mechanism (C-156/21 and C-157/21)unequivocally confirmed the concept of the EU’s constitutional identity based on Article 2, emphasising the existence of an autonomous EU legal order, with which Member States’ constitutional identities cannot conflict. This was a fundamental step in building the EU’s axiological coherence, and nothing fosters integration more than a community of values. The ruling’s context, linked to the necessary conditions for disbursing EU funds, including the Recovery Fund (Next Generation EU), itself an example of a federal instrument, created a shared responsibility for debt incurred jointly by all Member States.

Conclusion

Recent years have fostered a growing conviction among EU societies that building a stronger community, enhancing European solidarity, and cooperation does not threaten national distinctiveness or risk losing one’s constitutional identity in the European space. Twenty years of shared experiences in the EU suggest that the idea of European unity can coexist without contradiction with the idea of respecting the diversity of Member States.

Marek Safjan is a former judge at the Court of Justice of the European Union (2009 - 2024) and President of the Polish Constitutional Court (1998 - 2006).

The ‘large-scale’EU Enlargement and its Impact on EU Institutions

Bruno De Witte

During the years leading up to the large-scale EU enlargement of 2004, a lively debate emerged linking that enlargement with the need to adapt the Union’s institutional framework. No less than three Treaty revision processes took place in the years preceding the actual enlargement (Treaty of Amsterdam, Treaty of Nice, and the Constitutional Convention of 2002-3 leading eventually to the Lisbon Treaty). On each of those occasions, the need to adapt the EU’s institutions to the envisaged consequences of enlargement was a central issue.

The tone had been set already by the Copenhagen European Council of June 1993, at which the enlargement process was officially started by the European Council and some general conditions for accession were laid down. The Copenhagen conclusions specified that accession would depend not only on the political and economic performance and state of preparation of the candidate States, but also on the institutional state of preparation of the European Union. The European Council affirmed that ‘the Union’s capacity to absorb new members, while maintaining the momentum of European integration, is also an important consideration in the general interest of both the Union and the candidate countries’. Thereafter, internal reform of the decision-making capacity of the Union became seen as a precondition for enlargement: how to ensure that ‘more’ Member States would not result in ‘less’ EU capacity to act. So, a central goal of the institutional reforms of the Union in the period between the entry into force of the Maastricht Treaty (1993) and the adoption of the Lisbon Treaty (2007) was to prevent the Union’s decision-making capacity from being negatively affected by a major expansion of its membership.

The accession of new States affects the functioning of the EU’s institutional system in several ways. The new States are represented in each of the institutions of the EU. Enlargement makes the overall number of members of most institutions grow, with the risk of exceeding the appropriate size allowing for effective deliberation. This affects the Commission, the European Parliament and the Court of Justice to a lesser extent than the Council since those three institutions perform much of their work in smaller formats (such as the chambers of the Court and the committees of the EP). The Council, on the contrary, meets, both at the formal ministerial level and at all the preparatory stages, in a format providing for the representation of all Member States which, quite obviously, rendered the discussions more cumbersome after the 2004 enlargement than in the ‘cosy’ environment of the original Community of Six, or even the pre-2004 Union of Fifteen. The actual decision-making of the Council is most clearly affected when it has to decide according to the unanimity rule but the addition of multiple new members also complicates the ‘game’ of coalition-building for the purpose of assembling a qualified majority. Each new Member State also brings new practices of political and administrative culture, which again complicates (at least in a first period of adaptation) the informal patterns of EU decision-making.

During the Intergovernmental Conference that was to lead to the adoption of the Treaty of Amsterdam, there emerged a triangle of sensitive enlargement-related institutional questions: the size and composition of the Commission; the weighting of the votes of states when acting within the Council of Ministers; and the extension of qualified majority voting (rather than unanimity) to further fields of EU policy. A compromise on this triangle of issues was eventually reached only at the next IGC, the one leading to the Treaty of Nice, whose modest agenda was deliberately limited to the three institutional ‘left-overs’ from Amsterdam, as if a negotiated solution of these three issues were the only key to a successful institutional adaptation to the coming enlargement. The intra-EU condition for accession now appeared to be fulfilled, at least according to the governments of the EU countries. At the Nice European Council meeting of December 2000, they agreed on the text of the Treaty of Nice and stated, in an annexed Declaration on the Future of the Union, that ‘with ratification of the Treaty of Nice, the European Union will have completed the institutional changes necessary for the accession of new Member States’. The candidate countries received the assurance that their EU accession now depended on their own economic and political performance, and on the willingness of the EU States to recognise the quality of this performance, but no longer on the question whether the Union itself managed to put its own house in order.

The question whether the rather modest institutional reforms agreed at Amsterdam, Nice and Lisbon had equipped the European Union with the practical capacity to act after enlargement generally received a positive answer. Several studies conducted shortly after the enlargement highlighted that the new Member States had integrated the EU system rather smoothly without causing any disruption of the functioning of the institutions. In particular, the Commission undertook an internal reform that strengthened the role of its President and of a set of Vice-Presidents, which made the operation of the 27-member executive more manageable than what many had expected prior to the enlargement. There was also no evidence of collective action by the newcomers that would disrupt the habitual functioning of the Council, even though the rotating Council presidency now has a tougher task than before in reaching out to the 26 other delegations and accommodate their policy preferences. One can say, twenty years after the enlargement of 2004, that all the EU institutions have found ways to accommodate the larger membership. Also in the inter-institutional relations, new ways were found to preserve the EU’s decisionmaking capacity, not the least of which is the systematic recourse to trilogues in legislative decision-making.

The most obvious element of the EU’s institutional machinery of the Union that has not been sufficiently adjusted to ‘deal with the larger numbers’ is the preservation of unanimous decision-making as, still, an important mode of decision-making in the Council and European Council, as well as for Treaty revisions. We know that the Council rarely votes and that attempts are systematically made by the Commission and the Council Presidency to reach a consensus among all delegations, irrespective of whether the measure can be adopted by qualified majority or requires unanimity. However, it does regularly happen, nowadays, that Member State delegations are formally outvoted at a Council meeting or that they cease to oppose a decision when they see that a qualified majority has emerged. In policy areas subject to QMV, the Council, the Coreper and the working groups all very much operate ‘in the shadow of the vote’, so that states that find themselves in an isolated minority position sometimes accept a relatively unsatisfactory compromise proposal for fear of being outvoted. However, the unanimity rule is still

applicable for important policy decisions and even for routine matters such as foreign policy sanctions, and the formal veto power wielded by each country has become a much more unpredictable and obstructive weapon than in earlier epochs. It so happens that the Member State that currently makes the most obnoxious use of its veto power is Hungary, one of the States that joined in 2004. One cannot blame the enlargement process for this, but one can surely say that, if more Member States join the EU, abusive veto practices by single governments become more likely.

Bruno De Witte, Maastricht University.

SYMPOSIUM

SYMPOSIUM ON CLIMATE PROTECTION AS A EUROPEAN FUNDAMENTAL RIGHT UNDER THE ECHR AND BEYOND

Legal Standing in Climate Litigation before the ECtHR and the CJEU

Mario Pagano

Introduction

In the present Op-Ed (which represents a very preliminary reflection), I would like to deepen the topic of admissibility in climate change litigation and compare the different approaches of the European Court of Human Rights (ECtHR) and the Court of Justice of the EU (CJEU) when assessing locus standi of private applicants. In its judgments of the 9th of April 2024, the Strasbourg Court clarified that the issue of the ‘victim status’ of individuals on the one hand, and the one of legal standing of representatives who are acting on behalf of persons whose Convention rights are alleged to be violated on the other, are separate and distinguished (Klimaseniorinnen, application no. 53600/20, para. 496). However, satisfying such requirements is in any case crucial in order to get access to justice. In this contribution, it is argued that the main (substantive) difference in the interpretative methods of the two supranational courts when dealing with legal standing, lies is the evolving hermeneutic approach adopted by the ECtHR, compared to the static approach of the CJEU. For space constraints reasons, I will concentrate my analysis on locus standi in the aforementioned Klimaseniorinnen case of the ECtHR and on the 2021 Carvalho case of the CJEU (C-565/19 P).

In Klimaseniorinnen, the applicants –an association of senior women and four individual women over the age of 80– argued that increasing temperatures due to climate change result in severe health risks and increased mortality, especially for older women (including the applicants). They claimed that Switzerland is failing to fulfil its positive obligations under the ECHR, since the Swiss State is not doing enough to prevent a global temperature rise of more than 1.5°C. By doing so, the applicants argued that Switzerland is also failing to effectively protect their human rights.

Similarly, in Carvalho, the applicants (36 individuals and one association) challenged the 2018 EU climate package (including three EU legislative measures) under Article 263(4) TFEU, measures by which the EU sought to comply with the ‘nationally determined contributions’ (NDCs), as required by Article 4(2) of the Paris Agreement. In essence, the applicants in Carvalho maintained that the climate targets laid down in the contested measures were not sufficiently ambitious to preserve their fundamental rights. In the light of this, the EU judiciary was supposed to annul the contested legislative package and order the EU institutions to adopt measures requiring the Union to reduce its GHG emissions by 2030 by at least 50% to 60% compared to their 1990 levels.

Having briefly outlined the factual background of the two cases, and before delving into the comparison on legal standing, I will first highlight –in short– some key differences between the two courts when dealing with climate change litigation.

The climate in Strasbourg, the climate in Luxembourg

Scholars working on climate change litigation have certainly noticed the different ‘emphasis’ put by the ECtHR and the CJEU when dealing with climate change. The ECtHR cases were, since the very beginning, under the spotlight. Scholars and activists long awaited for the 9th of April 2024 as a new ‘doomsday’ (to quote the recently dismissed Italian climate case), a day to be highlighted with a marker on the calendar. Furthermore, the ECtHR decided to relinquish for the Grand Chamber in three key climate cases (including Klimaseniorinnen of course) and deliver the judgments for all of these on the same day. This deeply contributed to build ‘hype’ around the cases, which were treated with the attention and the specialty that is due to the most urgent and widespread threat of our times, that is climate change.

Conversely, climate litigation scholars and activists usually do not remember the 25th of March 2021 as a particularly salient day in their calendar (apart from the undersigned probably). On that day, the sixth chamber of the Court of Justice delivered its ruling dismissing the Carvalho case for lack of standing. Besides the efforts of the plaintiffs and the NGOs behind the case, very little was done by the EU judiciary to emphasise its contribution to the case law on climate change and the relevance of the judgment. No Advocate General provided an opinion on the case and the Grand Chamber was not involved to provide a broader and deeper assessment. A choice that culminated into a very short ruling, counting only 17 pages. Even nowadays, the Court’s final ruling is only available on the CURIA database in English and French and not in all the official languages of the EU. The two different approaches of the two courts are also reflected in the way these dealt with legal standing of the applicants.

Locus standi in climate litigation before the CJEU

In para. 479 of the Klimaseniorinnen judgment, the ECtHR captured the key difficulty of granting standing in the climate change context. Indeed, ‘[given] the nature of climate change and its various adverse effects and future risks, the number of persons affected, in different ways and to varying degrees, is indefinite. […] The need, in this context, for a special approach to victim status, and its delimitation, therefore arises from the fact that complaints may concern acts or omissions in respect of various types of general measures, the consequences of which are not limited to certain identifiable individuals or groups but affect the population more widely.’ Considering the widespread impact of climate change across society, how should thus courts protect citizens’ human rights from public authorities’ omissions on climate change, while ensuring the exclusion of actio popularis? This is, in essence, the key question that both, the ECtHR and the CJEU, were called upon to answer and that these courts treated in very different ways.

As our reader will know, the CJEU traditionally provides a very narrow interpretation of the standing requirements for private applicants laid down under Article 263(4) TFEU. A narrow interpretation better known under the name of ‘Plaumann test’ (C-25/62). Under this ‘test’, private applicants have to demonstrate to be ‘individually concerned’ by the contested measure, as if the contested measure addresses them individually by certain peculiar attributes or circumstances that differentiate the applicant from any other person. This is already very different from the ECtHR’s interpretation of the ‘victim status’ requirements, according to which the rigorous necessity

that the applicant must be personally and actually affected by the alleged violation of the Convention (which is normally the result of a State’s act or omission), ‘does not necessarily mean that the applicant [needs] to be personally targeted by the act or omission complained of’ (paras. 465-466). On the opposite, in Carvalho, the Court of Justice confirmed its Plaumann formula even in the climate change context.

Indeed, the EU judiciary argued that ‘the fact that the effects of climate change may be different for one person than they are for another does not mean that, for that reason, there exists standing to bring an action against a measure of general application. […] [A] different approach would have the result of rendering the requirements of the fourth paragraph of Article 263 TFEU meaningless and of creating locus standi for all without the criterion of individual concern within the meaning of [Plaumann]’ (para. 37). Here the Court of Justice showed its fear of softening the standing requirements, which might lead – in its view – to a scenario of actio popularis, where everyone is basically entitled to bring a claim to the Court over EU climate policy. In this regard, the Court underlined that, ‘the fact that the appellants, owing to the alleged circumstances, are affected differently by climate change is not in itself sufficient to establish the standing of those appellants to bring an action for annulment of a measure of general application such as the acts at issue’ (para. 40). Indeed, the Court emphasised that, in order to be granted standing, the applicants have to show a (very narrow) link between the contested act and their legal sphere, not between climate change and their legal sphere (para. 49).

This reasoning of the Court de facto excludes any possibility for climate change litigation under Article 263(4) TFEU (except for the actions brought under the new Aarhus Regulation – a topic that, however, falls out of the scope of this contribution. On this point, see for instance NGOs’ requests related to the EU Taxonomy Regulation). Since 1963, the Court of Justice reiterates the same reading of the Treaty provisions on access to justice in a very static and rigid way. It is not my intention now to delve into the rich literature trying to explain ‘why’ the Court does not abandon the Plaumann formula, but –apart from that– EU law scholars perfectly know that times change, but Plaumann doesn’t. This being said, how did the ECtHR engage with this same ‘fear’ of actio popularis in Klimaseniorinnen?

Locus standi in climate litigation before the ECtHR

In Klimaseniorinnen, the Strasbourg Court recalled that ‘the issue of victim status must be interpreted in an evolutive manner in the light of conditions in contemporary society and that any excessively formalistic interpretation of that concept would make protection of the rights guaranteed by the Convention ineffectual and illusory’ (para. 482). The analysis of the Court’s openness to adapting its interpretation to the changing times – and in particular to the climate change context – is fascinating. While the CJEU showed its stillness toward standing – regardless of the evolution of society – the ECtHR took a very different pathway.

Indeed, in undertaking its balance between granting effective judicial protection of the Convention’s human rights threatened by climate change on the one hand, and ensuring the avoidance of actio popularis on the other, the ECtHR did not shut down its doors to citizens and NGOs litigating in the climate context. On the opposite, it worked on developing new legal ‘filters’ and adapted its former criteria to assess the ‘victim status’ of applicants

to the special features of climate change. ‘[Having] regard to the special features of climate change, when determining the criteria for victim status – which is premised on the existence of a real risk of a ‘direct impact’ on the applicant […] – the Court will rely on distinguishing criteria such as a particular level and severity of the risk of adverse consequences of climate change affecting the individual(s) in question […], taking into account the pressing nature of their need for individual protection’ (para. 486). In the light of this, the Strasbourg Court (see also Carême v. France, application no. 7189/21, para. 76) developed the following criteria for assessing the victim status of individual applicants: (a) the applicant must be subject to a high intensity of exposure to the adverse effects of climate change, that is, the level and severity of (the risk of) adverse consequences of governmental action or inaction affecting the applicant must be significant; and (b) there must be a pressing need to ensure the applicant’s individual protection, owing to the absence or inadequacy of any reasonable measures to reduce harm (para. 487). This while also recalling that ‘the threshold for fulfilling these criteria is especially high’ (para. 488) and these were actually not met by the individual women included among the applicants (para. 535).

Besides the victim status requirements for individuals, the ECtHR also reviewed its standing requirements for associations and NGOs in the light of the special features of climate change. Indeed, the Court first recalled the special role that associations and NGOs play in modern-day societies: ‘when citizens are confronted with particularly complex administrative decisions, recourse to collective bodies such as associations is one of the accessible means, sometimes the only means, available to them whereby they can defend their particular interests effectively’ (para. 489) Furthermore, the Strasbourg Court stressed that this is especially true in the environmental and climate change context, where ‘intergenerational burden-sharing assumes particular importance […], collective action through associations or other interest groups may be one of the only means through which the voice of those at a distinct representational disadvantage can be heard and through which they can seek to influence the relevant decision-making processes’ (para. 489). This aspect was particularly emphasised by the Court with several references also to the Aarhus Convention (para. 491). In the light of this, the ECtHR put forward the factors to be considered when assessing the standing of associations in the climate context. Indeed, the association in question must be: (a) lawfully established in the jurisdiction concerned or have standing to act there; (b) able to demonstrate that it pursues a dedicated purpose in accordance with its statutory objectives in the defence of the human rights of its members or other affected individuals within the jurisdiction concerned, whether limited to or including collective action for the protection of those rights against the threats arising from climate change; and (c) able to demonstrate that it can be regarded as genuinely qualified and representative to act on behalf of members or other affected individuals within the jurisdiction who are subject to specific threats or adverse effects of climate change on their lives, health or well-being as protected under the Convention (para. 502). The ECtHR also specified that, in assessing such factors, the Court will have regard, for instance, ‘to the purpose for which the association was established, that it is of non-profit character, the nature and extent of its activities within the relevant jurisdiction, its membership and representativeness, its principles and transparency of governance and whether on the whole, in the particular circumstances of a case, the grant of such standing is in the interests of the proper administration of justice’ (para. 502). The Court found that the association ‘Verein Klimaseniorinnen’ - included among the applicants of the case - met such requirements and was thus granted standing (para. 526). Here below, I will now outline my final considerations.

Conclusion

In this short contribution, I showed how the ECtHR and the CJEU approached in very different ways the issue of legal standing in climate litigation. Static and conservative is the approach of the CJEU; adaptive and dynamic, the one of the ECtHR. Indeed, the two major European courts have a different history, different procedures to get to the court, different legal systems, different institutional positions, and different mandates. However, the legal issues on which they were called upon to rule in the climate context definitely showed some similarities. One in particular, inevitably intertwined with the issue of standing: how should courts protect citizens’ human rights from public authorities’ omissions on climate change while ensuring the exclusion of actio popularis? To this question, the two judiciaries provided two different answers. For the CJEU the response so far has been no direct access to justice at all for private applicants in the climate context (apart from the new Aarhus Regulation cases, see above); while for the ECtHR the response has been the development of innovative criteria acting as ‘filters’ to be applied with rigour on a case-by-case basis. Of course, when taking such a big picture, we also have to take into account that – procedurally speaking – one court acts as a last instance court on human rights issues (having national courts already acting as ‘filters’), while the other one can also be addressed directly by different public and private actors, inter alia under Article 263 TFEU, with no involvement of national courts. The preliminary reference procedure remains – according to the CJEU – the true ‘gap filler’ for the narrow opportunities for access to justice at the EU level. Time will tell us if this procedure will effectively be used by citizens and NGOs also in the climate change context. My final view is that these major procedural differences between the ECtHR and the CJEU are crucial in order to understand the different hermeneutic approaches of the two courts on legal standing. However, further research is certainly needed to provide more clarity on this aspect.

Dr Mario Pagano works as a case handler at DG ENV of the European Commission. Mario holds a PhD in EU law from the European University Institute of Florence, where he wrote his dissertation on environmental NGOs and direct access to justice before the CJEU. Prior to joining the Commission, Mario worked as a postdoctoral researcher at the University of Amsterdam.

The views and opinions expressed in this text belong solely to the author, and do not reflect the view of the European Commission.

SUGGESTED CITATION: Pagano, M.; “Legal Standing in Climate Litigation before the ECtHR and the CJEU”, EU Law Live, 28/05/2024, https:// eulawlive.com/op-ed-legal-standing-in-climate-litigation-before-the-ecthr-and-the-cjeu-by-mario-pagano/

THE LONG READ

Judicial Cooperation between European Prosecutors and the Incomplete Federalisation of EU Criminal Procedure CJEU ruling in G. K. e.a. (Parquet européen)

Jacob Öberg 1

Introduction

The seminal ruling of the Court of Justice in G.K. e.a (Parquet européen)2 addresses one of the key elements of the EPPO Regulation3 which is the mechanism for cross-border cooperation between European Delegated Prosecutors (EDPs). This mechanism is designed to enable prosecutors in different Member States to cooperate in an effective manner limiting judicial authorisation for investigation measures undertaken in a certain State at the request of an EDP in a different State to one instance only (‘single judicial authorisation’).4 However, the wording of the EPPO Regulation is far from conclusive on this aspect Article 31 being in reality an awkward compromise balancing Member States’ views on the scope of judicial review of assigned investigation measures in cross-border cases.5

To address these concerns, the EPPO College adopted a decision in 2022 containing guidelines on the application of Article 31 of the Regulation rejecting the notion of ‘single judicial authorisation’ accepting some form of judicial review in both the State of the handling EDP and the State of the assisting EDP. 6 The EPPO College argued that the notion of a ‘single judicial authorisation’ would create a serious legal gap because competent judicial authorities would not be able to assess the substantive reasons of the measure thus potentially infringing 47 of the EU Charter due to the absence of sufficient legal remedies.7

This significant provision of the new EPPO Regulation was put to test before the national courts at the case at hand. In the ruling of the Court of Justice at issue, a German EDP, had opened an investigation into large-scale tax fraud where BOD, as well as its directors, G.K. and S.L., were being prosecuted for having imported into the EU biodiesel of US origin by infringing, by means of false declarations, customs legislation and causing damage allegedly amounting to EUR 1 295 000. Within the context of this investigation an Austrian assisting EDP was tasked with ordering searches and seizures at the business premises of B.O.D. and its parent company and at the homes of G.K. and S.L., all located in Austria thus requesting

1. Professor in EU Law, University of Southern Denmark.

2. Judgment of 21 December 2023, C-281/22, G. K. and Others (Parquet européen), EU:C:2023:1018.

3. Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’) [2017] OJ L 283/1.

4. Ibid, recital 72.

5. H. H. Hernfeld, ‘Efficiency contra legem? Remarks on the Advocate General’s Opinion Delivered on 22 June 2023 in Case C-281/22 G.K. and Others (Parquet européen)’, (2023) Eurocrim 229, available here, pp. 233-235.

6. See Decision of the College of European Public Prosecutor’s Office of 26 January Adopting Guidelines of the College of the EPPO on the Application of Article 31 of Regulation (EU) 2017 /1939, paras. 6-11, 13-23.

7. Ibid.

the Austrian courts to authorise those measures which those courts agreed to. G.K., B.O.D. and S.L. subsequently brought actions before the Oberlandesgericht Wien, the referring court, against the decisions of the Austrian courts authorising the measures at issue.8 In light of this, the referring court asked the Court of Justice whether the EPPO Regulation should be construed to mean that the review conducted in the State of the assisting EDP where an assigned investigation measure requires judicial authorisation may relate both to matters concerning the justification and adoption of that measure and to matters concerning its enforcement.

Opinion of Advocate General Ćapeta

Advocate General Ćapeta presented two different options that had been discussed during the EPPO negotiations on how the cross-border mechanism in Article 31 of the Regulation should be designed. The Austrian and German Governments argued that if the assisting EDP’s national law requires prior judicial authorisation for carrying out an investigative measure such authorisation should entail a full review not only of the procedural but also substantive aspects justifying the measure in the first place (Option 1). The EPPO, the Commission and several other Member States suggested another reading with a clear distinction of the responsibilities of judicial authorities suggesting that if the law of the assisting EDP’s Member State requires a judicial authorisation of an investigative measure such an authorisation may entail only a review of the formal aspects relating to the execution of the measure (Option 2). The AG made a careful reading of the wording, context and history of Article 31 arguing that Option 1 would undermine the objectives of the EPPO Regulation which is to create an efficient system in the fight against crimes affecting the EU’s financial interest. The AG argued that the Court should choose Option 2 entailing that Article 31(3) of the Regulation should be construed as allowing the court of the Member State of the assisting EDP to review only the aspects related to the execution of a measure while accepting the assessment by the handling EDP that the measure is justified.9 The AG responded to the concerns that such an approach might entail less effective fundamental rights protections for defendants by arguing that the EPPO Regulation overall entails a high protection of fundamental rights at least at the level of the Charter of Fundamental Rights and the European Convention of Fundamental Rights. Even if it does not provide for the possibility of a refusal of the handling EDP’s decision that it is necessary to undertake an investigation measure in another EU Member State, it contains various safeguards guaranteeing the protection of fundamental rights.10

Judgment

According to the Court the EPPO regulation aimed to establish a mechanism ensuring a degree of efficiency of crossborder investigations conducted by the EPPO as high as that resulting from the application of the procedures laid down under the EU system of judicial cooperation in criminal matters. 11 The Court noted that the distinction in the EPPO Regulation between the justification and adoption of an assigned investigation measure and its enforcement reflects the

8. C-281/22, G. K. and Others (Parquet européen), paras. 26-37.

9. See Opinion of AG Ćapeta, of 22 June 2023, C-281/22, G. K., and others. paras. 71-73.

10. Opinion of AG Ćapeta, paras. 99-101, 114-115.

11. Also referring to other relevant rulings in the area of judicial cooperation in criminal matters, see eg Judgment of 16 December 2021, C-724/19, Spetsializirana prokuratura EU:C:2021:1020, para. 53.

logic underlying the system of judicial cooperation in criminal matters which is based on the principle of mutual trust. An interpretation of the Regulation according to which the grant of the judicial authorisation would be subject to an examination by the competent authority of the State of the assisting EDP of the elements relating to the justification and adoption of the assigned measure concerned would undermine the objective pursued by the EPPO Regulation. To carry out such an examination, the competent authority of the State of the assisting EDP would have to examine the entire case file, which would have to be forwarded to it and translated. Moreover, since the justification of an assigned investigation measure fall within the scope of the law of the State of the handling EDP the authorities of the State of the assisting EDP would have to apply the law of the first State. All this led the Court to conclude that any review of the judicial authorisation required under the law of the State of the assisting EDP may only related to elements connected with the enforcement of the measure. It was nonetheless for the State of the handling EDP to provide for a prior judicial review of the conditions relating to the justification of an assigned investigation measure in light of the Charter of Fundamental Rights.12 In respect of measures which seriously interfere with fundamental rights such as searches of private homes and intrusive measures relating to personal property and asset freezing13 the State of the handling EDP must provide for sufficient safeguards to ensure the legality of such measures.14 The Court also noted that the EPPO in all its activities must respect the right to a fair trial and the rights of defence of suspects and accused persons,15 who are, at a minimum, to have the procedural rights provided for in EU law.16

Assessment and analysis

The judgment requires some observations.

First, the ruling suggests that the notion of single judicial authorisation17 has been dealt a blow as we now always will have two forms of judicial control in a cross-border EPPO investigation: one prior on the merits in the State of the handling EDP and one formal in the State of the assisting EDP.18 In principle, the Court largely followed the Opinion by AG Ćapeta to the extent that the review conducted in the State of the assisting EDP where a measure requires judicial authorisation may relate only to matters concerning the enforcement of that measure.19 Nonetheless, the Court did not fully accept the AG’s premise that the assisting EDP must accept the assessment by the handling EDP that the measure is justified regardless of whether the latter is approved by prior judicial authorisation in the State of the handling EDP. In this instance, the Court underlined that the State of the handling EDP must provide for a prior judicial review of the conditions relating to the justification of an assigned measure.20

12. Art. 51 of the Charter.

13. EPPO Regulation (n 2), Arts. 30(1)(a) and (d).

14. C-281/22, G. K. and Others (Parquet européen), paras. 43-73.

15. See EPPO Regulation, Arts. 41 and 42.

16. C-281/22 G. K. and Others (Parquet européen), EU:C:2023:510, para. 75.

17. EPPO Regulation (n 2), recital 72.

18. N, Franssen, ‘The judgment in G.K. e.a. (parquet européen) brought the EPPO a pre-Christmas tiding of comfort and joy but will that feeling last?’, European Law Blog, Blogposts 1/2024, 15 January 2024. Available here

19. C-281/22 G. K. and Others (Parquet européen), EU:C:2023:510, Opinion by AG Ćapeta.

20. C-281/22 G. K. and Others (Parquet européen), paras. 73-74.

Leaving this aside for the moment, is the Court’s reading of the Regulation justified on the merits? From both a contextual and literal perspective of Article 31, the Court’s ruling takes an awkward position since limiting review by assisting EDPs to review of enforcement makes Article 31(3) of the Regulation largely superfluous. According to the Court’s reading of Article 31, it would always be clear that it is the law of the handling EDP’s State that regulates the need for judicial authorisation of a specific investigative measure. Article 31(3) only makes sense if it changes the rule expressed in Article 31(2) in a situation when the law of the State of the assisting EDP also requires judicial authorisation.21 On this point the AG however contended that Article 31(3) can be given a meaning as expressing the choice of the applicable legal order specifically for judicial authorisation of an assigned measure, even if the same result would be reached by applying Article 31(2). Expressing this rule separately might have been perceived as necessary due to the difficulties that that precise issue presented during the negotiations.22

Nonetheless, it appears that a joint reading of Articles 31(2) and 31(3) do not unequivocally express that there is a distinction of responsibilities where justification for an assigned investigative measure lies with the handling EDP and enforcement of the measure rests with the assisting EDP. There is some support in Article 31(2) which states that the ‘justification and adoption of such measures shall be governed by the law of the Member States’ of the handling EDP, but nothing is explicitly prescribed about the enforcement. It rather seems that when Article 31(3) of the Regulation speaks of ‘judicial authorisation for the measure’ …. ‘required under the law of’ the State of the assisting EDP it also refers to the substantive aspects of the measure.

The legislative history for the EPPO Regulation is inconclusive on this aspect. According to the Austrian Government, it was clear from that history that most of the Member States were aware of the problems that would arise due to the conflicting relationship between the second and third paragraphs of Article 31. However, the joint proposal of the Austrian and German Governments that the problem be resolved by recourse to the mutual recognition model was not accepted in the final text of the EPPO Regulation. It is, therefore, clear according to them that Article 31(3) does not require the courts of the State of the assisting EDP to recognise the decision of the handling EDP that an investigative measure in the State of the assisting EDP is necessary. Rather, that provision requires the court of the State in which the measure is to be executed to check the legality of the measure, including its justification.23 The Commission’s original 2013 proposal had suggested that authorisation for assigned measures would only be required by the competent judicial authority of the State where they are to be carried out; ie the State of the assisting EDP.24 At the hearing, the Commission justified its new amended position explaining that the 2013 Proposal was drafted before the EIO Directive came into force. That Directive provides that the justification for a cross-border investigation measure is a matter for the issuing State and may only be challenged in the courts of that State and Commission admitted that that solution had proved to function well in practice.25

21. Opinion of AG Ćapeta, para. 47.

22. Opinion of AG Ćapeta, para. 70.

23. C-281/22 G. K. and Others (Parquet européen), Opinion by AG Ćapeta, paras. 60-62.

24. Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office COM (2013) 534 final, Art. 26 (4).

25. Opinion of AG Ćapeta, paras. 60-62.

Nonetheless on principled terms, it seems that the Court’s solution makes sense. Given the objectives of the EPPO Regulation – which is primarily to enhance the effectiveness of cross-border proceedings – it would clearly have been very cumbersome to require full substantive judicial review of the assigned measure requiring authorisation in both the State of the handling EDP and the State of the assisting EDP. The EPPO should thus have at its disposal the tools necessary for achieving the objective of efficiently fighting crimes affecting the EU budget. In any case, cross-border investigations conducted by the EPPO could not be interpreted as being subject to conditions more burdensome than what is required under the EIO Directive. There are furthermore logistical difficulties of transferring and translating large amounts of documents that pertain to the file of the case. Moreover, entrusting the justification of the investigative measure to the law of the State of the handling EDP and the courts of that State is in line with the fact that those courts would have all the requisite material for a full substantive review. Finally, the proposed reading according to which the justification of the measure is always a matter for the law of the State of the handling EDP prevents conflicting decisions regarding the justification of the measure in cases where several States are involved in the gathering of evidence.26 Under the current version of the Regulation, assisting EDP’s judicial authorities must be conferred with certain judicial review powers.27 It is plausible to argue – with a lot of work being done by the 2nd sentence in Article 31(2) of the Regulation – that one could imagine a distinction being made between the enforcement and justification and adoption of the measure.28 This is a reasonable compromise between the idea of a ‘single judicial authorisation’ (with unconditional mutual trust and emphasis on effectiveness) and the respect of national legal diversity and fundamental rights.29

What are the key implications of the ruling? First of it seems clear that not all participating Member States’s implementing legislation are in line with the ruling entailing that those States thus must review their legislation. Member States that had foreseen full judicial review by a court in the State of the assisting EDP,30 will need to limit that role to the enforcement of the investigation measure. Those States will also have to ensure that prior judicial review undertaken in the State of the handling EDP is recognised as a trustworthy form of judicial control on the merits of the case thus allowing the assigned measure to be carried out on their territory.31

The implications of the ruling may also put the EPPO in a difficult position in respect of its ongoing investigations and appeals following convictions where defence lawyers claim that the evidence has not been gathered in line with the procedure foreseen by the CJEU. The sensible proposal here is that the Commission propose to Member States to amend the EPPO Regulation to give more certainty for the delegated prosecutors and national courts in how to construe this provision. While it is possible to align the Court’s ruling with the wording of the EPPO Regulation,32 the text of the provision could be clarified on this aspect. The need for prior judicial review in the State of the handling EDP should be articulated clearly in the Regulation to ensure that practitioners can apply this provision in line with the ruling of the

26. See Opinion of AG Ćapeta, paras. 57-59.

27. See EPPO Regulation (n 2), Art. 31 (3).

28. See Opinion of AG Ćapeta, paras. 48-53.

29. See Art. 67(1) and 67(3), 82 TFEU listing these as fundamental objectives of the Area of Freedom, Security and Justice.

30. Austria and Germany for example.

31. See Franssen (n 12).

32. H. H. Herrnfeld, ‘Efficiency contra legem? Remarks on the Advocate General’s Opinion Delivered on 22 June 2023 in Case C-281/22 G.K. and Others (Parquet européen)’, (2023) Eurocrim 229, available here

Court. Article 31 offers a crucial framework for cross-border cooperation between EDPs enabling the EPPO to operate effectively across borders in its fight against transnational crime against the EU’s financial interests.33

This requires us to think more broadly on the EPPO Regulation and the potential need for EU harmonisation in this area. While the establishment of the EPPO is a welcome step towards a ‘federalisation’ of EU criminal law in the specific area of crimes against the EU budget,34 the EPPO cannot function effectively with some degree of harmonisation of national criminal procedures. The judgment at hand highlights the implications of this incomplete centralisation of national criminal procedures which makes it more cumbersome for the EPPO to fulfil its task of combating crimes against the EU’s financial interests effectively.35

The soundest proposal in this respect is to accept the idea of a ‘single judicial authorisation’, i.e., that an investigative measure only needs to be authorised and reviewed in one State and by one judicial authority. However, AG Ćapeta underlined in her opinion that this notion presumes the operation of the logic behind mutual recognition which do not function in the area of criminal law with the same logic as in the internal market context. The object of recognition here is sovereign individual decisions of Member States, where the monopoly of force of one Member State is put into service in another Member State and where individuals become the object (rather than the subject) of free movement between Member States.36 For mutual recognition thus to work in the field of EPPO’s cross-border cooperation, a high level of mutual trust is required since the EDPs have to rely for each cross-border situation on the laws of one of the Member States involved which are then to be trusted by the other Member State That trust relates to the other State’s commitment and duty to protect the fundamental rights of the individual defendant involved in the cross-border proceedings.37

Considering all this, it is most appropriate to confer the responsibility for reviewing the authorisation of the investigative measure on the judicial authorities of the handling EDP which is in general the prosecutor managing the investigation. If no judicial authorisation is required for the measure, those duties should then fall on the judicial authorities in the State of the assisting delegated prosecutor to ensure that there is at least some form of judicial scrutiny.38 However, in the absence of harmonisation and the limits of mutual recognition in this area, fundamental rights of suspects and accused persons must be guaranteed in a context in which the EPPO borrows a variety of national substantive and procedural criminal rules, such as in the case of cross-border investigation. This follows from Article 42(1) of the EPPO Regulation which requires that judicial review of investigation measures is always available. Therefore, if there was no prior judicial review, or if the combined application of two legal systems (one for the justification of the measure and the other for its execution)

33. See Franssen (n 30).

34. E. Herlin-Karnell and C. Gomez Jara, ‘Prosecuting EU Financial Crimes: The European Public Prosecutor’s Office in Comparison to the US Federal Regime’, 19 German Law Journal (2018) p. 119

35. See J Öberg, ‘The European Public Prosecutor: Quintessential supranational criminal law?’ 28 (2021) Maastricht Journal of European and Comparative Law 164.

36. Lavenex, S, ‘Mutual recognition and the monopoly of force: limits of the single market analogy’, 14 Journal of European Public Policy (2007) p. 76; Öberg J. Trust in the Law? Mutual Recognition as a Justification to Domestic Criminal Procedure, 16 European Constitutional Law Review (2020), 33-62.

37. Opinion of AG Ćapeta, points 84, 87-89.

38. EPPO Regulation (n 2), recital 72.

led to some oversight in the protection of fundamental rights, a subsequent judicial review of the measure could serve as a correction to any potential violation.39

SUGGESTED CITATION: Jacob Öberg; “Judicial Cooperation between European Prosecutors and the Incomplete Federalisation of EU Criminal Procedure CJEU ruling in G. K. e.a. (Parquet européen)”, https://eulawlive.com/weekend-edition/weekend-edition-no189/

39. See eg Opinion of AG Richard de la Tour in MM (C-414/20 PPU, EU:C:2020:1009, para 133) where he explained that effective judicial protection demands that the conditions under which an EAW was issued must be subject to review at the stage of the criminal proceedings subsequent to surrender if no remedy was provided for at an earlier stage.

HIGHLIGHT F THE WEEK S O

Council adopts new regulation on substances of human origin

Monday 27 May

New rules aimed at improving the safety and quality of blood, tissues and cells used in healthcare and facilitating cross-border circulation of these substances in the EU were adopted by the Council: Regulation on substances of human origin (SoHO).

Read on EU Law Live

Report addressing the inconsistent issuance and regulation of ‘virtual IBANs’, published by EBA

Monday 27 May

The European Banking Authority (EBA) published a report addressing the inconsistent issuance and regulation of ‘virtual IBANs’ (vIBANs) across the EU.

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Commission issues ‘yellow card’ to Senegal regarding its insufficient fight against illegal, unreported and unregulated fishing

Monday 27 May

The Commission notified the government of Senegal of the need to intensify its fight against Illegal, Unreported and Unregulated (IUU) fishing.

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Council approves the ‘net-zero industry act’

Monday 27 May

The Council officially adopted the regulation known as the ‘net-zero industry act,’ which aims to strengthen Europe’s netzero technology manufacturing ecosystem.

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Council adopts a regulation on tracking and reducing methane emissions

Monday 27 May

The Council of the European Union adopted a regulation aimed at tracking and reducing methane emissions as part of the ‘Fit for 55’ package, which strives for climate neutrality by 2050.

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Ecodesign regulation, adopted by Council

Monday 27 May

The Council of the EU adopted the ecodesign regulation, which establishes sustainability requirements for a broad range of products sold in the EU, replacing the existing ecodesign directive.

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Evaluation of the Motor Vehicle Block Exemption Regulation: Commission seeks feedback from interested parties

Monday 27 May

The European Commission launched a Call for evidence to seek feedback on the scope and content of its evaluation of the Motor Vehicle Block Exemption Regulation, as amended in April 2023 (‘MVBER’), and of the related Supplementary Guidelines, also as amended in April 2023 (‘SGL’).

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Council strengthens anti-trafficking law: exploitation of surrogacy, forced marriage and illegal adoption, forms of exploitation

Monday 27 May

The Council of the European Union adopted a directive enhancing the EU’s anti-trafficking law by including exploitation through surrogacy, forced marriage, and illegal adoption as recognized forms of exploitation.

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EU imposes sanctions on Russia for human rights violations after Navalny’s death

Tuesday 28 May

The European Union established a new framework for restrictive measures targeting those responsible for serious human rights violations, repression of civil society, and undermining democracy in Russia.

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Commission Implementing Regulation concerning the implementation of the interoperable interface of the Safety Gate Portal for providers of online marketplaces, published in OJ

Tuesday 28 May

The European Commission issued Implementing Regulation (EU) 2024/1459 on May 27, 2024, establishing rules for the application of Regulation (EU) 2023/988 concerning the interoperable interface of the Safety Gate Portal for online marketplace providers.

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EU and Australia sign bilateral partnership on sustainable critical and strategic minerals

Wednesday 29 May

The EU and Australia signed a Memorandum of Understanding (MoU), according to which they establish bilateral cooperation on sustainable critical and strategic minerals.

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ECtHR: Violations of Article 8 ECHR in Pietrzak and Bychawska-Siniarska and Others v. Poland concerning five Polish nationals challenging the country’s secret surveillance laws

Wednesday 29 May

In Pietrzak and Bychawska-Siniarska and Others v. Poland (applications nos. 72038/17 and 25237/18) the European Court of Human Rights found three violations of Article 8 (right to respect for private and family life and correspondence) of the European Convention on Human Rights.

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Important Project of Common European Interest: Commission approves €1.4 billion of State aid to support the hydrogen value chain

Wednesday 29 May

The European Commission approved, under EU State aid rules, a fourth Important Project of Common European Interest (‘IPCEI’) to support research, innovation and the first industrial deployment in the hydrogen value chain.

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Two new directives concerning standards for equality bodies, published in OJ

Wednesday 29 May

Official publication was made of Council Directive (EU) 2024/1499 of 7 May 2024 on standards for equality bodies in the field of equal treatment between persons irrespective of their racial or ethnic origin, equal treatment in matters of employment and occupation between persons irrespective of their religion or belief, disability, age or sexual orientation, equal treatment between women and men in matters of social security and in the access to and supply of goods and services.

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General Court upholds penalty for Poland in Turów mine dispute

Wednesday 29 May

The General Court upheld Poland’s obligation to pay the daily penalty imposed by the European Commission regarding the Turów lignite mine dispute: Cases T-200/22 and T-314/22 | Poland v Commission.

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General Court annuls SRB decisions on ex ante contributions calculation concerning Hypo Vorarlberg Bank and Portigon AG

Wednesday 29 May

The General Court of the European Union rendered a judgment in Case T-395/22, brought by Hypo Vorarlberg Bank against the Single Resolution Board (SRB) regarding the calculation of 2022 ex-ante contributions to the Single Resolution Fund (SRF).

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General Court annuls decision of Council’s appointing authority regarding imposition of disciplinary penalty of reprimand under the Staff Regulations

Wednesday 29 May

The General Court, sitting in its Extended Composition formation,d elivered its judgment in a case concerning the applicant’s claims that the Court should annul certain decisions of the appointing authority of the Council of the EU: Canel Ferreiro v Council (T-766/22).

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AI Office established within the Commission to foster safe and beneficial use of AI in the EU

Wednesday 29 May

The Commission unveiled the AI Office, the aim of which is to enable the future development, deployment and use of AI in a way that fosters societal and economic benefits and innovation, while mitigating risks.

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European Court of Auditors: EU should step up efforts to achieve AI ambition

Wednesday 29 May

The European Court of Auditors (‘ECA’) published its Special Report 08/2024, by which it highlights the need for stronger governance and increased investment to move forward with the EU’s ambition to create a sound AI ecosystem.

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Commission closes Article 7(1) TEU procedure for Poland after rule of law improvements

Wednesday 29 May

The European Commission decided to close the Article 7(1) TEU procedure for Poland after withdrawing its reasoned proposal that initiated the process in 2017.

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Commission Delegated Regulation (EU) 2024/1506 specifying certain criteria for classifying asset-referenced tokens and e-money tokens as significant, published in OJ

Thursday 30 May

Official publication was made of Commission Delegated Regulation (EU) 2024/1506 of 22 February 2024 supplementing Regulation (EU) 2023/1114 of the European Parliament and of the Council by specifying certain criteria for classifying asset-referenced tokens and e-money tokens as significant.

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Procedural rules for EBA’s enforcement of fines on significant token issuers, published in OJ

Thursday 30 May

The European Commission’s Delegated Regulation (EU) 2024/1504, issued on 22 February 2024, outlines procedural rules for the European Banking Authority (EBA) in imposing fines and periodic penalty payments on issuers of significant assetreferenced tokens and e-money tokens.

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Online orders: order button must clearly indicate payment obligation, Court of Justice ruled

Thursday 30 May

The European Court of Justice clarified the obligations of online traders regarding consumer payment disclosures. Specifically, any order button or similar function on a website must clearly indicate that by clicking it, the consumer assumes an obligation to pay.

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Court of Justice rules on tax advantages for cross-border workers under EU-Switzerland agreement

Thursday 30 May

The Court of Justice issued a ruling in Case C-627/22, AB v. Finanzamt Köln-Süd, addressing the tax treatment of an EU worker who relocated to Switzerland while maintaining employment in their home country.

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Court of Justice: Italy cannot impose additional obligations on service providers established in other Member States, which are not imposed in the Member State of establishment

Thursday 30 May

The Court of Justice delivered its judgment in Airbnb Ireland; Amazon Services Europe (Joined cases C-662/22; C-667/22, Expedia (C-663/22), Google Ireland; Eg Vacation Rentals Ireland (Joined cases C-664/22; C-666/22), Amazon Services Europe (C-665/22).

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AG Ćapeta: Court of Justice should find that Malta’s ‘Finches Program’ failed to comply with Articles 5, 8(1) and 9(1) of the Birds Directive

Thursday 30 May

Advocate General Ćapeta delivered her Opinion in Commission v. Malta (C-23/23), a case concerning an infringement action relating to Malta’s alleged failure to comply with the Birds Directive (Directive 2009/147/ EC).

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Council adopts new legislative package on anti-money laundering

Thursday 30 May

The Council adopted a package of new anti-money-laundering rules that will protect EU citizens and the EU’s financial system against money laundering and the financing of terrorism.

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New rules to increase banking sector’s resilience, adopted by Council

Thursday 30 May

The Council adopted new rules aimed at making banks operating in the EU more resilient to possible economic shocks.

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Harley-Davidson v. Commission: AG Kokott interprets anti-circumvention mechanism in Article 33 of Delegated Regulation 2015/2446 in the context of additional tariffs on ‘typical’ goods from the US

Thursday 30 May

Advocate General Kokott delivered her Opinion in Harley-Davidson Europe and Neovia Logistics Services International v. Commission (C-297/23 P), a case concerning a dispute going back to the trade dispute between the US and the EU, in which both sides had imposed additional customs duties on certain goods of the other side.

Read on EU Law Live

AG Emiliou: The sole fact that a country has invoked Article 15 ECHR does not preclude its classification as a safe country of origin within the meaning of Directive 2013/32

Thursday 30 May

Advocate General Emiliou delivered his Opinion in Ministerstvo vnitra České republiky (C-406/22), a request for a preliminary ruling from the Regional Court in Brno (Czech Republic) concerning the interpretation of Directive 2013/32/EU on common procedures for granting and withdrawing international protection.

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Court of Justice dismisses appeal against General Court’s judgment concerning State aid granted to Finnair

Thursday 30 May

The Court of Justice delivered its judgment in a case concerning an appeal, by which Ryanair DAC sought to have set aside the judgment of the General Court, Ryanair v Commission (Finnair I; COVID-19) (T-388/20), where the General Court dismissed its action for annulment of Commission Decision C(2020) 3387 final of 18 May 2020 on State aid SA.56809 (2020/N) – Finland – COVID-19: State loan guarantee for Finnair: Ryanair v Commission (C-353/21 P).

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AG Medina interprets obligations imposed, by the GDPR, upon national agencies responsible for keeping Member States’ national commercial registers

Thursday 30 May

Advocate General Medina delivered her Opinion in Agentsia po vpisvaniyata (C-200/23), a request for a preliminary ruling from the Supreme Administrative Court in Bulgaria concerning the interpretation of Directive 2017/1132 and the GDPR.

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AG Rantos delivers Opinion in case concerning interpretation of rules on combating late payment transactions

Thursday 30 May

Advocate General (AG) Rantos delivered his Opinion in a case concerning a preliminary reference on whether Article 3(5) of Directive 2011/7/EU on combating late payment in commercial transactions (recast) should be interpreted as meaning that a period for payment longer than 60 days may be expressly stipulated by undertakings only in contracts in which the contractual terms are not determined unilaterally by one of the contracting parties: Przedsiębiorstwo A. (Délai de paiement de 120 jours fixé par le débiteur) (C-677/22).

Read on EU Law Live

AG Kokott hands down Opinion on tax authority’s decision ordering a law firm to disclose information

Thursday 30 May

Advocate General (AG) Kokott rendered her Opinion in a case concerning a request for a preliminary ruling from Luxembourg, raising the question as to whether and, if so, under what conditions, a tax administration may seek disclosure from a lawyer in the context of an exchange of information on request: Ordre des avocats du Barreau de Luxembourg (C-432/23).

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Council adopts a regulation that aims to levy prohibitive tariffs on grain products imported from Russia and Belarus

Thursday 30 May

The Council passed a regulation aimed at imposing significant tariffs on grain products imported from Russia and Belarus, effectively halting their importation into the EU.

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Council adopts regulation to completely ban the use of dental amalgams and to prohibit manufacturing, import and export of other mercury-added products

Friday 31 May

The Council adopted a new regulation to ban the use of dental amalgam and prohibit the manufacture, import, and export of mercury-added products, aligning with the EU’s zero pollution goal.

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ESMA issues guidance for AI use in investment services

Friday 31 May

The European Securities and Markets Authority (ESMA), the EU’s financial markets regulator, released guidance for firms using Artificial Intelligence (AI) in investment services for retail clients.

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Council greenlights withdrawal from Energy Charter Treaty

Friday 31 May

The EU and Euratom formally decided to withdraw from the Energy Charter Treaty (ECT), marking a significant step towards aligning EU policies with climate goals set by the Paris Agreement and the European Green Deal.

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Commission clears merger of undertakings operating in the market for wholesale broadband access services in Italy

Friday 31 May

The European Commission approved unconditionally, under the EU Merger Regulation, the acquisition by KKR & Co. Inc. (‘KKR’) of NetCo.

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Commission adopts Communication regarding support for farmers under exceptional weather circumstances

Friday 31 May

The Commission adopted a Communication clarifying the use of force majeure and exceptional circumstances for the EU agricultural sector in case of unforeseeable and extreme weather events.

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Commission Implementing Regulation imposing anti-dumping duty on Chinese imports of seamless pipes and tubes of stainless steel, published in OJ

Friday 31 May

Official publication was made of Commission Implementing Regulation (EU) 2024/1475 of 30 May 2024 imposing a definitive anti-dumping duty on imports of certain seamless pipes and tubes of stainless steel originating in China following an expiry review pursuant to Article 11(2) of Regulation (EU) 2016/1036 of the European Parliament and of the Council.

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