The Week
24-28 June 2024
TABLE OF CONTENTS
IN-DEPTH:
No more Shortcuts for the European Commission in State Aid Control: a Compatibility Assessment requires an Assessment of the Presence of Aid in the First Place –Commission v the Netherlands (C-40/23 P)
Małgorzata Cyndecka
Continuing to Fill the Gaps on Professional Recognition: Strengthened Legal Certainty and Missed Opportunities in Case C-75/22
Lavinia Kortese
The Future Prospects of Remote Criminal Trials in EU Law
Inga Žukovaitė
Partial acceptance of the complaints against the refusal to grant access to EP Documents – Izuzquiza and Others v Parliament (T-375/22)
Katarzyna Tomaszewska
Gender Equality, Gender Mainstreaming, and Asylum Law: K, L (C -646/21)
Giulia Raimondo & Joyce De Coninck
SYMPOSIUM ON CLIMATE PROTECTION AS A EUROPEAN FUNDAMENTAL RIGHT UNDER THE ECHR AND BEYOND
The Klimaseniorinnen Case: In Search of Substantive Standards
R. A. Lawson
Just as ripples spread out when a single pebble is dropped into water’- ECHR KlimaSeniorinnen judgement’s systemic effects on the EU legal order
Alicja Sikora-Kaléda
SYMPOSIUM ON THE 2024 REFORM OF THE STATUTE OF THE COURT OF JUSTICE OF THE EU
Breaking with Tradition: Preliminary Reference Reform and the New Judicial Architecture
Takis Tridimas
COMPETITION CORNER: SYMPOSIUM ON SELECTIVITY IN STATE AID
Turbulence in the State aid sky: Selectivity as a new justification for discrimination under Articles 107(2)(b) and 107(3) (b) TFEU? An analysis of the Ryanair-COVID cases
Sébastien Thomas
THE LONG READ:
The European Media Freedom Act: Master of None but Better than None
Olga Batura & Małgorzata Kozak
HIGHLIGHTS OF THE WEEK
IN-DEPT H
No more Shortcuts for the European Commission in State Aid Control: a Compatibility Assessment requires an
Assessment of the Presence of Aid in the First Place –Commission v the Netherlands (C-40/23 P)
Małgorzata Cyndecka
While there is no doubt that the European Commission, often being referred to as the ‘guardian of the Treaties’, plays a key role in the area of State aid law, its competences are not necessarily as clearly defined as one would expect. In a nutshell, the Commission verifies the presence of aid within the meaning of Article 107(1) TFEU and, if appropriate, assesses its compatibility with the internal market by taking into account a relevant derogation(s). Unless one relies on the third subparagraph of Article 108(2) TFEU, that is where in exceptional circumstances the Council, on application by a Member State, may unanimously decide on compatibility of a given aid measure, the Commission has a monopoly with respect to the compatibility assessment. Yet, does the Commission always have to establish that a given state measure amounts to State aid before examining its compatibility or is it possible to move straight to the compatibility assessment if it is ‘clear’ that the given measure is compatible with the internal market? After all, when the assessment of the existence of aid requires much time and (always scarce) resources of the Commission, such a shortcut seems reasonable. Apparently, such practice should also be welcomed by the Member State concerned that sooner obtains a favourable decision. That question was considered by the Second Chamber of the Court of Justice in Commission v the Netherlands (C-40/23 P) of 13 June 2024. Importantly, it was the first time the Court of Justice had to answer that question as the Member State concerned was not satisfied with the Commission’s ‘fudge decision’ on compatibility of ‘aid-or-maybe-not-aid measure’. The General Court dealt with that question at least twice, but it was in the Netherlands v Commission ( T-469/20) of 16 November 2022, which led to the present judgment, that the question at stake was the nub of the dispute.
In the Netherlands v Commission, the General Court annulled the Commission Decision C(2020) final 2998 of 12 May 2020 on State aid SA.54537 (2020/NN) – Prohibition of coal for the production of electricity in the Netherlands. As noted in this author’s analysis of 2022, the Commission concluded that the compensation of 52.5 million euros granted to coal fired power plant Hemweg for its early closure could be declared compatible aid. The main question in the Netherlands’ action for annulment of that decision was whether the Commission could qualify the given compensation as compatible aid without establishing that the payment actually amounted to aid in the first place. According to the General Court, such ‘shortcuts’ were unacceptable and the Commission had exceeded its powers.
In Case C-40/23 P, the Commission put forward a single ground of appeal. In this respect, it alleged first, that the General Court misinterpreted Article 107(3) TFEU and Article 4(3) of Regulation 2015/1589 (Procedural
Regulation), and second, that the Court committed an error of law in the interpretation of the principle of legal certainty. As the Court of Justice noted, the first part of the Commission’s ground of appeal raised the question whether the General Court was wrong to hold that Article 107(3) TFEU and Article 4(3) of Regulation 2015/1589 required the Commission to classify a measure as State aid before deciding that that measure is compatible with the internal market.
Before turning to the rather clear-cut analysis of the Court of Justice that meticulously examined and quashed every single argument raised by the Commission with respect to the first part of the ground of appeal, it is interesting to draw attention to the Opinion delivered by Advocate General Sánchez Bordona on 22 February 2024.
The Advocate General concluded that the General Court had erred in finding that the Commission had ‘exceeded its powers’. In this respect, he decided to ‘leave aside the question of the Commission’s competence and focus on whether the rules on the monitoring of State aid (Articles 107 and 108 TFEU and Regulation 2015/1589) must be interpreted strictly, or, conversely, support the acceptance of the position put forward by the Commission, which advocates a teleological and functional interpretation of the tasks entrusted to it as guarantor of competition in the internal market’ (para 24). When reviewing the case law, the Advocate General admitted that there was ‘no shortage of rulings’ confirming that the classification of a measure as aid had to precede its compatibility assessment. Still, he pointed towards the General Court’s judgment in a&o hostel and hotel Berlin v Commission ( T-578/17, paras. 72-79) that could be interpreted in favour of the Commission’s position.
Most interestingly, however, he proposed an ‘alternative interpretation’ to what the relevant case law established and, as he explained, his ‘alternative interpretation … [could] be adopted if it [was] assumed that the lawfulness of any State aid [was] conditional upon the adjudication as to its compatibility with the internal market’ (para. 45). In his view, ‘the Commission [could] declare a public financing measure to be compatible with the internal market (but not – [as he reiterate] – declare it to be incompatible without previously classifying it as aid within the meaning of Article 107(1) TFEU), that declaration [had] the effect, in fact, of ruling out the very existence of any unlawful aid, from the perspective of EU law’ (para. 64). In this respect, the Advocate General apparently and mistakenly considered unlawful and incompatible aid to be synonyms. This impression is confirmed by the subsequent paragraphs of his Opinion. It is unclear why to blur this important difference between procedural and substantial requirements concerning aid, but the Court of Justice completely ignored the Advocate General’s point of view.
The Court first examined the General Court’s literal interpretation of Article 107(3) TFEU that was allegedly ‘unduly restrictive’. In this respect, the Commission maintained that the term ‘aid’ was used in Article 107(3) TFEU in its ‘general sense’, and not in the ‘technical sense’ to designate State aid. While this was quite a creative if not surprising interpretation of the relevant Treaty provision, the Court confirmed that the term ‘aid’ was indeed used in Article 107(3) TFEU to designate only State aid. It followed from Article 107(1) TFEU, read as a whole,
that only measures which fulfilled the conditions arising from paragraph 1 and which constituted aid were, save as otherwise provided in the Treaty, incompatible with the internal market. Therefore, Article 107(3) TFEU that listed the measures which could be considered compatible with the internal market, could concern only State aid (para. 35). Moreover, as the Court noted, while Article 107 TFEU neither laid down procedural rules nor directly concerned the Commission’s powers, it was apparent from that provision that the classification of a measure as aid within the meaning of paragraph 1 of that provision was a precondition for the possible application of the exception laid down in paragraph 3 (para. 37).
As regards the Commission’s reference to Lorenz (Case 120/73), in that case there was no doubt concerning the aid character of the measure at stake and the question was whether the Commission was under an obligation to conclude the preliminary examination by means of a decision. Moreover, the possibility of not adopting a decision ended with Regulation 659/1999, Article 4(1), a predecessor of Regulation 2015/1589 (para 38). The Commission’s arguments based on British Aggregates v Commission (C-487/06 P) and Commission v Kronoply and Kronotex (C-83/09 P) were quashed as well. Therein, the Court of Justice confirmed that the determination of whether a measure constitutes aid had to be carried out before the compatibility assessment (para. 41).
As regards the Commission’s argument that there were situations in which it was, ‘both in the light of the principle of good administration and the interests of the parties concerned, more appropriate to determine whether the measure [was] compatible with the internal market than to determine whether it constitute[d] aid, it should be noted that that principle and the considerations of appropriateness thus invoked [could not] call into question the scheme and consistency of Article 107 TFEU’ (para. 47).
Since the first part of the ground of appeal was upheld, it was not necessary for the Court to examine the second part of that ground of appeal.
The present judgment brough about an important, although not welcome by everyone clarification. As it turned out, a seemingly simple question contributed to an interesting debate during which arguments of different quality and weigh were raised. Taking a very pragmatic approach, the most powerful argument against the Court’s conclusion is the one concerning the complexity of some cases and the Commission’s scarce resources. Yet, even that argument cannot outweigh the ‘scheme and consistency of Article 107 TFEU’ or the legal certainty of amongst others the competitors of the ‘aid-or-maybe-not-aid’ beneficiary. After all, it may be relevant to seek interest from the beneficiary in respect of the period of unlawfulness, that is until the Commission declares unlawful aid to be compatible. Finally, also (some) academics truly appreciate Commission State aid decisions that are nothing like ‘fudge decisions’ with respect to the presence of aid. This, however, is obviously not a legal argument.
Małgorzata Cyndecka is Associate Professor at the Faculty of Law, University of Bergen. She is also Associate Editor of European State Aid Law Quarterly.
Cyndecka, M.; “No more Shortcuts for the European Commission in State Aid Control: a Compatibility Assessment requires an Assessment of the Presence of Aid in the First Place –Commission v the Netherlands (C-40/23 P)”, EU Law Live, 25/06/2024, https://eulawlive.com/op-ed-no-moreshortcuts-for-the-european-commission-in-state-aid-control-a-compatibility-assessment-requires-an-assessment-of-the-presence-of-aid-in-the-firstplace-commission-v-th/
Continuing to Fill the Gaps on Professional Recognition: Strengthened Legal Certainty and Missed Opportunities in Case
C-75/22
Lavinia Kortese
Introduction
The importance of the recognition of qualifications for mobility in the EU is evident, as attested to by extensive legislation in this area. As of yet, the Professional Qualifications Directive (Directive 2005/36/EC as amended by 2013/55/EU) consists of more than 200 pages carefully detailing how recognition is to take place. Considering such an extensive instrument, it may seem surprising to imagine that not all is clear yet. Nevertheless, cases still make it to the Court of Justice of the EU attesting to that fact. For example, in 2020 the Court confirmed the application of the Treaties and the Vlassopoulou formula to cases which do not fall within the scope of the Professional Qualifications Directive, thus filling in the gaps and benefiting recognition of – most likely young –professionals.
Its most recent case, Commission v. Czech Republic (C-75/22), can be considered a continuation of the tasks of filling the gaps persisting in the Professional Qualifications Directive (hereinafter: PQD). The case covers a wide variety of complaints ranging from issues concerning service provision to administrative matters. Since space precludes an extensive discussion of all complaints, this Op-Ed focuses on specific aspects of the case. Whereas the case overall leads to an increase in legal protection under the PQD, it also presents some missed opportunities.
Dissecting the Case
Filling The Gaps – A Continuation
The first complaint is a continuation of the trend regarding the filling of gaps in the legislation and practice surrounding professional recognition. In particular, the Commission alleged that the Czech Republic failed to fulfil its obligations under Articles 3(1)(g)(h) PQD by not explicitly granting those undertaking compensation measures with a clear status.
A brief background to those Articles: the PQD provides for a general system based on the principle of mutual recognition which applies to the vast majority of professionals subject to the Directive. The core rule of that system is that qualifications are in principle to be recognised, unless there are substantial differences. In such a case, the host Member State may require an applicant to undergo compensation measures in the form of an adaptation period or aptitude test. Furthermore, reading those Articles shows that competent authorities in Member States
have a duty to lay down detailed rules regarding the adaptation period/aptitude test and its assessment, but also ‘the status of a migrant under supervision’. It can further be read that the status enjoyed in the host Member State has to be established by the authority in accordance with EU law and concerns matters such as the right of residence, obligations, social rights and benefits, allowances and remuneration.
Therefore, the reference to the status of the persons undertaking compensation measures not only pertains to the question how they are regarded under the PQD, but concerns a much broader question of how a person is to be regarded as a migrant in the host Member State. This accordingly attests to the importance of clarifying the status of those undertaking compensation measures.
According to the Commission, a legal status should be guaranteed to those undertaking compensation measures so that they do not find themselves in a ‘legal vacuum’. Their status must accordingly be defined sufficiently clearly and precisely, and has to be defined by the competent authority – although it does not have to be laid down in specific legislation on recognition but may be laid down in general legislation as long as it sufficiently clear and precise.
Articles 13 through 15 of the Czech law on recognition of professional qualifications show great correspondence to the PQD’s formulation of Articles 3(1)(g)(h), although that law makes no mention of the status of those undertaking compensation measures. According to the Czech Republic, this should not pose an issue since Member States are not obliged to transpose EU law provisions literally. In this case, the Czech Republic argues it should not have had to implement matters regarding status since the Articles of the Directive do not mention specific rights and obligations that must be granted to them. The Czech Republic furthermore contends that those undertaking compensation measures cannot be presumed to form a homogeneous group being the subject of a single status. By contrast, the Czech Republic also argued that the status of those undertaking compensation measures could not be determined on a case-by-case basis due to risks of legal uncertainty.
It is evident that there appears to be a gap in clarity regarding the status of those undertaking compensation measures. The reasoning by the Czech Republic seems to suggest this group of individuals was not granted a status since they could not be awarded a status as one singular group, but also not as individuals on a case-by-case basis. This therefore begs the question of what exactly was the status of those undertaking compensation measures, if any.
The Court of Justice indeed confirms this fact in its judgment. It furthermore states that Articles 3(1)(g)(h) PQD required persons undertaking compensation measures to have a status to ultimately ensure those persons would have clear rights and obligations. The Court further recounts the nature of directives being binding as to their result but leaving to the Member States the form and methods to achieve them. Nevertheless, the Court confirms that provisions of directives must be implemented ‘with unquestionable binding force and with the specificity, precision and clarity necessary to satisfy the requirements of legal certainty’. In this particular case, the PQD requires those undertaking compensation measures to be capable to easily ascertain what their status is and what rules determine it.
In light of these considerations it is unsurprising the Court concludes that the Czech Republic has failed to fulfil its obligations under the PQD. The case therefore serves to solidify legal certainty for those undertaking compensation measures ranging further than the recognition of qualifications alone ultimately clarifying their general status in the host Member State when undertaking compensation measures.
Confirming Interpretations: Missed Opportunities?
The second and fourth complaints in the case are also worth mentioning, though they have been deemed inadmissible. Had the complaints been elaborated by the Court of Justice they could have led to a further clarification of the PQD.
The second complaint revolved around an alleged issue in Czech law regarding registration of service providers with public social security bodies. Article 6(b) PQD exempts service providers from other Member States from the need to register with such a body for the purpose of settling accounts with insurers for the service providers’ clients/patients. Under Article 6(b), service providers need only inform public social security bodies of the services provided. The Commission contended that a service provider from another Member State would have to have a contractual relationship with a Czech health insurer for the insured person (i.e. the client/patient) to ultimately receive reimbursement. Whereas the Commission contended that Member States are allowed to make reimbursement of costs of treatment subject to compliance with certain requirements, it considered registration with a health insurer to be prohibited. Considering this issue more broadly, the question remains open whether such registration is to be considered contrary to the requirement in Article 6(b) PQD and whether health insurance funds should also be considered covered by the concept of a public social security body under the PQD.
Furthermore, the fourth complaint could have served as a confirmation of previous case law. This complaint attests to an issue with the system for automatic recognition which operates on the basis of minimum training conditions (i.e. harmonised standards for training) and lists of diplomas fulfilling those requirements. This system can only operate successfully if all training for the profession in question is streamlined according to the minimum training conditions. The Commission contended that the Czech Republic allowed parallel nursing professions that were nevertheless comparable and subject to lower qualification requirements than those required by the PQD. It would have been interesting to see the Court’s assessment of such an issue, especially since prior case law on recognition has shown that Member States are not allowed to create qualifications that deviate from the minimum training conditions (See Tennah-Durez (Case C-110/01)).
Concluding Remarks
The present case represents a development in the case law that continues to clarify the gaps in the Professional Qualifications Directive. The first complaint shows that persons undertaking compensation measures should not only have clarity regarding their recognition process, but also regarding their status as migrants in the host Member State while they work towards recognition of their qualifications. The other complaints, briefly touched upon, nevertheless also show that there is more room for clarification, leaving some spaces blank for now.
Lavinia Kortese is Assistant Professor in EU Law at Utrecht University.
SUGGESTED CITATION: Kortese, L.; “Continuing to Fill the Gaps on Professional Recognition: Strengthened Legal Certainty and Missed Opportunities in Case C-75/22”, EU Law Live, 24/06/2024, https://eulawlive.com/op-ed-continuing-to-fill-the-gaps-on-professional-recognitionstrengthened-legal-certainty-and-missed-opportunities-in-case-c-75-22/
The Future Prospects of Remote Criminal Trials in EU Law
Inga Žukovaitė
Introduction
There is a growing trend in Europe towards exploring the use of remote technologies as a means of supplementing physical presence and digitising the justice system more broadly. The COVID-19 pandemic has given the opportunity to introduce new legal solutions to the modernisation of criminal proceedings. This is the reason to review, assess and forecast the development and state of remote criminal proceedings regulation in the postpandemic period from the perspective of EU law.
While online hearings may serve as tools that enable delays in the criminal justice process to be avoided, the aim of amendments in this sphere is to ensure that the right to a fair trial remains effective and practical, which is essential in order to maintain mutual trust between the Member States and public confidence in the Union. It is therefore important to understand the safeguards that are in place, without which a growing risk of undermining the right to a fair trial would emerge.
There have been progressively significant legislative changes in Member States’ criminal procedural law (e.g. A. Sanders). There have also been developments at the EU legislative level that aim to digitalise cross-border cooperation between EU judicial authorities as a result of the opportunities offered by the expansion of digitisation and the COVID-19 pandemic. The last one is Regulation (EU) 2023/2844 (hereinafter – the Regulation), which will apply from 1 May 2025. The Regulation aims to improve the efficiency and effectiveness of judicial procedures and to facilitate access to justice by digitalising the existing communication channels including establishing rules on the use of videoconferencing.
The ongoing developments raise the following issues, which will be discussed in this Op-Ed: Whether and how does EU law regulate the remote participation in criminal justice process? Does remote participation in criminal proceedings require establishing new safeguards at EU law level for the protection and strengthening of the right to a fair trial?
The EU Policy on the Remote Criminal Process
The directions and means of achieving interoperability between technology and justice systems are identified in Communication COM(2020) 710 on the digitisation of justice systems in the European Union. It lays the foundations for a ‘digital by default’ principle which is already being used adopting the new EU legislation as the Regulation admits (Recital 1). The EU’s intention to encourage the use of technological means in the process is expressed in the Regulation’s by stating that the absence of national rules on the use of telecommunications
technologies cannot be a justifiable reason for refusing to hold a hearing by videoconferencing (Recital 33). The EU Justice Scoreboard 2023 provides an assessment of the quality of justice systems. One of the key indicators for evaluating the efficacy of the justice system is the extent to which national legislation permits the utilisation of digital technology, including the use of videoconferencing in criminal proceedings (The 2023 EU justice scoreboard COM (2023)/309) (Figure 41)).
Although there is a positive appraisal of the progress made to date, it is imperative not to lose sight of the fact that technological intervention in legal processes implies risks to the fundamental rights. The main risks that remote criminal proceedings entail for the right to a relate to ensuring the right to be present in the proceedings and the rights of the defence. To provide a sufficient degree of trust in the criminal justice systems of other Member States the EU aims to establish common minimum rules on the protection of procedural rights of suspects and accused persons. Which is why two directives are central to the EU legal framework: Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings; and Directive 2016/343/EU on the strengthening of certain aspects of the presumption of innocence and the right to be present at trial in criminal proceedings. But it appears that the current Directives do not establish the right of accused persons or suspects to choose between physical presence or presence by videoconference, nor do they include specific guidelines or regulations for ensuring procedural rights are protected during remote proceedings.
The new Regulation specifically distinguishes the areas of application for cross-border actions according to an exhaustive list of legal acts (Article 6(1)). Two of these legal acts, Framework Decisions 2008/947/JHA and 2009/829/JHA, already legalised the use of videoconferencing before the adoption of the new Regulation, but neither of them defined the requirements for its use nor set standards for the protection of right to fair trial. Even if the Regulation defines the limits of its direct impact for procedural rights enshrined in the Charter and in the procedural rights directives (e.g., Directives 2013/48/EU and 2016/343), it is therefore the first of its kind in the EU to identify potential risks associated with the remote participation in criminal process and to set legal standards for its protection.
Despite the adoption of the European Commission for the Efficiency of Justice (CEPEJ) guidelines on videoconferencing in judicial proceedings, which set out principles that States and courts should follow to ensure that the use of videoconferencing for remote hearings is in line with the right to a fair trial as enshrined in Art. 6 ECHR , there are no specific provisions to ensure the protection of procedural rights in remote criminal proceedings in the EU directives, regulations or other EU legal acts. Therefore, there is no straightforward answer as to whether the remote participation in a hearing infringes procedural rights enshrined in EU law or what measures need to be taken to effectively protect these rights.
The Implications of the Regulation 2023/2844 for Threats and Legal Safeguards Detection in Remote Criminal Justice Process
Although in the EU legal instruments there are no clear provisions to exert direct influence on the regulation of remote hearings in criminal cases, the adoption of the Regulation may have an indirect impact, that makes it
possible to discuss about minimum EU legal safeguards and guidelines on the protection of the right to a fair trial in criminal proceedings conducted remotely.
It is important to note that the Regulation provides a new definition of videoconferencing. This definition prioritises the protection of fundamental criminal procedure principles such as immediacy and orality. ‘ “Videoconferencing” means audio-visual transmission technology that allows two-way and simultaneous communication of image and sound, thereby enabling visual, audio and oral interaction’ (Article 2(6)). The Regulation prohibits the use of technology that lacks at least one of these capabilities, such as telephone communication.
Furthermore, the Regulation provides a detailed account of the legal safeguards in place. This legal act does not make the use of videoconferencing compulsory, but merely optional (Recital 31). This approach is implemented to address the differences between national legal systems in terms of their level of digitalisation.
The consent is an essential requirement for the use of videoconferencing. The deviations from consent may be permitted only in exceptional circumstances (Article 6(2)(b)). The Regulation refers to such cases as serious threats to public security or public health that must be tangible (‘which is shown to be genuine and present or foreseeable’). According to Article 6(2)(b) of the Regulation, it is required that consent be both unambiguous and voluntary. Consent is of significant importance for the protection of defence rights. The emphasis on obtaining consent confirms that videoconferencing is acknowledged to pose potential threats to a person’s procedural rights and, as such, cannot be used coercively or without the interviewee’s explicit consent. The regulation of consent varies across the national laws of Member States: in some cases it has been regulated; in others, merely discussed. For example, in Lithuania (Code of Criminal Procedure Art. 82 ) the law on criminal procedure only requires the consensus of all parties during the trial stage; at the pre-trial stage, disagreement does not impede the procedural act of videoconferencing. In Italy (Code of Criminal Procedure Art. 133-bis, 133-ter), consensus is not mentioned, although this was a criterion at the drafting stage.
The provisions of the Regulation on legal safeguards also include ensuring access to legal assistance. The Regulation establishes a separate right to consult a lawyer before giving consent to participate by videoconference. The Regulation provides that the confidentiality of communications between lawyers and participants of the procedure shall be ensured both immediately before and during the hearing (Recital 46). Although the manner in which confidentiality is to be ensured is not specified, reference is made to the provisions of the applicable national law (Article 6(5)).
In summary, the Regulation reinforces the necessity for additional measures within the legal system to enshrine the right to a fair trial when using video conferencing. It establishes minimum and sufficient measures for crossborder cases to avoid risks to procedural rights caused by technology. The requirements set out in the Regulation confirm that videoconferencing remains an alternative form of participation in legal proceedings, which cannot be used against a person’s will.
The Desire for Clarity in Future Case Law
A brief review of EU legislation reveals that the regulation of remote criminal proceedings is uncertain with respect to the procedural rights guaranteed by EU law. This is evidenced by the fact that the Court of Justice is currently seized of case C-760/22, a preliminary ruling request coming from Bulgaria, a case where the ruling is scheduled to be pronounced next week.
Competence for harmonising criminal procedures provided in Article 82 TFEU, a strong willingness on the part of EU institutions to extend the use of videoconferencing and to promote digital by default principle, makes it reasonable to expect that the Court of Justice will offer an interpretation of participation in proceedings that considers remote participation as an optional form of participation within the scope of the EU Directive. Moreover there is a probability that, in order to ensure the protection of the right to a fair trial, the issue of the use of videoconferencing in criminal proceedings cannot be a matter for Member States alone.
Conclusion
Videoconferencing is a part of digitisation, which has strong support and principled justification in EU policy. Nevertheless, the EU legal framework is only recently providing clarity on this matter. On one hand the new Regulation shows a clear intention to regulate the standards for the use of videoconferencing, but only in cross-border proceedings. Despite the lack of a specific legal framework within EU law regulating the use of videoconferencing in criminal proceedings, it can be anticipated that standards of the use of videoconferencing at the case hearing phase of criminal proceedings in EU law will be established through the development of Court’s case-law by interpreting the content of directives governing procedural rights. Moreover, it can be assumed that case law will serve as a guideline for the further development of the EU legal framework.
Inga Žukovaitė is a lecturer and postdoctoral research fellow at Mykolas Romeris University (Vilnius, Lithuania).
SUGGESTED CITATION: Žukovaitė, I.; “The Future Prospects of Remote Criminal Trials in EU Law”, EU Law Live, 25/06/2024, https://eulawlive. com/op-ed-the-future-prospects-of-remote-criminal-trials-in-eu-law/
Partial acceptance of the complaints against the refusal to grant access to EP Documents – Izuzquiza and Others v Parliament (T-375/22)
Katarzyna Tomaszewska
A combination of Article 15 of the Treaty on the Functioning of the European Union, Article 42 of the Charter of Fundamental Rights of the European Union, and Regulation No 1049/2001, guarantee transparency in the activities of public entities in the European Union. The importance of transparency is already made apparent in the second recital of Regulation No 1049/2001 by pointing out that transparency (accessibility) lays the groundwork for genuine participation of individuals in important political decisions within the EU and stimulates diligence, efficiency, and accountability of governing public structures in democratic countries. However, it is crucial to understand that the accessibility to the records of public bodies and institutions guaranteed by EU regulations is not absolute – it suffers a limitation on the grounds of values, a catalogue of which is found in Article 4 of the abovementioned regulation. This is reflected in EP Decision A(2021) 10718C on the refusal of access to records on the grounds of privacy and integrity of the individual, in particular concerning Article 9(1) of Regulation 2018/1725. It was an adverse reaction of the EP to the openness of the requested documents relating to Mr Lagos’s salary, residence allowance, remuneration of his accredited and national parliamentary assistants, and the reimbursement of their travel expenses. Despite a confirmatory application submitted to the institution, the EP did not change its original decision. The EP based its final decision on Article 4(1)(b) and Article 4(6) of Regulation No 1049/2001, as well as on Article 9(1) of Regulation 2018/1725.
The right of access to documents held by EU Institutions can be qualified as broad, both regarding its subjects – given that everyone is entitled to the right of access – and its object –because access applies to all documents (produced and received from outside) (Article 2(1) and (3) of Regulation No 1049/2001). Nevertheless, on 8 May 2024, the General Court did not fully recognise the merits of the allegations of the applicants in its judgment Izuzquiza and Others v Parliament (T-375/22; ‘Izuzquiza’). It has confirmed that the principles of transparency and accountability have the dominant meaning in democratic systems of Member States, providing reassurance about the Union’s commitment to these values (see also, Dennekamp v Parliament, T-115/13).
The General Court annulled the decision of the European Parliament to refuse access to documents containing the personal data of Mr Lagos (MEP) and relating to the reimbursement of his travel expenses, as well as the allowances paid to him. The content of the judgment also highlighted the rejection, by the General Court, of the Parliament’s objection to granting access to documents containing the personal data of Mr Lagos’ parliamentary assistants indicating the reimbursements for travel expenses they received.
Besides the General Court’s favourable decision, there remained the issue of providing information regarding the remuneration and the allowance for general expenses of Mr Lagos. However, this outcome cannot be considered an acknowledgement of the primacy of secrecy of the documents in question over the principle of openness. Instead, it expresses the principle of precedence of general public disclosure (Article 10(2) of Regulation No 1049/2001) versus specific and individual disclosure. There is no need for the EU Institution to re-disclose a document (upon individual request of the interested party) if that document is already available to the applicant through its general dissemination.
Information on MEPs’ remuneration and the flat rate of the general expenses allowance shall be published on the EP’s website. The power guaranteed to individuals on the subject of self-acquisition of certain information subject to general public disclosure is confirmed in the European Parliament’s Rules of Procedure (see, Article 122). As the General Court rightly pointed out, remuneration amounts paid ex officio to MPs and lump-sum allowances for general expenses (regardless of the manner in which they are made public) cannot provide interested parties with knowledge about the specific purpose of their use (T-375/22; ‘Izuzquiza’). The content of the ruling shows that the applicants failed to clearly and effectively demonstrate that the provision of information regarding the salary of Mr Lagos, his residence and allowance for general expenses was the most optimal way of satisfying their information claims and the best means of achieving the intended purpose. These are necessary and indispensable elements in the light of the principle of public access arising from Regulation No 1049/2001. The exact position (regarding the lack of demonstration of necessity) should be taken concerning information on the salaries of accredited and local assistants of a convicted MEP, which are impossible to find on the European Parliament’s website and, importantly, not covered by a favourable decision of the judicial authority.
The analysis of the ruling allows us to assume that the General Court rejected the EP’s interpretation regarding the conditions of necessity and proportionality, as referred to in Article 9(1)(b) of Regulation 2018/1725. Pursuant to that regulation, personal data shall be transferred to recipients established in the Union other than EU Institutions and bodies only if the recipient establishes that: ‘it is necessary to have the data transmitted for a specific purpose in the public interest and the controller, where there is any reason to assume that the data subject’s legitimate interests might be prejudiced, establishes that it is proportionate to transmit the personal data for that specific purpose after having demonstrably weighed the various competing interests’ (Article 9(1)(b)). Based on that regulation, the applicants evidenced that the disclosure of the information at issue (regarding travel expenses and subsistence allowances) of a person convicted, among other things, of belonging to and leading a criminal organisation is necessary for the needs of reliable information of the EU community and the correct formation of public opinion about specific persons performing public service on behalf of a particular community. In light of the case law to date, however, the general creation of a purpose of access in obtaining documentation bearing personal data regarding the relevance of transparency in the activities of public entities (as a general rule) does not constitute a sufficient procedure (see, Psara v Parliament, T-639/15 to T-666/15 and T-94/16), as does the invocation of public interest that is a private interest of the applicant (see, Secolux v Commission, T-363/14). The judgment referred to above (T-639/15) emphasised: ‘…because of their excessively broad and general wording,
those objectives cannot, in themselves, establish the need for the transfer of the personal data in question. … (para. 74)’. Thus, the assertion in the body of the judgment in question that ‘…the necessity of the transmission of personal data may be based on a general objective, such as the public’s right to information concerning the conduct of Members of the European Parliament in the exercise of their duties…’ is a novelty (T-375/22, Izuzquiza, para. 40). It may suggest a change in the current judicial practice to the benefit of those interested in information. However, the applicants in the present case specifically and expressly indicated that their request for information was directed at strengthening public scrutiny and increasing the sense of responsibility for the use of the sums provided by the Parliament to Mr Lagos and for his incurring certain costs (T-375/22; Izuzquiza) in view of the fact that he had been found guilty and convicted for illegal activity. This was significant because the MP continued to be paid from public funds despite his conviction and, controversially, after his sentencing. The scope of the information covered by the information expectation regarding the use of public funds by the convicted parliamentarian also included his assistants, despite the Parliament raising questions regarding the legitimacy of granting access to such information since the persons merely assisting MPs in their political activities are not performing public functions. Nevertheless, as stated in the judgment, the release of information on the travel expenses of the assistants of Mr Lagos may facilitate the acquisition of important information on the existence of a link between the use of public funds and the criminal activities of the convicted person, which is essential from the point of view of the legally guaranteed transparency of the activities of public institutions (T-375/22; Izuzquiza, para. 94).
The findings in the judgment mean that it is possible to accept the claim that the EP’s objections based on the second of the grounds for the legitimacy of the transfer of information involving personal data – namely, proportionality – have been effectively countered. However, the claim that there is a threat to a private interest concerning the proportionality test did not have the desired effect, despite the Parliament invoking the argument of a restriction of freedom in the exercise of an MP’s mandate and the creation of a real threat to their security when the expected information is made available to those concerned (T-375/22; Izuzquiza). Access to information requested must not affect the freedom of MP’s to exercise their mandate, in particular their movements in the performance of their public duties, since, from the point of view of the timeliness of the request for information, those movements have already taken place and are not about to take place (T-375/22; Izuzquiza). Similarly, an argument based on the threat to Mr Lagos’ security was refuted by demonstrating that the release of the information was intended to be subsequent after the MP began serving his sentence in solitary confinement (T-375/22; ‘Izuzquiza’). Thus, while it is not possible to eliminate the threat to the security of an MP held in a detention facility, it would be undesirable to find a direct link between such a state of affairs and the process of providing access to the information requested and, above all, would appear to be a significant factor inhibiting public access to the documents of the EU institutions and bodies.
Katarzyna Tomaszewska is an Assistant professor at the Research Center on Legal and Economic Problems of Electronic Communication (Faculty of Law, Administration and Economics) at the University of Wroclaw.
Tomaszewska, K.; “Partial acceptance of the complaints against the refusal to grant access to EP Documents – Izuzquiza and Others v Parliament (T375/22)””, EU Law Live, 28/06/2024, https://eulawlive.com/analysis-partial-acceptance-of-the-complaints-against-the-refusal-to-grant-access-to-epdocuments-izuzquiza-and-others-v-parliament-t-375-22/
Gender Equality, Gender Mainstreaming, and Asylum Law: K, L (C-646/21)
Giulia
Raimondo & Joyce De Coninck
Introduction
One of the most predominant critiques offered by anti-immigration rhetoric and politics is that third-country nationals do not share the same values as the reception country. Yet, when faced with an application for international protection by two Iraqi women who claim to have grown to identify themselves with EU fundamental rights and values (including gender equality) throughout their prolonged time in the Netherlands and fear persecution upon return to Iraq for their ‘Westernized’ ideals, the Dutch authorities nevertheless refused to provide them with protection. Those are the facts that undergird the recent and widely lauded judgment in K,L.
In WS the Court of Justice had already recognised that women can form part of a particular social group in line with international refugee law and the Istanbul Convention (for further analysis, see here and here). K,L is slightly more nuanced though significantly different in effect, as it concerns not women seeking protection in the EU, based on their well-founded fear of being persecuted by reason of gender-based violence, but instead concerns women in the Netherlands that have embraced EU fundamental rights standards and values and thus face a risk of persecution upon return. While we join the chorus of applause, with this contribution, we offer a slightly more nuanced and critical perspective drawing from intersectionality studies.
The Case and Its Legal Background
The case of K, L (C-646/21) concerns two minor sisters of Iraqi nationality, who left their country in 2015 with their parents. The family’s initial applications for international protection in the Netherlands were unsuccessful. In 2019, the sisters submitted subsequent applications for international protection, which were deemed manifestly unfounded and rejected. In 2020, they appealed this decision to the referring court in The Hague, arguing that during their prolonged stay in the Netherlands, they had adopted ‘Western’ norms, values, and behaviours and feared persecution if they were returned to Iraq due to these fundamental changes in their identities. The request for a preliminary ruling thus asked the Court of Justice whether ‘westernised women’ – which the referring Court and the applicant connect with gender equality and women’s rights – could be recognised and be regarded as members of a ‘particular social group’, within the meaning of Article 10(1)(d) of the Qualification Directive
According to this provision, people are considered as belonging to a particular social group if they meet an internal and an external qualifier. The former requires that individuals share ‘an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or
conscience that a person should not be forced to renounce it’. The external qualifier requires that the ‘group has a distinct identity in the relevant country because it is perceived as being different by the surrounding society’.
The European Commission and several Member States submitted observations, underscoring their different interpretations of EU asylum law in light of gender equality and the significance of the case. Concerning the internal qualifier, the Czech, Greek, Hungarian, and Netherlands governments shared the view that the sisters’ arguments were ‘based on a preference for a certain [Western] lifestyle’, which, they argue, ‘is not a belief that is so fundamental to identity or conscience that a person should not be forced to renounce it’ and, as such, cannot lead to the grant of international protection (Opinion of AG Collins, point 13). In their view, the concept of ‘Westernised’ women and girls is too broad, heterogeneous and abstract to constitute a clearly delineated social group in the context of applications for international protection. The Spanish and French Governments and the European Commission disagreed and considered that the sisters could be considered members of ‘a particular social group based’, inter alia, on gender and age, which, in their view, constitute innate characteristics. In addition, they also argued that their belief in gender equality, developed during their time in the Netherlands, could represent a shared and fundamental belief in the sense of Article 10(1)(d) of the Qualification Directive.
In his Opinion, Advocate General Collins is reluctant to engage with the arguments advanced by the Applicants, noting that the concepts of ‘Westernised’ women and girls and ‘Western’ lifestyle were dangerously vague (para 18). He stressed that the application of the terms ‘Eastern’ and ‘Western’ in the context of moral codes and values perpetrates a false dichotomy that fosters divisive discourse that should have no place before the Court. Yet, this premise led the AG to very different conclusions. First, he stressed that the application of the terms ‘Eastern’ and ‘Western’ in the context of moral codes and values perpetrates a false dichotomy that fosters divisive (and, we would add, orientalistic) discourse that should have no place before the Court. Second, and related, rather than on those meaningless notions, the AG focused his opinion on gender equality as a fundamental value and principle of EU law and as a shared belief and an indelible part of one’s identity, representing the ‘internal aspect of a social group’ defined in Article 10(1)(d) of the Qualification Directive. Along these lines, he concluded that it was plausible that during their time in the Netherlands, the two sisters developed a belief in fundamental rights, including gender equality, to the extent that it became a fundamental part of their character. In addition, and with regard to the ‘external aspect of a social group’, the AG observed that the burden of proving that a particular social group has a distinct identity in a particular country falls equally upon the applicant and the Member State and not exclusively upon the former (Opinion of AG Collins, point 44).
The Judgement
Building on the AG Opinion and on its first decision on women and refugee status, the Court found that the sisters could also be recognised as a ‘particular social group’.
They satisfied both the internal and external elements of the definition of a ‘particular social group’ definition under Article 10(1)(d) of Directive 2011/95. Their belief in gender equality was deemed so fundamental to their identity
that they should not be forced to renounce it. Furthermore, living in a Member State while developing their belief in equality as an integral part of their identity provided them with a ‘common background that cannot be changed’ (points 44-45). They also fulfilled the external criterion since it is plausible that the surrounding society (not necessarily the entire country) would perceive them as having a distinct identity. Their belief did not need to have a religious or political connotation, albeit it could have (point 52). This finding aligns with the UNHCR Guidelines on International Protection No. 2, according to which the Refugee Convention grounds (reflected in the Qualification Directive) are not mutually exclusive (para. 4). Gender equality assumes an ‘axiological dimension’ that characterises the whole judgement, which constitutes an attempt to foster gender mainstreaming.
As regards the evaluation of an application for international protection based on membership of a particular social group as the reason for persecution, the Court clarified that it falls to the competent national authorities to ascertain whether the person relying on that ground for persecution has ‘a well-founded fear’ of being persecuted in her country of origin by reason of that membership (see also C-621-21, point 59). In addition, the Court also articulated the requirement to consider the ‘best interests of the child’ when assessing asylum applications in light of the General Comment by the UN Committee on the Rights of the Child (point 73).
In essence, the two sisters can be qualified as ‘de facto as refugees sur place’, because of their actions outside their country of origin and how they are perceived by that country’s authorities (Ertuna Lagrand and Nicolosi). Drawing on its previous case law (Case C-222/22; see also Raimondo and Rizzuto), the Court emphasised developing a belief in gender equality while abroad cannot be seen as an attempt to abuse the asylum procedure (point 62). This approach is included in Article 10(3) of the 2024 Qualification Regulation. Despite the complex language, this provision forbids national authorities from requiring applicants to adapt or change their behaviour, convictions or identity to avoid the risk of persecution in their country of origin – precisely what some intervening Member States were demanding of the two sisters (Opinion of AG Collins, point 13).
Concluding Remarks: The Intersection of Gender, Age, and Race?
The Court’s decision in K, L (C-646/21) represents a significant step towards recognising the complexity of gender-related persecution within the (EU and international) legal framework governing international protection. By acknowledging the sisters’ belief in gender equality as a fundamental part of their identity, the Court aligns with its previous ruling in WS and reinforces the importance of a gender-sensitive interpretation of refugee law, as advocated by the Istanbul Convention. However, two observations become inevitable upon closer examination of the ruling.
Firstly, Article 60(2) of the Istanbul Convention –to which the EU recently acceded– requires a gender-sensitive interpretation of each of the Refugee Convention grounds enumerated in Article 1(A)(2) –that is to say, not just with respect to the ground of ‘membership to a particular social group’. Conversely, Article 10 of the Qualification Directive considers gender exclusively with respect to membership in a particular social group. This same problem remains unaddressed by the 2024 Qualification Regulation introduced with the new EU Pact on Migration and
Asylum. The 2024 Qualification Regulation’s limitation of gender consideration to membership to a particular social group, without broader alignment with the Istanbul Convention, points to a gap that the EU must address to fully embrace a gender-sensitive asylum system. By relying on this (lacking) legal framework, inadvertently, the ruling depoliticises the sisters’ belief in gender equality, which might have been grasped as an (additional) ground for persecution, that is to say, persecution based on their political opinions (Briddick). The discrepancy between the 2024 Qualification Regulation and the requirements of the Istanbul Convention might be a question that the Court will have to resolve in the future.
Secondly, the Court’s ruling, while progressive, did not fully explore the intersection of gender, age, and race and the ensuing various forms of oppression overlapping in the lives of migrant women and girls. In this sense, rather than triggering a feminist revolution, the Court’s replies to references in cases involving refugee women align (to the extent possible) the CEAS with existing international standards (Steininger). Moreover, an intersectional feminist perspective reveals a more fundamental problem with the CEAS and the pertinent Court’s case law. For as long as the EU does not allow international protection requests at embassies or beyond its borders, or the possibility to reach those borders and lodge their requests safely, women exposed to gender-based violence will continue to face unsurmountable barriers to be able to seek any protection in the first place.
Overall, this ruling is a welcome and much-needed development. It follows the thread of catching up with human rights standards and fostering gender mainstreaming, which started with WS. Against this background, however, one should be mindful of the risk of framing ‘refugee women’ as a homogenous category, thus ignoring ‘the complex intersections of race and gender shaping both women’s experiences and the racialised politics of protection’ (Crawley).
Giulia Raimondo is postdoctoral researcher at the University of Luxembourg and guest lecturer at the University of Fribourg, Switzerland
Joyce De Coninck is FWO postdoctoral researcher at the Ghent European Law Institute at Ghent University, Belgium
SUGGESTED CITATION: Raimondo, G. and De Coninck, J.; “Gender Equality, Gender Mainstreaming, and Asylum Law: K, L (C-646/21)”, EU Law Live, 26/06/2024, https://eulawlive.com/op-ed-gender-equality-gender-mainstreaming-and-asylum-law-k-l-c%e2%80%91646-21/
SYMPOSIUM
SYMPOSIUM ON CLIMATE PROTECTION AS A EUROPEAN FUNDAMENTAL RIGHT UNDER THE ECHR AND BEYOND
The Klimaseniorinnen Case: In Search of Substantive Standards
R. A. Lawson
And, so this is Christmas (war is over) And what have you done? (If you want to) [1]
And, so this is Christmas: cheers and boos
The first incursions of the European Court of Human Rights in the field of climate change met with a mixed response. Even though each of the 11 individual applications was rejected, it was the success of the Swiss NGO Verein KlimaSeniorinnen that determined the outlook of this set of three cases (Duarte Agostinho a.o. v. Portugal and 32 others, Verein KlimaSeniorinnen Schweiz o.a. v. Switzerland and Carême v. France).
Predictably, there were cheers from the side of climate litigation activists and scholars. Although some believed that the Court should have gone further, they welcomed the landmark ruling as a much-needed contribution to the growing body of case-law on the subject. The boos came from quarters that deny that there is a climate crisis, and/or argue that the Court engaged in judicial activism: this, they maintain, is a policy area that is best left to the legislator and the executive.
All this could have been foreseen, and was undoubtedly foreseen by anyone involved in the three cases. What must be difficult to anticipate, though, is how unfair part of the criticism sometimes is. A graphic example was offered by a commentator of The Spectator:
‘We have debated for years whether Britain’s continued membership of the European Court of Human Rights threatens our national security. This ruling means that it will threaten our prosperity and democracy as well. … Claimants alleged that thanks to heatwaves, they need to organise their lives around a weather forecast, and this was a violation of their human rights. The Court agreed’.
Either the author did not bother to read the judgment, or he deliberately misrepresented what the Court actually said:
‘553. However, while it may be accepted that heatwaves affected the applicants’ quality of life, it is not apparent from the available materials that they were exposed to the adverse effects of climate change, or were at risk of being exposed at any relevant point in the future, with a degree of intensity giving rise to a pressing need to ensure their individual protection (…). It cannot be said that the applicants suffered from any critical medical condition whose possible aggravation linked to heatwaves could not be alleviated by the adaptation measures available in Switzerland or by means of reasonable measures of personal adaptation given the extent of heatwaves affecting that country (…)’.
These considerations were lost on the Spectator’s author, who may have sensed a great opportunity to ridicule the Court, no matter what it actually said. Sadly, this is becoming a widespread phenomenon. When the Dutch Supreme Court delivered its carefully drafted judgment in the Urgenda case, critics were quick to point their fingers at these activist judges without engaging with the court’s elaborate reasoning. Perhaps this should come as no surprise since the first comments came in within hours after the judgment was delivered.
In an earlier contribution, Christa Tobler already pointed to the ‘heated public debate’ that took place in Switzerland following the Court’s rulings. Meanwhile, on 13 June, Swiss parliament’s lower house voted to disregard the Strasbourg Court’s KlimaSeniorinnen judgment. This is climate change in a very different sense: across the continent post-War Europe’s multilateral institutions are being undermined. The erosion takes place at breath-taking speed. Its consequences for the protection of human rights are no less serious than those flowing from the ‘real’ climate crisis.
And what have you done?
So, was the KlimaSeniorinnen judgment a Pyrrhic victory, as Joshua Rozenberg asked in his first comments on the case?
Clearly the Court invested heavily in the three cases. The cases were assigned to the Grand Chamber, an increasingly rare move as the Court generally seeks to deal with its case-load in the most efficient way. The rulings were elaborate and crafted in a precise way. They bring together a wealth of information relating to climate change and engage extensively with the submissions of the parties and the interveners. The considerations concerning the victim requirement (in the Swiss case) and extra-territoriality (in the Portuguese case) are meticulous. The Court was even prepared to change its approach to the standing of associations in climate-change litigation under the Convention, so as to do justice to ‘the special feature of climate change as a common concern of humankind and the necessity of promoting intergenerational burden-sharing in this context’ (§ 499 of KlimaSeniorinnen). In doing so, the Court must have been aware of the question whether this new approach can be limited to climatechange litigation: inevitably, there will be border-line cases. And what about other areas where systemic yet intangible trends have a profound impact on the enjoyment of human rights? Think of situations where the rule of law is under pressure and where the authority of the judiciary is systematically undermined. There will a clear common interest to address these trends, preferably at an early stage when it may be difficult to identify individual victims? Will the Court then deny standing to an NGO representing, say, judges who feel that they are under pressure?
These questions are for another day. Now, one may raise another question: what did all these efforts yield? What, in substantive terms, did the KlimaSeniorinnen judgment tell us? Put briefly, the Court identified, in Article 8 of the Convention, a ‘right for individuals to effective protection by the State authorities from serious adverse effects on their life, health, well-being and quality of life arising from the harmful effects and risks caused by climate change’ (§§ 519 and 544 of the judgment). From this it derived a ‘primary duty’ for the High Contracting Parties,
in line with the international commitments that they entered into, ‘to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change’ (§ 545). This obligation is in turn specified as the requirement ‘that each Contracting State undertake measures for the substantial and progressive reduction of their respective GHG emission levels, with a view to reaching net neutrality within, in principle, the next three decades’ (§ 548). To this end, immediate action must be taken; measures must be defined in a binding regulatory framework, with targets and timelines, followed by adequate implementation (§ 549). The States’ efforts will be assessed by looking at a set of five requirements (§ 550-551). That is not all: these measures must be supplemented by adaptation measures aimed at alleviating the most severe or imminent consequences of climate change (§ 552), while specific procedural safeguards need to be available, too (§ 553-554).
All in all, the Court goes a long way to specify the State’s positive obligation to counter climate change (or rather, mitigate its effects). But, unavoidably, the Court cannot be too specific. The actual measures are for the domestic authorities to decide. In accordance with the principle of subsidiarity, the Court states, the States should be accorded a wide margin of appreciation when it comes to their ‘choice of means, including operational choices and policies adopted in order to meet internationally anchored targets and commitments in the light of priorities and resources’ (§ 543).
War is over, if you want to
The question then is: what next? How to determine whether Switzerland, or any individual Contracting Party to the Convention for that matter, did enough? That will not be an easy question, as the Court acknowledges that ‘each individual State is called upon to define its own adequate pathway for reaching carbon neutrality’ (§ 547). The Court’s standards will need to be operationalised, which will require close reading of the judgment. Undoubtedly different interpretations will be advanced by the various actors that are involved, including, of course, climate change litigators and State authorities.
In future cases – and there will be future cases! – domestic courts will be confronted with these questions. In answering them, they face the dilemma that the Court acknowledges in a slightly different context (§ 484). On the one hand there is the risk of ‘disrupting national constitutional principles and the separation of powers by opening broad access to the judicial branch as a means of prompting changes in general policies regarding climate change’. On the other hand, the Court continues, there is a risk that ‘even obvious deficiencies or dysfunctions in government action or democratic processes could lead to the Convention rights of individuals and groups of individuals being affected without them having any judicial recourse’. Not an enviable position for the domestic courts to be, in at a time that the judicial branch is all too often the subject of criticism. Similar dilemmas will face the Court once it is called upon to rule on follow-up cases: it will need to balance the margin of appreciation, which it usually leaves in areas which are characterised by complex and sensitive policy-making, and its desire to ensure accountability.
But at first instance, it is the Committee of Ministers of the Council of Europe that is called upon to determine whether Switzerland did enough. After all, under Article 46, paragraph 2, of the Convention, the Committee of Ministers shall supervise the execution of the Court’s judgments. It is an interesting exercise to imagine a meeting, in the not-so-distant-future, where the representatives of Switzerland will have to explain to their colleagues whether their country has done enough to fight climate change. Ironically, the resolution of the Swiss parliament, calling upon the government to disregard the KlimaSeniorinnen judgment, may prompt the Committee of Ministers to use the ‘enhanced procedure’. But then: how will this discussion go? No doubt the other Member States have not forgotten the Portuguese case, which was addressed against 33 of them: a reminder that they may be next. Will the Council of Europe Member States be keen to introduce – in this particular context – a mechanism to supervise whether they comply with their obligations under, inter alia, the Paris Agreement?
Much will depend on the role of the Department for the Execution of Judgments, which supports the Committee of Ministers in this area. No doubt civil society will make ample use of the opportunity to submit their so-called Rule 9 observations
John Lennon rightly noted that war is over, if no-one wants it. Unfortunately the opposite is also true. At a time that climate change policies are the subject of increasing tensions in society across the continent, the KlimaSeniorinnen case is far from over.
[1] J. Lennon & Y. Ono, Happy Xmas (War is over) (1972).
R. A. Lawson, chair in European Human Rights Law, Leiden Law School, the Netherlands. E-mail r.a.lawson@law. leidenuniv.nl
Lawson, R.A.; “The Klimaseniorinnen Case: In Search of Substantive Standard”, EU Law Live, 24/06/2024, https://eulawlive.com/op-ed-theklimaseniorinnen-case-in-search-of-substantive-standards/
Just as ripples spread out when a single pebble is dropped into water’- ECHR KlimaSeniorinnen judgement’s systemic effects on the EU legal order
Alicja Sikora-Kaléda
As stated by B.J. Richardson in his book Time and Environmental Law, the temporal challenge of environmental governance ‘is not just to value the future but also to respond and manage a changing future’. The capacity to anticipate should thus encompass a democratic decision-making enabling governance to respond to the societal concerns in a timely manner, one of the key components of democratic processes being access to justice.
With the recent judgement in the Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, notwithstanding controversies surrounding admissibility and technical analysis of the carbon budget, the European Court of Human Rights (ECtHR) proves one more time to hear, in a timely manner, the voice of those it is supposed to protect, taking thus an important step towards managing the changing future. As demonstrated by the endless commentaries varying from a genuine, environmental and human rights enthusiasm to a moderate and critical follow up, including an adverse reaction of the Swiss authorities, tying a link between climate change and human rights through the prism of Article 8 ECHR has already become an incontournable of the international legal toolbox of human rights. It is this link that allows anchoring the constitutional dimension of a climate change and confirming the role of the European Convention on Human Rights and Fundamental Freedoms as the constitutional instrument of ‘European public order’ in the field of human rights and a product of ‘ idealistic realism’ meant ‘to establish a common public order of the free democracies of Europe with the object of safeguarding their common heritage of political traditions, ideals, freedom and the rule of law’ (ECHR admissibility decision, Ukraine and the Netherlands v. Russia, 30 Nov. 2022, No. 8019/16, 43800/14 and 28525/20, para 385).
There is no doubt that climate litigation is a powerful manifestation of constantly rising environmental civic awareness, which is a part of a broader phenomenon of environmental democracy. As climate related issues are debated before international and constitutional courts – the ECtHR, the International Court of Justice, the International Tribunal for the Law of the Sea, the German Federal Constitutional Court – this judicial debate echoes the constitutional dimension of both anthropocentric and ecocentric approaches, human rights, intergenerational rights, common responsibilities and States’ positive obligations in the context of climate change. The concept of environmental democracy also coincides with the theory of the European constitutional space construed as a space with three dimensions ‘judicial, political and civic, where the civic component is to equivalent civil society, one autonomous constitutional actor in the European integration process’ (A. Simoncini).
This Op-Ed aims, accordingly, at shedding some light at the systemic consequences of the KlimaSeniorinnen judgement for the EU legal order, in particular, from the fundamental rights perspective and a status quo according to which the EU legal order does not recognise environmental or climate related fundamental rights, notably in view of the limits enshrined in the Charter of Fundamental Rights, in particular its Articles 37 and 51, the principle of conferral, as well as the rationale of direct effect of the EU directives.
This status quo reflects a certain paradox of the recent evolution of EU law. A transformation of environmental protection in the EU legal order in recent decades justifies the assertion of its constitutional status, whereby it permeates the whole of the EU legal order. Constitutionalisation may be indeed viewed as a reflection of the changing future. In this context, EU environmental law has evolved from a sectoral policy to one of the core, transversal and guiding components of the EU legal order, which is itself anchored in the values on which the Union is founded within the meaning of Article 2 TEU. Likewise, it is uncontestable that EU secondary law is undergoing a wide ecological and climate neutrality reorientation, including with the very recent adoption of the Nature Restoration Law. In parallel, the constant development in the realm of judicial protection is illustrated by the key role of the Court of Justice both exploring the Aarhus Convention environmental procedural rights, and upholding the protective, pro-ecological interpretation of EU law in the spirit of effectiveness,[1] which, as a whole, approaches the environmental rule of law concept.[2] The EU secondary law is constantly empowering individuals via the new instruments such as the internal review under the Aarhus Regulation, targeted access to justice provisions, and the concept of impairment of a right giving wide access to justice under the Ambient Air Quality Directive, the so called ‘green claims’ in the field of consumer protection, and development of corporate due diligence regulatory framework aiming at protecting human rights and environment.
On the other hand, in the realm of the EU fundamental rights, Article 37 of the Charter has been construed as a principle, not a right, within the meaning of Article 52 of the Charter. It is worth however recalling that Article 37 of the Charter represents a systemic potential, as it is anchored in the principles of high level of environmental protection, sustainability and environmental integration. This narrative has not been yet effectively explored in the jurisprudence related to the Charter. Furthermore, a unique attempt of the climate litigation at the EU law level, in Carvalho v Parliament and Council, failed at the stage of admissibility without leading to the substantive analysis of a potential breach of selected provisions of the Charter in the context of a climate change. Indeed, the Court has clarified that the protection conferred by Article 47 of the Charter does not require that an individual should have an unconditional entitlement to bring an action for annulment against an EU legislative act (Carvalho, para 77). Climate litigation closely resonates with the Aarhus Regulation internal review instrument, enabling access to the EU justice. Construing environmental rights under the umbrella of non-contractual liability of Member States for infringement of EU law in the area of air quality has likewise recently failed, not without controversies. Indeed, at the current stage of development of EU law, the limits of the ‘European constitutional imaginaries’ does not allow for the Urgenda-like judgement before the EU Courts. In the light of the draft instruments of accession, the future EU’s accession to the ECHR is not liable to dramatically change upfront the constitutional edifice of the EU fundamental rights.
How could, in such a complex and diverse context, the KlimaSeniorinnen judgement inspire EU law and the Court of Justice?
It is true that in considering the multifaceted system of the fundamental rights protection, be it under the Charter, national constitutions or the ECHR, the Court of Justice is guided by the principles of autonomy, primacy, uniformity and effectiveness of EU law, and the need of harmonious coordination of competing constitutional claims.[3] Contrary to other constitutional areas of EU law, such as judicial independence where the Ástráðsson criteria have enabled the development of a common minimum standard of protection jointly construed by the ECtHR , EU[4] and national courts, there is no similar interaction, not to mention a dialogue between the Court of Justice and the ECtHR in the field of environmental rights.
What could be the ways forward in fostering such an interaction?
First, since the Charter of Fundamental Rights offers an approach of openness towards both national constitutional orders and the ECHR, the Court of Justice could start using Article 52(3) of the Charter as much more than an inspiration and refer to the model ‘par ricochet’, as adopted by the ECtHR under Articles 2 and 8 ECHR in the field of environmental protection and climate change. There is no doubt that the Court of Justice will be, sooner or later, in the context of preliminary rulings, confronted with thorny question of fundamental rights protection in the era of a climate change. Such a question could arise as a matter of interpreting Articles 2 and/or 7 of the Charter coupled with Article 37 of the Charter, as a yardstick of judicial review of EU law. Interestingly, in construing derived environmental rights in EU law, the Charter offers Article 37 as an environmental fundamental rights provision, which could serve as a conceptual consolidating agent of a constitutional relevance. It is not sure whether, firstly, the criteria of ‘actual interference’ with the applicant’s enjoyment of his or her private or family life or home, as developed by the ECtHR, and, secondly, the criterion of certain level of severity under Article 8 ECHR are adequate in the realm of EU law. However, the Court of Justice could build its own novel standard of a derived fundamental right, through the prism of a climate change, drawing upon the criteria applicable to the breach of Article 47 of the Charter and the concept of the essence of fundamental rights within the meaning of its Article 52.
Secondly, situating climate change within the realm of Article 8 ECHR could be explored in the light of the presumption of equivalent protection under the Bosphorus judgement. Indeed, as illustrated in the field of mutual trust by the Avotinš judgement, while the ECtHR applied Boshoprus presumption, it still verified whether the level of protection resulting from the Convention was not manifestly insufficient in EU law. In this respect, the ECtHR’s KlimaSeniorinnen judgement may trigger new litigation strategies, even before the EU’s accession to the ECHR, and raise unprecedented issue of the lack of recognition of environmental fundamental rights in EU law notwithstanding the most advanced environmental legislations and climate neutrality ambitions of the Union.
Thirdly, as demonstrated by the case-law of the Court of Justice, the values contained in Article 2 TEU, in particular the respect for fundamental rights, have been identified and are shared by the Member States. They define the
very identity of the European Union as a common legal order. Thus, the European Union must be able to defend those values, within the limits of its powers as laid down by the Treaties (C-157/21, Poland v. European Parliament and Council, para.145). This proactive approach to the defence of Union values could trigger the EU legislator to reflect upon new, horizontal instruments of legal protection, for instance, protecting new compartamentalised fundamental rights as such the right to clean air. Given that individuals might have difficulties in meeting the admissibility criteria, collective actions, already existing in the consumer’s law, could be further expanded. The novel dimension of militant Union’s constitutional identity could be relied upon by the Court of Justice to justify the ‘derived environmental rights’ approach. Given the clear limits of the Charter, the approach of principles is a relevant alternative. A new general principle of a high level of environmental protection law anchored in the triple legal basis of Articles 3 TEU, 191 TFEU and 37 of the Charter has already been analysed in the case-law and legal doctrine
Fourthly, the ongoing discussion regarding the judicial protection and fundamental rights in the field of the CFSP, as the last controversial component of the EU’s accession to the ECHR, could be, per analogiam, explored for linking the planetary challenge of the climate change and protection of fundamental rights. In her Opinion in cases KS and KD, AG Ćapeta, emphasised that in order to ensure the effective judicial protection of individuals who claim that their fundamental rights, as guaranteed by the EU legal order, have been infringed by EU institutions or bodies, the EU Courts must, in principle, have jurisdiction to hear such claims. Since the climate and environmental rights are not apparently ‘guaranteed’, as fundamental rights, by the EU legal order, the Court of Justice could, drawing inspiration from the KlimaSeniorinnen judgment, in the light of Article 52(3) of the Charter, engage in a process of ‘judicial anticipation’ similar to the one underlying the ADBHU case where the Court ‘without any explicit legal basis—and in the context of a Treaty, one of whose main aims was the elimination of trade barriers—declared environmental protection to be one of the essential objectives of the Community’ (F. Jacobs). Such an approach would create a link between the fundamental rights and climate change in EU law.
Finally, it goes without saying that the most likely instance to raise all abovementioned questions is the national judge in the context of a judicial dialogue under Article 267 TFEU. However, as noted by the ECtHR, tackling climate change, especially given fundamentally subsidiary role of the Convention, remains in the hands of the domestic policy-makers enjoying the direct democratic legitimation (KlimaSeniorinnen, para. 449). By extrapolation, primary choices ahead of the Union and its Member States related to climate change will have to be addressed by the Union and national legislators. That being said, the Court of Justice, as a constitutional and supreme Court within the realm of the EU legal order will certainly play an increasingly important role in this area, especially since climate change is ‘no longer merely an issue of politics or policy but also a matter of law’ and ‘bearing in mind the general acceptance that climate change is a common concern of humankind’ (KlimaSeniorinnen, paras 449-451). In this respect, it will be crucial for the Court of Justice to engage into the constitutional dialogue with national courts and remain ‘capable and seen to be capable of comprehending the constitutional sensibilities of the Member States’ (J.H.H. Weiler, Epilogue : The Judicial Après Nice). Just as ripples spread out when a single pebble is dropped into water, the KlimaSeniorinnen is only the beginning, the pebble triggering further constitutional conversations to anticipate a changing future
[1] See cases C-461/13, Bund für Umwelt und Naturschutz Deutschland eV; C-664/15, Protect Natur, Arten- und Landschaftschutz Umweltorganisation, and C-723/17, Craeynest and Others.
[2] C-441/17 R , Commission v Poland (Białowieża Forest); C-752/18, Deutsche Umwelthilfe.
[3] C-399/11, Melloni; C-42/17, M.A.S. and M.B (Taricco II); Opinion 2/13 (Adhésion de l’Union à la CEDH); see for further reading, M. Poiares Maduro, ‘ Three Claims of Constitutional Pluralism’, Constitutional pluralism in the European Union and beyond, 2012.
[4] C-585/18, A. K. and Others v Sąd Najwyższy, CP v Sąd Najwyższy and DO v Sąd Najwyższy; C-132/20 Getin Noble Bank; C-718/21, L.G v Krajowej Radzie Sądownictwa
Alicja Sikora-Kaléda is Senior Lecturer, EU Law Department, Jagiellonian University (Cracow, Poland); Member of the Council Legal Service. All the views expressed are those of the author and do not engage Council of the European Union and the European Council
SUGGESTED CITATION: Sikora, A.; “Just as ripples spread out when a single pebble is dropped into water”- ECHR KlimaSeniorinnen judgement’s systemic effects on the EU legal order”, EU Law Live, 26/06/2024,
SYMPOSIUM
SYMPOSIUM ON THE 2024 REFORM OF THE STATUTE OF THE COURT OF JUSTICE OF THE EU
Breaking with Tradition: Preliminary Reference Reform and the New Judicial Architecture
Takis Tridimas
On 6 March 2024, the Council gave its final approval to the amendment of the Statute of the Court of Justice providing for the transfer of preliminary reference jurisdiction to the General Court (GC). This is the most significant change in the EU’s judicial architecture since the establishment of the Court of First Instance and should be welcomed. It is designed to increase efficiency in the administration of justice and enable the Court of Justice (CJ) to concentrate on the strategic development of EU law.
Given that Article 267 TFEU is the guarantor of uniformity in the interpretation of EU law, sharing jurisdiction on references raises the risk of fragmentation but the new system is carefully crafted and, on a cost benefit analysis, it comfortably passes the test. The reform is based on three pillars: the criterion used for allocating references to the GC is the subject-matter of the reference; it is for the CJ to decide, via a verification process, whether a reference should be transferred to the GC; and a number of safeguards are introduced to make the procedure before the GC similar to that before the CJ. Further safety valves are embedded in the two way elevator system of Article 256(3), paragraphs 2 and 3, TFEU.
Exclusivity and Conceptual Independence
The jurisdiction of the GC to hear preliminary references is subject-matter defined. It does not depend on the seniority of the referring court or on whether the question referred pertains to interpretation or validity. Nor does it depend, in principle, on the importance of the questions raised although, in marginal cases, this is a factor that would be difficult to ignore. Under new Article 50b, paragraph 1, of the Statute, the GC is to have jurisdiction to hear references that come exclusively within the following areas:
• the common system of value added tax;
• excise duties;
• the Customs Code;
• the tariff classification of goods under the Combined Nomenclature;
• compensation and assistance to passengers in the event of denied boarding or of delay or cancellation of transport services; and
• the scheme for greenhouse gas emission allowance trading.
The above areas were suggested by the CJEU and chosen essentially on the basis of four criteria: (a) easiness of identification and distinctiveness; (b) contained importance; (c) the existence of established case law; and (d) volume of litigation. Those criteria are well-conceived but disputes have a cunning, if unintended, habit to combine diverse legal problems. Both conceptually and in terms of judicial policy, a key issue is how to allocate questions referred which straddle matters falling within the above areas and horizontal issues. In an effort to provide more clarification, Article 50b paragraph 2, of the Statute, states that the CJ is to retain jurisdiction to hear references that raise ‘independent questions’ relating to the interpretation of primary law, public international law, general principles of Union law or the Charter. The way the CJ understands that concept will be crucial. Nonetheless, this is not an insurmountable problem. Courts are well used to drawing fine distinctions. Suffice it to make here two observations.
First, the determination whether the reference raises an independent issue is to be made by the CJ at the verification stage. It must therefore be made speedily and, in principle, only on the basis of the order for reference. For the system of transfers to work, efficiency is key. The CJ therefore will need to make a determination whether, on the basis of the information on the file, there is a substantial likelihood that an independent issue of interpretation is raised. Secondly, it is inherent in the reform that the GC will play an enhanced role in interpreting and applying the norms listed in article 50b, paragraph 2, in the specific areas where jurisdiction to it has been transferred. For the transfer of jurisdiction to be meaningful, the frame of mind should be towards empowering rather than limiting the GC. The GC should be able to shape the law in those areas subject to the possibility of CJ review under Article 256(3), third paragraph, TFEU.
Judicial politics: Bureaucracy and Degrees of Separation
In institutional terms, the big winner of the reform is the EU judiciary. The GC acquires a role in ensuring the uniform interpretation of EU law and its status is enhanced whilst the CJ gets more time to focus on the strategic development of EU law. The reform serves as a recognition of the CJ’s gradual evolution to the supreme court of the Union. In the shadows of technical changes, there is a shift in the judicial paradigm. The CJ increasingly becomes the top tier of an expanded centralised judicial bureaucracy. There is an added qualitative element in its jurisdiction which becomes more targeted and selective. The granting of jurisdiction to the GC entails a sharing of preliminary references which differs markedly from the delegation granted to national courts under the CILFIT (C-283/81) – Consorzio (C-561/19) model. The acte clair doctrine is broader both in terms of its remit, since it applies in all areas of interpretation, and in terms of the number of judicial actors to whom decision-making power is entrusted. It is, however, narrower in that the mandate of the national courts is much more circumscribed. By contrast, in the areas covered by the transfer, the GC is entrusted to shape EU law. The risk of fragmentation is more contained as the GC is part of the same judicial structure, owes no allegiance to any national legal order, and is subject to the review mechanism of Article 256(3), paragraph 3, TFEU. It is managed delegation that is designed not to challenge the CJ.
The price to pay is that the reform creates two degrees of separation. To the extent that the CJ’s jurisdiction is more selective, it becomes somewhat more remote from the citizen in relation to some categories of cases. This is inevitable in view of the complexity of the EU and the increase in demand for rulings. Also, the reform accentuates the separation between the EU and the national judiciary. Whether a reference stays with the CJ or goes to the GC does not depend on the seniority of the referring court but on subject-matter. This is a sound, technocratic, criterion. Specialisation carves out a sphere of competence for the GC which, however, disrupts perceived orders of hierarchy: a very senior national court has to converse with, and is bound by, the decisions of the junior Union interlocutor. Subject-matter separation has a subtle effect on judicial ranking. This does not detract from the soundness of the reform but serves to point out that, to maintain legitimacy, the quality of justice at EU level has to be very high and also that the national courts must not, in any way, be considered as supporting acts in the administration of EU justice. Relations between the CJ and the GC will become closer and membership in the latter may increasingly be viewed as a stepping stone to holding judicial office in the former.
Procedural Guarantees to Ensure Uniformity
The amendments to the Statute provide for certain process safeguards with a view to ensuring that the uniform interpretation of EU law is not prejudiced. References will be allocated to GC chamber(s) specifically designated for that purpose (Article 50b(3), paragraph 4, of the Statute). This is intended to promote consistency since all references will all be dealt with by the same chambers. It will also facilitate ‘culture transition’. The GC has built expertise in adjudicating cases which are fact-heavy, require the analysis of complex economic evidence, and demand a painstaking analysis of the evidence. Preliminary references, by contrast, require a craft in interpretation and delicate appreciation of the division of powers between the CJEU and the referring court, which remains competent to decide on the facts and the application of the CJEU’s ruling on them. The exercise of the new jurisdiction requires a rewiring of the judicial mind which is easier to achieve through specialisation within the GC.
A new paragraph (paragraph 4) is added to Article 50 of the Statute, according to which, when it exercises preliminary reference jurisdiction, the GC is to sit in a chamber of intermediate size when a Member State or an institution of the Union that is a party to the proceedings so requests. The avowed objective is to maintain the consistency of preliminary rulings given by the GC.
New Article 49a of the Statute provides that, in preliminary reference cases, the GC is to be assisted by one or more Advocates General. This does not preclude the GC adjudicating a case without an Opinion where it raises no new points of law. The systematic use of advocates general in preliminary references is not justified on grounds of inherent complexity or importance of the cases heard. Many direct action before the GC may give rise to equally, if not more, complex issues of law (see e.g. Kadi, C-315/01 and the Front Polisario cases), given especially that direct actions are not confined to the specific areas in which the GC acquires preliminary reference jurisdiction. It is, rather, justified on grounds of legitimacy and equality of treatment. It reassures national courts and interested
parties that the reference will benefit from the same safeguards as those that apply where a reference is heard by the CJ. It is further justified by the fact that, in Article 267 TFEU cases, there is no appeal to the CJ.
At the instigation of the European Parliament, Article 23, paragraph 5, of the Statute introduces a commendable change: observations submitted by an interested person pursuant to Article 23 must be published on the CJEU website after the closing of the case, unless that person objects. This contributes to transparency and good governance and recognises that references are not just a dialogue between the referring court and the CJEU but may raise issues which affect the interests of many public and private actors. Consideration should be given to extending the obligation of disclosure to pleadings also in direct actions.
Conclusion
The reform takes a big step. It abolishes the monopoly of the CJ to hear preliminary references but it does so within a controlled environment and, if the CJEU is to serve its purpose, it should be seen as a necessity and not as a choice. For the reform to succeed, it is vital that national court have faith on the quality of GC rulings. The amendment to the Statute may be a harbinger to the GC acquiring preliminary reference jurisdiction in more areas. Experience suggests that, once the first step is made, more ground is likely to be covered. This amendment is more likely to be the opening shot rather than the end of the road.
SUGGESTED CITATION: Tridimas, T.; “Breaking with Tradition: Preliminary Reference Reform and the New Judicial Architecture”, EU Law Live, 26/06/2024, https://eulawlive.com/op-ed-breaking-with-tradition-preliminary-reference-reform-and-the-new-judicial-architecture/
Takis Tridimas is Professor of European law at King’s College London.
SYMPOSIUM
COMPETITION CORNER:
SYMPOSIUM ON SELECTIVITY IN STATE AID
Turbulence in the State aid sky: Selectivity as a new justification for discrimination under Articles 107(2)(b) and 107(3)(b)
TFEU?
An analysis of the Ryanair-COVID cases
Sébastien Thomas
Introduction
As is well-known, the COVID crisis severely hit the European economy. As a consequence of the lockdown measures that were adopted by most EU Member States as of March 2020, some economic activities in particular, such as air transport, were faced with unprecedented and unexpected difficulties, as most of the flights had to be cancelled or rescheduled during that period, resulting in a decreased demand for air passenger transport of more than 90 % for some companies.
In this context, the European Commission swiftly adopted a communication setting out a ‘ Temporary Framework for State aid measures to support the economy in the current COVID-91 outbreak’. Soon thereafter, several Member States adopted measures, in the form of individual aid or aid schemes, to support airlines operating in their territory. Those measures, based on Article 107(2)(b) TFEU or Article 107(3)(b) TFEU, depending on the case, were swiftly declared compatible with the internal market by the Commission, without the formal investigation procedure provided for in Article 108(2) TFEU being initiated.
Ryanair challenged most of these decisions before the General Court. In all these cases, Ryanair contested the alleged discriminatory nature of the aid measures approved by the Commission. Ryanair claimed, in particular, that the Commission could not have authorised such aid, as it was contrary to Article 18 TFEU, which prohibits any discrimination based on nationality, and to internal market rules, in particular the freedom to provide services and the freedom of establishment.
In a first series of cases ( T-238/20 and T-259/20), Ryanair challenged the Commission’s decisions declaring the aid schemes adopted by Sweden and France, respectively, to be compatible with the internal market, on the basis of Article 107(3)(b) TFEU, as those aid schemes made the granting of the aid subject to the holding of a licence, and hence the principal establishment, in the Member State concerned.
In a second series of cases ( T-378/20 and T-379/20), Ryanair complained essentially of the use that had been made of Article 107(2)(b) TFEU by Member States, with the approval of the Commission, by adopting individual measures favouring major national airlines, instead of providing compensation to all airlines (including Ryanair) in proportion to the damage that they had suffered as a result of the COVID crisis.
Both the General Court and the Court, on appeal, rejected these claims. While the outcome has been applauded by some commentators, as it leaves a large margin of discretion to Member States in designing their aid measures and in deciding how to best allocate their resources in times of crisis, the reasoning adopted by the EU judges raises important questions in terms of State aid policy. Indeed, EU State aid control is – in principle – meant to achieve the double objective to limit distortions of competition in the internal market and to avoid costly and inefficient subsidy races between Member States (see, inter alia, J. Buendía Sierra, ‘The Role of Competitors in State Aid Procedures’, EStAL 14, Issue 4, 2015, p. 451). One may wonder whether the approval of such massive amounts of State aid, even in times of crisis, without making them available to all airlines (including Ryanair) in proportion to the damage that they have suffered or to their contribution to the national economy, is compatible with those objectives.
Five main takeaways can be found in the Court’s judgments on appeal in cases C-209/21 P, C-210/21 P, C-320/21 P and C-321/21 P :
1. Article 107(2)(b) TFEU is not limited to aid schemes and can be used to compensate one single undertaking for the damage caused by an ‘exceptional occurrence’, even though other undertakings may also have suffered damage caused by the same event.
2. Article 107(3)(b) TFEU can be used by a Member State to grant State aid only to national companies in the light of the particular role of these companies for that Members State’s economy and/or for its connectivity.
3. Articles 107(2) and 107(3) TFEU constitute ‘special provisions’ justifying a derogation to the principle of non-discrimination based on nationality enshrined in Article 18 TFEU.
4. As any State aid is by definition selective, so that it cannot be declared incompatible with the internal market for the sole reason that it would be discriminatory.
5. Therefore, if the aid pursues a legitimate objective under Article 107(2) or (3) TFUE, it does not matter whether, as such or by some of its modalities, it is contrary to Article 18 TFEU or to free movement rules.
As these judgments have already been analysed elsewhere, the present analysis will focus on the reasoning followed by the Court on appeal, as regards the scope of Articles 102(2)(b) and 107(3)(b) TFEU and their relationship with other provisions of the Treaty, such as Article 18 TFEU.
The scope of Article 107(2)(b) TFEU – is there a requirement to grant aid to all the victims of the damage caused by an exceptional occurrence ?
First, as regards the scope of Article 107(2)(b) TFEU, it is worth reminding the reasoning followed by the General Court, which found, in essence, that:
• There is no requirement for Member States to grant any aid to make good the damage caused by an exceptional occurrence within the meaning of Article 107(2)(b) TFEU.
• Specifically, first, while Article 108(3) TFEU requires Member States to notify their plans as regards State aid to the Commission before they are put into effect, it does not, however, require them to grant any aid.
• Secondly, an aid measure may be directed at making good the damage caused by an exceptional occurrence, in accordance with Article 107(2)(b) TFEU, irrespective of the fact that it does not make good the entirety of that damage.
• Consequently, it does not follow from either Article 108(3) TFEU or from Article 107(2)(b) TFEU that Member States are obliged to make good the entirety of the damage caused by an exceptional occurrence, such that they likewise cannot be required to grant aid to all of the victims of that damage. ( T-379/20, paras. 22-25).
As Advocate General Pitruzzella rightly noted in his Opinion, this reasoning suffers from a ‘leap of logic’: ‘It does not logically follow (or necessarily follow, in any event) from the fact that there is no obligation upon the Member States to adopt support measures within the meaning of Article 107(2)(b) TFEU or, in the event that such measures are adopted, to ensure that they make good the entirety of the damage, that that provision may serve as the legal basis for the adoption of aid measures confined to a single undertaking when all the undertakings operating in the market in question have suffered damage.’ (AG Opinion in Case C-320/21 P, para. 15)
The AG proposed, nevertheless, to uphold the General Court’s judgment (and the Commission’s Decision) on the following grounds: ‘[…] the compensatory logic of Article 107(2)(b) TFEU does not preclude the choice of the beneficiary of a measure adopted in circumstances such as [the COVID crisis] from being dictated by specific objectives pertaining to the economic activity carried on by the operator or to its specific characteristics, such as supporting an undertaking which, in normal times, provides a service of general public interest or an undertaking which is vital to employment and therefore to social stability, those objectives being in line with the function of the measure placed at the Member States’ disposal to make good the consequences of the events contemplated by that provision and, in an emergency such as that created by the COVID-19 pandemic, taking on even greater importance.’ (AG Opinion in Case C-320/21 P, para. 17, emphasis added)
The Court essentially confirmed that reasoning, albeit with some nuances, which shows the difficulty faced by it to address this issue convincingly. Indeed, according to the Court : ‘ (…) the objective pursued by Article 107(2) (b) TFEU, which is to compensate for the disadvantages caused directly by an exceptional occurrence, does not mean that a Member State cannot, without that being dictated by a desire to favour one undertaking over its competitors, choose, for objective reasons, to grant only a single undertaking the benefit of a measure adopted under that provision. Moreover, a contrary interpretation of Article 107(2)(b) TFEU would deprive that provision of much of its effectiveness. If that provision only allowed a Member State the option of granting aid to all the victims of an exceptional occurrence without being able to reserve that aid to a limited number of undertakings, or even just one, Member States would often be deterred from making use of that option because of the costs involved in the grant, in such circumstances, of significant aid to all undertakings that suffered damage coming under its authority. It follows from the foregoing considerations that Article 107(2)(b) TFEU cannot be interpreted in the
manner advocated by Ryanair without undermining the objective and effectiveness of that provision.’ (C-320/21 P, paras. 24-26, emphasis added)
The Court held nevertheless that :’(…) aid measures granted under Article 107(2)(b) TFEU which, although intended to make good damage suffered as a result of an exceptional occurrence, are, in fact, motivated by considerations that are arbitrary or unrelated to that objective, such as the wish to favour, for reasons not connected with that objective, a particular undertaking compared with its competitors, especially an undertaking which was already in difficulty before the occurrence of the event in question, cannot be held to be compatible with the internal market. (…) However, contrary to what Ryanair suggests, the mere fact that aid under Article 107(2)(b) TFEU is granted to only one undertaking, as in the present case to SAS, from among a number of undertakings potentially adversely affected by the exceptional occurrence at issue, does not mean that that aid necessarily pursues other objectives to the exclusion of the one pursued by that provision or that it is granted arbitrarily.’ (C-320/21 P, paras. 28 and 31, emphasis added)
While the Court’s reasoning seems to be dictated by a desire of compromise between the willingness to safeguard Member State’s autonomy in times of crisis and the integrity of the State aid rules, it is not easy to draw useful conclusions from it.
Firstly, the Court and the Advocate General did not specify what are the ‘objective reasons’ that may be invoked by a Member State when applying Article 107(2)(b) TFEU for the benefit of only one single undertaking.
Secondly, it is not clear whether only SAS fulfilled those objectives in the case at hand, and to what extent that company could be distinguished from other airlines, such as Ryanair, having suffered from the same ‘exceptional occurrence’, namely COVID. In any event, one may wonder whether such external ‘objective reasons’, can legitimately be taken into account when applying Article 107(2)(b) TFEU. As the Court recalled earlier (C320/21 P, para. 20), since this provision is an exception to the principle of incompatibility of State aid, it should be interpreted narrowly. Are such external objectives not more adequately taken into account within the framework of Article 107(3)(c)TFEU ?
Thirdly, it is not clear either why Member States would ‘often be deterred’ from making use of that provision if another interpretation had been followed, ensuring that all undertakings (or at least those operating in a same economic sector) having suffered damage caused by a same ‘exceptional occurrence’, should be entitled to be equally compensated, in proportion to the damage suffered as a consequence of that event (see also, in that sense, P. Nicolaides, cited above). Arguably, even if a cake is not infinite, one does not see why distributing its pieces equally would deter Member States from baking and serving a cake at all. It seems rather that the here the Member States concerned wanted to have their cake and eat it by applying Article 107(2)(b) to only one carefully selected beneficiary.
One may easily see the potentially problematic consequences of the Court’s interpretation: if a Member State wishes to grant State aid in order to compensate for damages caused by a natural disaster such as a flood, for example, does it mean that, from now on, it can decide to restrict the right to obtain compensation to specific
companies only (although many of them may have suffered damage caused by the same event), on the basis of criteria which are completely unrelated to the objective mentioned in Article 107(2)(b) such as their importance for employment and social stability for example? If yes, would this not amount to an arbitrary discrimination, which the Court precisely wishes to avoid? What are the criteria in order to differentiate between a discriminatory measure which is justified by ‘objective reasons’ and one which is motivated by considerations that are ‘arbitrary’ or not connected to that objective? Further clarification by the Court would certainly have been welcome on this point.
Articles 107(2) and 107(3) TFEU constitute ‘special provisions’ justifying a derogation to the principle of non-discrimination on the basis of nationality enshrined in Article 18 TFEU
A second issue which the Court faced on appeal was the question whether the aid measures granted under Article 107(2) and 107(3) TFEU could not have been declared compatible with the internal market, as they are contrary to the principle of non-discrimination on the basis of nationality (Article 18 TFEU). In this regard the question arises whether, as the General Court found, Article 107(2) and (3) TFEU constitute ‘special provisions’, within the meaning of Article 18 TFEU justifying a derogation to the principle of non-discrimination on the basis of nationality enshrined in that provision.
According to the Court, as any State aid is by definition selective, and therefore discriminatory, it cannot be declared incompatible for reasons that are solely linked to whether the aid is selective or distorts or threatens to distort competition (C-320/21 P, para. 108, and C-209/21 P, para. 32).
Ryanair relied on a constant line of case-law (the ‘Nuova Agricast case-law’), according to which ‘State aid which, as such or by reason of some modalities thereof, contravenes provisions or general principles of EU law cannot be declared compatible with the internal market’ (C-390/06, paras. 50-51, recently confirmed in the Hinkley Point judgment (grand chamber), para. 44.).
The Court reminded, however, that Article 18 TFEU is intended to apply independently only to situations governed by EU law in respect of which the TFEU lays down no specific prohibition of discrimination (C-209/21 P, para. 34 and the case-law cited). Yet, according to the Court, since Article 107(2) and (3) TFEU provides for derogations from the principle that State aid is incompatible with the internal market, and thus allows, in particular, differences in treatment between undertakings, subject to fulfilment of the requirements laid down by those derogations, those derogations must be regarded as ‘special provisions’ provided for in the Treaties, within the meaning of the first paragraph of Article 18 TFEU (C-209/21 P, para. 35 and C-320/21 P, para. 111). The Court confirms, therefore, that it is only necessary to examine whether the difference in treatment brought about by the measure at issue is permitted under Article 107(2) and (3) TFEU. Likewise, the differences in treatment entailed by the aid scheme at issue likewise do not have to be justified on the grounds set out in Article 52 TFEU (C-320/21 P, paras. 112-113, and C-209/21 P, paras. 36-37).
Such a conclusion is far from obvious though and it is difficult to reconcile with the Court’s earlier case-law, which was invoked by Ryanair, with the logic of the State aid rules and with the Commission’s decisional practice.
Firstly, as AG Pitruzzella pointed out in his Opinion, it is not easy to see in Article 107 TFEU a rule for implementing the prohibition of discrimination on grounds of nationality of the same kind as the provisions of the FEU Treaty concerning the four freedoms (e.g. C-181/19, para. 78; and C-591/17, para. 40). As the AG rightly noted, like Article 18 TFEU, the rules of State aid ‘constitute a means for keeping discrimination in check; they themselves do not contain any rule of non-discrimination’ (AG Opinion in Case C-320/21 P, para. 64).
The AG recognised, nevertheless, that Article 107(2) and (3) TFEU ‘in so far as they provide for the compatibility of some aid with the internal market under certain conditions, allow certain differences in treatment where they are necessary and proportionate for the purpose of attaining the objectives contemplated by those provisions and are therefore significant for the purposes of the application of the principle of non-discrimination, as ‘special provisions’ within the meaning of the first paragraph of Article 18 TFEU’ (AG Opinion in Case C-320/21 P, para. 64, emphasis added).
This amounts to the idea that any State aid is by nature selective, but that it should only be authorised for the purpose of attaining one of the objectives contemplated by Articles 107 (2) and (3) TFEU.
It is striking, however, that, while the Court relied on the AG’s Opinion in that regard, it did not require to examine whether the difference in treatment brought by the aid scheme at issue was necessary and proportionate for the purpose of attaining the objective pursued, i.e. either to compensate for the damage caused by an exceptional occurrence (Article 107(2)(b) TFEU) or to remedy a serous disturbance in the economy of a Member State (Article 107(3)(b) TFEU), contrary to the approach also put forward by the GC.
Secondly, it is true that any State aid is selective, in that favours certain undertakings or certain sectors of the economy compared to others, so that State aid ‘cannot be considered incompatible with the internal market for reasons that are solely linked to whether the aid is selective or distorts or threatens to distort competition’ (C-320/21 P, para. 108, and C-209/21 P, para. 32). It does not mean, however, that any State aid is necessarily compatible with the internal market either, as it must fit one of the grounds for compatibility set out in Articles 107(2) or 107(3) TFEU and not contravene other provisions of the Treaty or general principles of EU law. The Court’s reasoning in that respect is tautological and does not really help to answer the arguments raised by Ryanair.
The fact that the Court seems to equate selectivity with discrimination is not new (e.g. C-20/15 P and C-21/15 P, World Duty Free, and C-524/14 P, Hansestadt Lübeck). However, it is quite different to accept that State aid can be discriminatory, even within the scope of application of the objective invoked for its compatibility. State aid may be selective for many reasons, without necessarily being discriminatory within the scope of application of the legal basis used for its compatibility. In the cases at hand, for example, the State aid measures adopted by Sweden and France are selective inasmuch as they are directed only at the air transport sector. They are, moreover, selective, insofar as they apply only to some companies with a ‘national license’, to the exclusion of other airlines
such as Ryanair. While the ‘national license’ condition for grating the aid may, in some cases, be proportionate to achieve the objective pursued, namely to ‘remedy a serious disturbance of the economy if a Member State’, as the GC found, is it still the case if some companies are treated differently than their competitors, while they are in a comparable situation as regards the objective pursued, thereby reinforcing distortions of competition within the market concerned? Is it equally obvious that Member States may discriminate between companies within a same sector, equally affected by an exceptional occurrence such as Covid, for example, when they grant State aid aimed to make good the damage caused by that exceptional occurrence, under Article 107(2)(b) TFEU?
Moreover, reliance by the Court on the Iannelli & Volpi case-law (C-320/21 P, para. 121), is not entirely convincing in that regard. Indeed, in Iannelli & Volpi, the Court merely stated, in essence, that when some aspects of an aid which contravene other provisions of the TFEU are so indissolubly linked to the object of the aid that it is impossible to evaluate them separately, that aid must be examined as a whole, by including those aspects in the assessment of its compatibility with the internal market (C-74/76, para. 14). In other words, as the Court has stated repeatedly since, a State aid which, by itself or by one of its components which is indissolubly linked to that aid, such as its granting modalities or its financing, contrary to other specific provisions of the Treaties or general principles of EU law, such aid cannot be declared compatible with the internal market. It does not mean, however, as the Court seems to suggest, that any discriminatory effect of a State aid is necessarily inherent to that aid and cannot, for that reason, be considered incompatible with the internal market (C-320/21 P, para. 108, and C-321/21 P, para. 96). In fact, as the Court stated in Iannelli & Volpi, ‘the fact that the inevitable consequence of the aid is often protection and therefore some partitioning of the market in question, as far as concerns the production or undertakings which do not derive any benefit from it, cannot imply that the aid produces restrictive effect which exceed what is necessary to enable it to attain the objectives permitted by the Treaty’ (C-74/76, para. 15, emphasis added).
Thirdly, it is not clear why the Court considered that Articles 107(2) or 107(3) TFEU would be ‘deprived of all practical effect’, if they were interpreted consistently with the Nuova Agricast case-law mentioned above. Obviously, a State aid cannot be declared incompatible with the internal market solely because it constitutes selective State aid. It is quite reductive and simplistic to interpret Ryanair’s argument relating to the Nuova Agricast case-law in this way though. The fact that a provision of the Treaty needs to be interpreted in a way which is compatible with other provisions of the Treaty and with general principles of EU law is nothing really new. It is surprising – to say the least – that the Court now seems to consider that adopting such an interpretation for Articles 107(2) and 107(3) TFEU would deprive these provisions of their ‘practical effect’ (‘effet utile’).
One may wonder, therefore, whether the Nuova Agricast case-law is still good law or whether it is ‘not deprived of all practical effect’. Indeed, according to the Court, even if a measure adopted on the basis Article 107(2)(b) or Article 107(3)(b) TFEU entails some difference in treatment (or even if it is discriminatory on grounds of nationality), it is only necessary to examine whether the difference in treatment brought about by that measure is permitted under one of those provisions (C-320/21 P, para. 112, and C-209/21 P, para. 36). In other words, it does not matter whether Ryanair may have been discriminated by the conditions for granting the aid, it is sufficient
that the aid measure pursues one of the objectives mentioned by those provisions, insofar as its beneficiaries are concerned. Any differential treatment seems to be justifiable under Articles 107(2) or 107(3) TFEU as such, without any need to examine its compatibility with other provision of the Treaty or with general principles of EU law. Arguably, this does not leave much scope to the external review of legality set out in the Nuova Agricast case-law.
Fourthly, it is a fact that Member States have only limited resources, so that they need to make policy choices as to how to best allocate the aid that they wish to grant to achieve specific objectives. This does not mean, however, that they should be authorised to grant State aid which, as such or by some of its modalities, openly discriminates between companies in light of its objective (see also P. Nicolaides, quoted above).
It should also be reminded as well that the Commission has only limited discretion within the framework of Article 107(3)(b) TFEU and no discretion at all within the framework of Article 107(2)(b) TFEU. It is for that reason precisely, that the Court has consistently held that those provisions, which constitute derogations to the principle of incompatibility of State aid sate out in article 107(1) TFEU, should be interpreted narrowly (C320/21 P, para. 20).
Finally, the reasoning followed by the Court in that regard appears difficult to reconcile with Commission’s decisional practice, or with the General Block Exemption Regulation (see Article 1(5) GBER). Similar wording also appears in many Commission guidelines. If Articles 107(2) and 107(3) TFEU constitute ‘lex specialis’ allowing State aid to be granted (and to be declared compatible with the internal market) even if it entails a discrimination on the grounds of nationality, why did the EU legislator consider that there was a need to insert such provisions in the GBER?
Conclusion
‘We must adjust to changing times and still hold to unchanging principles.’ This famous quote by former US President Jimmy Carter reflects the necessity of adhering to core principles, such as human rights and the rule of law, especially in times of crisis. The same holds true for the core principles governing the rules on State aid.
The outcome of those Ryanair cases may be politically understandable: why should Member States grant State aid to all airlines operating on their territory, when they only wish to ‘save’ their national airlines during turbulent times, in order make sure that those companies will still be able to operate after the crisis, and ultimately to ensure long-lasting connectivity within and out their own territory. The Court’s reasoning to support that outcome is quite unsatisfactory, however, for the reasons mentioned above.
Following these judgments, it is not clear therefore whether the Nuova Agricast case-law mentioned above is still good law and how it should be applied in other cases. One may legitimately wonder whether any aid which is discriminatory – even within the scope of application of one of the grounds for compatibility set out in Articles 107 (2) and (3) TFEU – may now be justified on the basis of the inherent ‘selective’ character of State aid.
It is a pity that the Court did not hold firm on these principles and that the Commission gave up on them so easily in the context of the Covid crisis, as if they had to be ‘suspended’ because of the COVID crisis.
Of course, in the absence of a fully-fledged EU Sovereignty Fund for all sectors of the economy, Member States remain competent to adopt State aid on their own territory (which is the relevant framework to assess selectivity), insofar as such aid is compatible with the internal market. Does it mean however, that it can openly discriminate between national and foreign companies when granting State aid for one of the objectives mentioned in Articles 107(2) or (3) TFEU? In the case of Ryanair, is the consequence of the Court’s judgments that it should have convinced Ireland to adopt a similar aid scheme, rather than complain to the Commission for having approved aid schemes with discriminatory features in other Member States?
As always, ’hard cases make bad law’, so that one can only hope that the Court will clarify in the future that it did not mean that any State aid can be declared compatible with the internal market on the basis of Articles 107(2) and 107(3) TFEU, even if it openly discriminates between companies within the scope of these provisions.
Fragmentation of the internal market and subsidy races between Member States are typically the negative effects of State aid that EU State aid rules aim to avoid. One may wonder whether the Court’s judgments, and the Commission’s decisions in these cases, have contributed to pursue those objectives in the airlines sector.
Sébastien Thomas (LL.M.) is a Senior Advisor in EU & Competition Law in a major law-firm in Luxembourg. Previously, he served as a law clerk for different judges both at the General Court and at the Court of Justice. He was also a Member of the Legal Service of the European Commission (State aid team) and worked as an academic assistant at the College of Europe (Bruges). Sébastien is the co-author of a book in State aid law (in French) as well as several articles and case-law analysis in this field.
SUGGESTED CITATION: Thomas, S.; “Turbulence in the State aid sky: Selectivity as a new justification for discrimination under Articles 107(2)(b) and 107(3)(b) TFEU? An analysis of the Ryanair-COVID cases”, EU Law Live, 25/06/2024, https://eulawlive.com/competition-corner/50637/
THE LONG READ
The European Media Freedom Act: Master of None but Better than None
Olga Batura & Małgorzata Kozak 1
The Evolution of the EU Law Approach to Media
The evolution of EU law in relation to media pluralism and freedom of expression is marked by a combination of the economic aspect of internal market laws, the gradual inclusion of protection of fundamental rights in the scope of EU law, and technological progress in media market. Analysing the role of fundamental rights within the EU legal framework unearths a complex and often strained – sometimes described as ‘anxious’2 or even a ‘love-hate’ 3 – relationship between fundamental rights and economic freedoms of the internal market. The acknowledgment of fundamental rights as an essential component of the general principles of law by the Court of Justice of the EU (‘Court of Justice’ or ‘the Court’) dates back to 1969.4 However, the primarily economic nature of European integration and the supranational quality of the EU’s legal system mean that these fundamental rights are often interpreted through the lens of the internal market’s principles and ‘economic rationality’. 5
Consequently, since the beginning of the European integration, the rulings of the Court of Justice6 on broadcasters’ freedom to offer services7 assessed the compatibility of national laws on broadcasting, program retransmission, and advertising with (the current) Article 56 TFEU. In these rulings, the Court of Justice determined that EU law prohibits constraints on cross-border television services but refrained from advancing further harmonisation measures. Those developments resulted in the adoption of the ‘Television without Frontiers’ Directive8 (now the Audiovisual Media Services Directive (AVMSD)).9 The AVMSD promotes free movement of media services
1. Dr. Olga Batura specialises in the regulation of electronic communications and is a Senior Fellow at the Institute for Information, Telecommunications and Media Law at the University of Münster. Dr. Malgorzata Kozak is Assistant Professor of European Law at Utrecht University School of Law and Centre for Shared Regulation and Enforcement in Europe – RENFORCE. Małgorzata Kozak, ‘The Media Pluralism Principle, The Financing of Public Broadcasters, and EU Law’ German Law Journal 25(1), 2024, pp. 111-127
2. Sybe de Vries, Xavier Groussot & Gunnar Thor Petursson, Balancing Fundamental Rights with the EU Treaty Freedoms: the European Court of Justice as ‘tightrope walker’, Eleven international publishing 2012, p. 10.
3. Antoine Bailleux, Les interactions entre libre circulation et droits fondamentaux dans la jurisprudence Communautaire: Essai sur la figure du juge traducteur, Facultés universitaires Saint-Louis 2009, p. 26.
4. Judgment of 12 November 1969, Case 29-69 Stauder v. City of Ulm, EU:C:1969:57.
5. Daniel Augenstein, ‘Engaging the Fundamentals: On the Autonomous Substance of EU Fundamental Rights Law’ German Law Journal 14 (10), 2013, p. 1918.
6. Judgement of 26 April 1988, Case 352/85 Bond van Adverteerders and others, EU:C:1988:196; Judgment of 25 July 1991, Case C-288/89 Stichting Collectieve Antennevoorziening Gouda and others, EU:C:1991:323; Judgment of 25 July 1991, Case C-353/89 Commission v Kingdom of the Netherlands EU:C:1991:325.
7. Judgment of 30 April 1974, Case C-155/73, Sacchi, EU:C:1974:40, para. 6.
8. Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities [1989] OJ L298/23.
9. Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services [2010] OJ L95/1.
and pursues some social and cultural policy objectives, such as removing state restrictions on the production and distribution of media content.10
Finally, the adoption of the EU Charter of Fundamental Rights, especially Article 11, has underscored the inclusion of freedom of expression within the scope of EU law. Understood in the context of Article 10 of the European Convention on Human Rights, Article 11 ECFR encompasses media plurality, with States serving as ultimate guarantors of the freedom of expression, which can only be restricted if deemed necessary.11 Media plurality was connected to the public’s entitlement to access diverse information, grounded in the principle of pluralism.12 The European Parliament has long been striving to safeguard media plurality and diversity through regulatory measures at the EU level. However, these efforts have primarily focused on preserving media plurality amidst growing sector consolidation and rapid technological advancements. Yet, the progress has been hampered by the Commission’s reluctance towards such regulation and its preference to leave media plurality related issues at the discretion of the Member States, presenting ongoing challenges in this area. With the adoption of the European Media Freedom Act (EMFA) in April 2024, this has changed.
The EMFA is the first EU-level legislation specifically focused on protecting media pluralism. At the same time, the sole legal basis for the EMFA is the internal market competence (Article 114 TFEU). On the one hand, this points to the attempt to integrate EU’s economic objectives with its non-economic values, namely the respect for freedom, democracy and human rights (Article 2 TEU). On the other hand, the central concern of the EMFA lies in the realm of culture, as transpires from the EMFA’s explanatory memorandum and preamble. The EMFA focuses firmly on safeguarding media pluralism and freedom, editorial independence, and high journalistic standards - all of which are cultural topics. Because of this, the absence of links to the culture clause of Article 167 TFEU and the lack of reasoning on the selection of the legal instrument of Regulation raise questions.13
As we previously discussed,14 undoubtedly, the EMFA has a noble cause but tries to combine (too?) many instruments. While some of them will be conducive to the regulation’s objectives, others could become countereffective.
10. Perry Keller, European and International Media Law, Oxford University Press, 2011, pp. 121, 128.
11. See also Judgement of 17 September 2009, Case Manole and others v Moldova App, no 13936/02, ECtHR, para. 101; referring to Article 10 ECHR and Recommendation No. R (96) 10 of the Committee of Ministers to Member States on the Guarantee of the Independence of Public Service Broadcasting, 11 September 1996.
12. See Judgement of 24 November 1993, Case Informationsverein Lentia and Others v Austria, no. 13914/88; 15041/89; 15717/89; 15779/89; 17207/90, ECrtHR, para 53; Mario Oetheimer, Freedom of expression in Europe: case-law concerning Article 10 of the European Convention of Human Rights (Council of Europe, 2007).
13. For example, Christina Etteldorf, ‘Why the Words “But” and “However” Determine the EMFA’s Legal Basis’, VerfBlog, 13 June 2023: Lennart Lünemann, ‘Why EU Member States with low risks to media pluralism are so reluctant to support the European Media Freedom Act - Centre for Media Pluralism and Freedom (eui.eu).
14. Olga Batura, & Małgorzata Kozak, ‘Jack of All Trades is a Master of None: European Media Freedom Act Proposal’, EU Law Live Weekend Edition 142.
Enhanced Protection of Journalism and Editorial Independence by the EMFA
The EMFA uses many tried and proven tools characteristic of other legal instruments for establishing and functioning the internal market. The further strengthening of independent national regulatory authorities created by the AVMSD and reinforced by its amendments in 2018 is of particular importance.15 The independence requirements of Article 30 AVMSD develop a direct effect through Article 7 EMFA. Also, national media regulators obtain far-reaching competence to request ‘information and data that are proportionate and necessary for carrying out the tasks’ under Chapter III EMFA, which includes provisions on allocation of public funds for state advertising and supply or service contracts, audience measurement, media privilege on very large online platforms and control of media market concentrations. Another measure typical16 of many recent internal market instruments is the creation of the European Board for Media Services – a replacement for the European Regulators Group for Audiovisual Media Services (ERGA) created by the AVMSD. The Board shall advise and support the European Commission by providing technical expertise, promoting cooperation and information exchange, and drawing opinions on pertinent issues under the EMFA (Article 13 EMFA). Article 14 EMFA establishes a structured cooperation mechanism between media regulators from different countries regarding cross-border issues.
Strengthening national media regulators and providing them with mechanisms for effective cooperation and coordination of their efforts will undoubtedly lead to greater consistency in applying EU law across countries. Strong independent regulators are indispensable for well-functioning markets, which – following EMFA’s logic – also includes media pluralism in media markets. As indicated by Bayer and Cseres, the EMFA is based on the assumption that ‘each Member State has a fully independent NRA that is capable of effectively enforcing media law, including the EMFA when adopted’,17 but in reality, it is not the case everywhere.
These commonly used institutional measures are supported by some novel regulatory approaches tailored to the specifics of media markets. Considering the central role of public service media in many EU countries and their dependency on the government budget, Article 5 EMFA introduced several safeguards for their independent functioning. Public funds for state advertising are an important revenue source for many broadcasters and may be used to exert political influence. Greater transparency around this issue provided by Article 25 EMFA, ensures public control and helps citizens to contextualise the information they receive through sponsored announcements. Editorial freedom and independence are necessary for public service media and private media companies to guarantee plurality of views and information. In addition to the general obligation to respect editorial freedom and independence (Article 4(2) EMFA), Article 6 EMFA contains specific rules to disclose information about
15. See Article 30 of the codified version of the Directive 2010/13/EU of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services, OJ L 095/69.
16. Many boards, bodies and offices have been created recently by EU sectoral legislation. For instance, the Digital Services Act created the European Board for Digital Services. The AI Act launched the creation of the AI Office.
17. Judit Bayer & Kati Cseres, Without Enforcement, the EMFA is Dead Letter: A Proposal to Improve the Enforcement of EMFA, VerfBlog, 13 June 2023.
direct and indirect owners of media outlets, which are one of the main tools in this regard. To increase the effectiveness of the EMFA provisions, the European Commission issued an accompanying Recommendation on editorial independence and ownership transparency18 that suggested specific internal mechanisms for editorial integrity and independence, safeguards to promote the participation of journalists in decision-making in media companies and access to information about ownership and control of media companies.
One more novel measure is the requirement to ensure the protection of journalistic sources and confidential communications, which includes the prohibition of surveillance of journalists (Article 4(3)-(6) EMFA). The protection is extended to freelancers and staff of media companies that may have access to journalistic sources or confidential information due to their professional or regular relationships with the media company or its staff. Together with the anti-SLAPP Directive,19 these measures provide a stronger and more consistent framework for protecting journalists in Europe.
Assessment of Media Market Concentrations
The main new measure aimed at ensuring media pluralism and editorial independence is the assessment of media market concentrations (Article 22 EMFA) in the light of media pluralism. This assessment has been previously discussed and criticised20 at the legislative proposal stage. Unfortunately, most of the previous points of criticism remain valid. The EMFA does not clarify the relation between the assessment of media market concentration and the competition law assessment of concentrations (e.g. whether the latter should take any account of the results of the former, the timing of the two assessments in relation to each other). The EMFA also does not determine the nature of the outcome of the assessment of media market concentrations and what implications it should have for merging companies. The scope of the new procedure is potentially too broad due to the broad definition of media service providers, which includes any online platform provider that provides access to media content (the EMFA does not define ‘media content’).
In addition, the EMFA does not contain any de minimis rules that would exclude smaller concentrations from the assessment – and does not require Member States to introduce such rules. Member States must introduce national rules that allow the assessment of all media market concentrations that could have a significant impact on media pluralism and editorial independence (Article 22 (1) EMFA). It could be argued that the de minimis rule is encoded in the phrase ‘significant impact’. Yet, firstly, it is not clear what the threshold for ‘significant’ impact is. Secondly, the impact needs to be measured within a certain context (e.g. market), which is not indicated in the EMFA. Thirdly, arguably, for editorial independence, any merger would have a potentially significant impact due to the change of the ownership and control of the media company.
18. Commission Recommendation (EU) 2022/1634 of 16 September 2022 on internal safeguards for editorial independence and ownership transparency in the media sector, OJ L 245/56.
19. Directive (EU) 2024/1069 of the European Parliament and of the Council of 11 April 2024 on protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings (‘Strategic lawsuits against public participation’), OJ L 2024/1069.
20. Olga Batura & Małgorzata Kozak, ‘Jack of All Trades is a Master of None: European Media Freedom Act Proposal’, EU Law Live Weekend Edition 142
The media market concentration procedure also raises questions regarding the competences and responsibilities of various authorities. By contrast to the competition law assessment, media market concentrations that are likely to affect the functioning of the internal market for media services are not transferred to the European Commission but are dealt with by the ‘concerned’ national regulator (Article 22 (4) EMFA). The EMFA does not specify what this concerned regulator is (e.g. how to determine who is in charge if merging companies are situated in different Member States). The European Commission may issue an opinion only if the national regulator provided no assessment in the case where the media market concentration may affect the functioning of the internal market (Article 23 (1) EMFA). Yet it is not clear why and in what circumstances the national regulator may decide not to provide an option, considering that it is under an obligation by the EMFA to do so. Moreover, the abovementioned concerns about the independence of some national regulators remain valid. EMFA does not address those concerns.
Consequently, it remains open how the consistent application of EMFA will be ensured. It depends on Member States having the same understanding of media pluralism, which currently does not exist, and how it is to be assessed. The Study on Media Plurality and Diversity Online documents divergences in national approaches to media pluralism. For example, restrictions on market share can be found in 15 Member States,21 and regarding measuring media plurality, the study identifies 142 different methods for measuring media concentration throughout the Union.22 Of the 27, only 12 Member States actually monitor media pluralism,23 and of these, only Belgium and Poland refer to the HHI index.24
Defining the ‘Given Market’ under the EMFA
Because – at least partially – the EMFA is a market regulation, the question of the relevant market definition that should be considered for the assessment of media market concentration is topical. For instance, if this assessment is distinct from the competition law assessment of concentrations,25 does it mean that a different definition or a different mechanism for the definition of the relevant market should be used? Presumably, to distinguish itself from EU competition law, instead of ‘relevant market’, the EMFA preamble uses the term ‘given market’ in this context (Recital 67 EMFA). However, in the absence of clear criteria for market definition, it is difficult to imagine what the ‘given market’ may be: the whole country (e.g. for national newspapers or broadcasters), a specific region (e.g. for regional publications or radio) or even just one city or a city district? Due to the absence of de minimis rules, all scenarios are theoretically possible because Recital 68 EMFA states that ‘the possible impact on the formation of public opinion in significant parts of a given media market’ can be assessed.
21. European Commission, Directorate-General for Communications Networks, Content and Technology, Parcu , Brogi, Verza et al., Study on media plurality and diversity online – Final report, Publications Office of the European Union, 2022, https://data.europa.eu/ doi/10.2759/529019, p. 208.
22. idem, p.243.
23. idem, p. 244.
24. idem, p. 245.
25. Recital 64 EMFA states that Member States should provide for rules and procedures in national law to allow for the assessment of media market concentrations. Such rules and procedures should be independent from competition law assessments.
Considering the above stipulations, it becomes less clear when a media market concentration is ‘likely to impact the functioning of the internal market’. The cross-border effect that Recital 67 EMFA stipulates (i.e. ‘significant influence on the formation of public opinion in a given media market with potential effects on audiences in the internal market’) can make it easy to achieve due to rich linguistic diversity in the EU. For example, Englishlanguage media services are consumed all over the EU. At the same time, there are also small linguistic minorities living at the border regions of just two or three countries (e.g. Rusyns).
Conclusion
The EMFA is a welcome yet not-fully-thought-through attempt to marry the achievement of EU’s economic objectives with promotion of its non-economic values. Some of EMFA’s measures (e.g. strengthening media regulators, protection of journalists) are likely to be effective to foster healthier media ecosystem in Europe. Other measures (e.g. new assessment of media market concentrations) are less likely to reduce the fragmentation of the internal market, which is one of EMFA’s objectives. The EMFA leaves a lot of leeway to Member States, lacks clarity of terminology and instructions and does little to address the consistency in the application of the principles it outlines
HIGHLIGHT F THE WEEK S O
Legal challenge by Euro Asia Cargo against EU Council sanctions, published in OJ
Monday 24 June
Official publication was made of an action brought by Euro Asia Cargo against Council (Case T-232/24), seeking the annulment of two specific EU legislative acts: Council Decision (CFSP) 2024/746 and Council Regulation (EU) 2024/745, both dated 23 February 2024.
Read on EU Law Live
EU adopts 14th sanctions package against Russia amid ongoing aggression against Ukraine
Monday 24 June
The Council adopted its 14th package of sanctions targeting Russia’s ongoing aggression against Ukraine, aiming to intensify economic pressure on Russia, focusing on high-value sectors such as energy, finance, and trade, and preventing the circumvention of existing sanctions.
Read on EU Law Live
Preliminary ruling request on European Arrest Warrant enforcement, published in OJ
Monday 24 June
The Tribunal Judicial da Comarca do Porto, specifically the Juízo Local Criminal de Vila Nova de Gaia in Portugal, lodged a request for a preliminary ruling with the European Court of Justice (ECJ) regarding the enforcement of a European arrest warrant (EAW) in the case against an individual referred to as YX.
Read on EU Law Live
Preliminary reference on interpretation of Article 102 TFEU in the context of alleged margin squeeze applied by a vertically integrated undertaking in the motor fuels market
Monday 24 June
Official publication was made of a request for a preliminary ruling from the Administrativen sad Sofia-oblast (Bulgaria), lodged on 5 April 2024, in case ‘LUKOIL Bulgaria’ EOOD v Komisia za zashtita na konkurentsiata: Case C-260/24, LUKOIL Bulgaria
Read on EU Law Live
General Court to hear two actions against decisions of the Commission refusing access to documents on exclusionary grounds laid down in Article 4 of Regulation 1049/2001
Monday 24 June
The Official Journal of the EU published two actions, brought on 18 and 26 April 2024, by Caronte&Tourist Isole Minori and SmartKid against the European Commission, seeking the annulment of the Commission Decision C(2024) 1118 of 15 February 2024 and decision C(2024) 1065 final of 14 February 2024, in so far as they refuse access to certain public documents, essentially, on the grounds of the exceptions prescribed by Article 4(2) of Regulation 1049/2001 of the European Parliament and of the Council: Caronte&Tourist Isole Minori v Commission (T-208/24) and Smart Kid v Commission (T227/24).
Read on EU Law Live
EU expands sanctions against cyber-attackers targeting Member States and Ukraine
Monday 24 June
The EU imposed additional sanctions on six individuals for their involvement in cyber-attacks targeting critical infrastructure, state functions, and emergency response systems in EU member states and Ukraine.
Read on EU Law Live
Commission informs Apple of its preliminary findings, opens non-compliance investigation, and closes antitrust investigation on in-app payment system and steering
Monday 24 June
The European Commission informed Apple of its preliminary view that its App Store rules violate the Digital Markets Act (DMA), as they prevent app developers from freely steering consumers to alternative channels for offers and content.
Read on EU Law Live
EU fines IFF €15.9 million for obstructing antitrust inspection
Monday 24 June
The European Commission fined International Flavors & Fragrances Inc. (IFF) and its French subsidiary €15.9 million for obstructing an antitrust inspection.
Read on EU Law Live
Preliminary ruling request regarding the implementation of the Commission’s decisions on rural development funding, published in OJ
Tuesday 25 June
The Curtea de Apel Pitești (Romania) submitted a request for a preliminary ruling to the Court of Justice in the case of Porcellino Grasso SRL v. Romanian agricultural authorities (Case C-116/24), which concerns whether Romanian national practices align with EU law, particularly regarding the implementation of the European Commission’s decisions on rural development funding.
Read on EU Law Live
Court of Justice: Ilva steelworks faces potential suspension over environmental and health risks
Tuesday 25 June
The Milan District Court was tasked with determining whether the Ilva steelworks in Taranto, Italy, poses serious threats to the environment and human health, requiring suspension of its operations.
Read on EU Law Live
Court of Justice streaming hearing of case concerning an appeal against judgment of General Court annulling ECB Decision placing Banca Carige under temporary administration
Tuesday 25 June
The Court of Justice’s Grand Chamber hearing in BCE v Corneli; Commission v Corneli (Joined cases C-777/22 P; C-789/22 P), a case concerning an appeal brought on 21 December 2022 by the European Central Bank against the judgment of the General Court in Case T-502/19, Francesca v ECB (Case C-777/22 P) regarding an action under Article 263 TFEU, by which the applicant sought the annulment of ECB Decision ECB-SSM-2019-ITCAR-11 of 1 January 2019 placing Banca Carige SpA under temporary administration, as well as of any consequent or subsequent act, including, inter alia, ECB Decision ECB-SSM-2019-ITCAR-13 of 29 March 2019 extending the period of temporary administration up to 30 September 2019 was streamed on the Court’s website.
Read on EU Law Live
Commission Implementing Regulation prolonging safeguard measure on imports of certain steel products, published in OJ
Tuesday 25 June
Official publication was made of Commission Implementing Regulation (EU) 2024/1782 of 24 June 2024 amending Implementing Regulation (EU) 2019/159, including the prolongation of the safeguard measure on imports of certain steel products.
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Ex Post economic evaluation of Competition Policy: Protecting Competition in a Changing World, report published by DG Competition
Tuesday 25 June
DG Competition published a report titled “Protecting Competition in a Changing World,” analysing the evolution of competition in the EU over the past 25 years.
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Council approves EEA and Norwegian Financial Mechanisms for 2021-2028
Tuesday 25 June
The Council adopted a decision on the signature and provisional application of the agreements on the European Economic Area (EEA) and Norwegian Financial Mechanisms for 2021-2028.
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Preliminary references on the interpretation of the e-commerce Directive, in the context of prohibitions imposed on information society service providers
Tuesday 25 June
Official publication was made of two preliminary ruling requests from the Conseil d’État (France), lodged on 7 March 2024, in WebGroup Czech Republic, a.s., NKL Associates s. r. o. v Ministre de la Culture, Premier ministre and Coyote System v Ministre de l’Intérieur et des outre-mer, Premier ministre
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Commission challenges Microsoft over Teams tying practices
Tuesday 25 June
The European Commission issued a Statement of Objections to Microsoft, alleging that the company had breached EU antitrust rules by tying its communication and collaboration product, Teams, to its widely used Office 365 and Microsoft 365 productivity suites for businesses.
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Court of Justice to hear case on alleged abuse of dominant position of a company charging fees to accommodation facilities for possibly using television and radio sets
Tuesday 25 June
The Official Journal of the EU published a request for a preliminary ruling from the Krajský soud v Brně (Czech Republic), lodged on 29 February 2024, in case OSA - Ochranný svaz autorský pro práva k dílům hudebním, z.s. v Úřad pro ochranu hospodářské soutěže: Case C-161/24, OSA.
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EU officially initiates accession negotiations with the Republic of Moldova and Ukraine
Wednesday 26 June
The European Union officially initiated accession negotiations with both the Republic of Moldova and Ukraine, marking significant milestones in their respective paths toward EU membership.
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EU and Serbia sign agreement to foster cooperation in border management with Frontex
Wednesday 26 June
The EU and Serbia signed an agreement on operational cooperation in migration and border management with the European Border and Coast Guard Agency (Frontex).
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EU reforms electricity market to tackle price volatility and enhance energy transition
Wednesday 26 June
The European Union (EU) enacted both Regulation (EU) 2024/1747 and Directive (EU) 2024/1711 to amend its electricity market framework, addressing the volatility and high prices experienced since September 2021.
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General Court annuls Council’s refusal of education allowance for vocational training
Wednesday 26 June
The General Court (Ninth Chamber, Extended Composition) delivered a judgment in Case T-698/21, involving Georgios Paraskevaidis, an official of the Council of the European Union, against the Council and the European Commission.
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Spanish Tax Lease System: General Court upholds its previous stance regarding the annulment of Commission Decision 2014/200/EU on Spanish State aid measures
Wednesday 26 June
The General Court, sitting in its Extended Composition formation, has delivered today its judgment in a case concerning an action against the Commission’s decision finding that the Spanish Tax Lease System constitutes State aid in the form of a selective tax advantage that was partially incompatible with the internal market: Aluminios Cortizo and Cortizo Cartera v Commission (T-1/14).
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General Court delivers judgment in case concerning European Parliament’s decision lifting Nicolaus Fest’s parliamentary immunity
Wednesday 26 June
The General Court rendered its judgment in a case concerning the request by the applicant, Nicolaus Fest, seeking the annulment of the European Parliament decision P9-TA(2023)0061 of 14 March 2023 on the request for waiver of his immunity (the contested decision): Fest v Parliament (T-305/23).
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Council adopts negotiating position regarding first ever EU legislation safeguarding the welfare of cats and dogs
Wednesday 26 June
The Coreper agreed on the Council’s negotiating mandate on a proposal aiming, for the first time ever, to improve the welfare of cats and dogs by setting minimum EU-wide rules.
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Council adopts mandate for crisis management compulsory licensing
Wednesday 26 June
The Council adopted its negotiating mandate on a regulation for compulsory licensing to manage crises.
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2024 Convergence Report, published by Commission
Wednesday 26 June
The European Commission published the 2024 Convergence Report, assessing the progress of six non-euro area Member States—Bulgaria, Czechia, Hungary, Poland, Romania, and Sweden—towards adopting the euro.
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Court of Justice rules on concerted practices and abuse of dominant position on the perindopril market
Thursday 27 June
The First Chamber of the Court of Justice handed down its judgment in several cases on appeal involving, essentially, actions for annulment, in whole or in part, of Commission Decision No C (2014) 4955 final of 9 July 2014 relating to a proceeding under Article 101 and Article 102 TFEU [AT.39.612 — Périndopril: Lupin v Commission (C-144/19 P) et.seq.
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ECtHR rejects case on Berlin Brandenburg airport planning
Thursday 27 June
In Büttner and Krebs v. Germany (application no. 27547/18), a case revolving around the planning permission for Berlin Brandenburg Airport, the European Court of Human Rights (ECtHR) declared the application inadmissible.
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AG’s Opinion on EU Commission v. Pollinis France concerning access to documents related to guidance document on the risk assessment of plant protection products on bees
Thursday 27 June
AG Emiliou delivered his Opinion in Case C-726/22 P European Commission v. Pollinis France, which involves the Commission’s appeal against a General Court ruling that annulled its decisions to deny Pollinis France access to documents related to a 2013 EFSA guidance document on the risk assessment of plant protection products on bees.
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ECA report on EU gas security framework published
Thursday 27 June
The European Court of Auditors (ECA) released Special Report 09/2024, examining the EU’s gas security of supply in response to the crisis triggered by Russia’s invasion of Ukraine.
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AG Szpunar: Directive 2009/103 precludes national rules which allow for the nullity of a motor vehicle insurance contract to be enforced against a passenger and victim who is also the policyholder
Thursday 27 June
On 27th June, Advocate General Szpunar delivered his Opinion in Matmut (C-236/23), a request for a preliminary ruling from the French Court of Cassation concerning the rules on insurance against civil liability in respect of motor vehicles set out in Directive 2009/103/EC.
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AG Szpunar interprets conditions for the suspension of the surrender procedure in the EU-UK Trade and Cooperation Agreement
Thursday 27 June
Advocate Szpunar delivered his Opinion in Alchaster (C-202/24), a request for a preliminary ruling from the Supreme Court of Ireland concerning the interpretation of the surrender regime between the EU Member States and the United Kingdom, set out in Part Three, Title VII, of the EU-UK Trade and Cooperation Agreement (‘TCA’).
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AG Emiliou: a Member State can rely on Article 33(2)(d) of Directive 2013/32 even if the prior application for international protection was assessed by a different Member State
Thursday 27 June
Advocate General Emiliou handed down his Opinion in Khan Yunis and Baadba (C-123/23 and C-202/23), a set of requests for a preliminary ruling from the Administrative Court in Minden (Germany) concerning the interpretation of Article 33(2) (d) of Directive 2013/32/EU on common procedures for granting and withdrawing international protection.
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AG Campos Sánchez-Bordona: Court of Justice should dismiss appeal against judgment upholding refusal of registration of three protected geographical indications
Thursday 27 June
Advocate General Campos Sánchez-Bordona handed down his Opinion in a case on appeal brought by Cunsorziu di i Salamaghji Corsi against the judgment of the General Court (Second Chamber, Extended Composition) delivered on 12 July 2023 in Case T-34/22, which concerned a claim that the Court should annul Commission Implementing Decision (EU) 2021/1879 of 26 October 2021 rejecting three applications for protection of a geographical indication in accordance with Article 52(1) of Regulation (EU) No 1151/2012 of the European Parliament and of the Council ‘Jambon sec de l’Île de Beauté’ (PGI), ‘Lonzo de l’Île de Beauté’ (PGI), ‘Coppa de l’Île de Beauté’ (PGI): Consortium des Charcutiers Corses (C579/23 P).
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EFTA Surveillance Authority (ESA): Norway’s participation as creditor in the restructuring of the SAS Group does not involve State aid
Friday 28 June
ESA found that Norway’s participation in the restructuring of the SAS Group does not constitute State aid within the meaning of Article 61(1) of the EEA Agreement.
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European Council adopts strategic agenda, appoints top leaders, and addresses key issues for 2024-2029
Friday 28 June
The European Council convened to address several critical issues and establish future directions for the European Union. Read on EU Law Live
EBA and ESMA release Guidelines for Crypto-Asset governance under MiCAR
Friday 28 June
The European Banking Authority (EBA) and the European Securities and Markets Authority (ESMA) released joint guidelines to enhance the governance and regulatory oversight of asset reference tokens (ARTs) and crypto-asset service providers (CASPs) under the Markets in Crypto-Assets regulation (MiCAR).
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Commission approves extension of steel safeguard measure
Friday 28 June
The European Commission published an implementing regulation confirming the extension of the current steel safeguard measure until June 2026.
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