TABLE OF CONTENTS
IN-DEPTH:
And Meroni Spoke Again – the SRB does not Resolve Banks, the Commission does it
Giulio Giacomo Cimini & Marco Bodellini
No compensation for Banca Carige shareholders (Malacalza Investimenti and Malacalza v ECB, T-134/21)
Barbora Budinska
You have Enough Jurisdictions to Choose from as it is (MOL, C-425/22)
Miguel Sousa Ferro
General Court rules Vocational Training as Part of Higher Education (Paraskevaidis v. Council and Commission, T-698/21)
Anaïs Guillerme & Louise Bouchet
Communication to the Public of Musical Works: The Court of Justice Clarifies but does not Change its Tune (C -135/23, GEMA)
Manon Verbeeren
SYMPOSIUM ON THE 2024 REFORM OF THE STATUTE OF THE COURT OF JUSTICE OF THE EU
‘The Proof is in the Pudding’: Some Thoughts on the 2024 Reform of the Statute of the Court of Justice from a Highest National Court
Corinna Wissels & Tom Boekestein
COMPETITION CORNER: SYMPOSIUM ON SELECTIVITY IN STATE AID
Selectivity in the Spanish Tax Lease case: Discretion of public authorities
María López Ridruejo and Alexandre Picón
THE LONG READ:
The Persian jurist in Luxembourg. On the decentralisation of the preliminary ruling procedure
Ricardo Alonso García
HIGHLIGHTS OF THE WEEK
IN-DEPT H
And Meroni Spoke Again – the SRB does not Resolve Banks, the Commission does it
Giulio Giacomo Cimini & Marco Bodellini
On 18th June 2024, the Grand Chamber of the Court of Justice delivered its judgment in an appeal that had been filed by the EU Commission against a decision of the General Court (C-551/22 P). The latter, with judgment
T-481/17 of 1st June 2022, had dismissed as unfounded an application lodged by Fundación Tatiana Pérez de Guzmán el Bueno and SFL, two former shareholders of Banco Popular Español, S.A. The latter were seeking annulment of Decision SRB/EES/2017/08 of the Single Resolution Board (SRB) by means of which, famously, the Spanish credit institution was resolved and later sold to Banco Santander S.A. for € 1 in what became the first case of resolution in the Banking Union.
As is well known, Banco Popular was an ECB-supervised entity which, on 7th June 2017, having been assessed by both the SRB and the ECB to be failing or likely to fail as under Regulation (EU) No 806/2014 (so-called SRMR), was placed under resolution. As a matter of fact, the procedure was deemed to be the only viable option to achieve the resolution objectives laid down in Art. 14 SRMR.
Amongst the tools offered by the new European resolution framework, the sale of business was the selected one, immediately preceded by the discharge of a write down and conversion of capital instruments. Consistently with the framework, the onus of implementing the resolution befell the Spanish Resolution Authority.
The bone of contention, which the two aforementioned shareholders strived to have annulled, was the resolution scheme prepared by the SRB together with the public interest assessment contained therein.
Thus, a first question in the case at stake is whether a resolution scheme is capable of producing binding legal effects vis-à-vis third parties or it should be considered a mere intermediate act as it lacks the necessary endorsement by the Commission. In other words, whether it is a challengeable act for the purposes of Art. 263 TFEU.
A second issue, on the other hand, concerns the liability for the act. The Commission challenged the General Court’s ruling and pleaded instead that, since the resolution scheme only produces legal effects once it is endorsed by the Commission, the request should have been declared inadmissible rather than unfounded.
For their own part, the SRB and the two shareholders claimed that the role of the Commission is in fact marginal in the process. They noted, inter alia, that, pursuant to Articles 7, 18 and 20 SRMR, the SRB is the one responsible for planning, devising and adopting the resolution scheme, whereas the Commission and, depending on the situations, the Council are confined to a mere participation in the review of the discretionary aspects of the resolution scheme.
According to this argumentation, the legal and political responsibility with which the Commission is entrusted in the resolution process simply amounts to a necessity that the decision be formally compliant with the so-called Meroni doctrine. I.e., the principle designed in the context of the judgment of 13th June 1958 Meroni v High Authority (EU:C:1958:7) according to which discretionary powers cannot be delegated to autonomous entities –the SRB in the case at hand – which have not been provided for in the Treaties. An eventual review by the Council would therefore not alter the de facto situation. To support such a view, the SRB, highlighted how Art. 86 SRMR explicitly allows for a proceeding to be brought before the Court of Justice to contest a decision taken by the SRB.
The procedural framework under scrutiny
In terms of what the EU legislation actually foresees, it must first be borne in mind that, whenever a credit institution finds itself in a failing-or-likely-to-fail situation, where there are no reasonable prospects of alternative private sector measures and a resolution action would be in the public interest, it falls on the SRB to act by adopting a resolution scheme, as envisaged by Art. 18 SRMR. Yet, at this stage the SRB is assisted by the ECB as the two carry out somewhat parallel and complementary tasks.
What matters for the present purposes is that, once a resolution scheme is devised, the SRB must transmit it to the Commission, within 24 hours. In turn, the Commission will have to decide to either endorse it or object to its discretionary aspects and, within 12 hours, propose to the Council that it approve it or object to it.
Only then, once no objection has been expressed by the Council or by the Commission within 24 hours from its adoption by the SRB, does the resolution and its content enter into force.
Occasionally, should the Commission and/or the Council object – and they are compelled to provide reasons for it – or propose modifications, the SRB is obliged to modify the resolution scheme accordingly. It must do so in no more than 8 hours. Furthermore, should the Council object to the placing of the bank under resolution, the institution will have to be wound up according to the applicable national proceedings and the resolution scheme shall be scrapped.
The position of the Grand Chamber
According to the Grand Chamber’s reasoning, no doubt can be nurtured as to the fact that binding legal effects are indeed produced by a resolution scheme. Yet, such effects, because of the Meroni doctrine as it was transplanted in the procedural precautions of the SRMR and particularly in its Art. 18, unavoidably depend on the Commission’s endorsement.
In this respect, regardless of the wording that may have been chosen in the resolution scheme at issue – e.g., the SRB decides – certain Treaty-based institutions must be involved, although in a balanced way. A way that could both ensure the operational independence of the SRB and avert a loose delegation of powers. In fact, the Meroni judgment warned against degrees of latitude which imply a wide margin of discretion. It also further assumed
that limiting oneself to the mere power to approve or refuse sterilely a decision taken elsewhere would amount to the same broad delegation of power.
That the responsibility for the final assessment of the discretionary aspects of an SRB-designed resolution scheme lies with the Commission is clear. Based on this, self-evident would be the provisions of Art. 18(7) and 18(8) SRMR which grant the Commission the power to substitute the SRB’s assessment with its own or the Council the possibility to disavow the SRB’s evaluation about the existence of a public interest.
This is why the findings of the General Court have been deemed by the Grand Chamber to be mistaken inasmuch as they disregarded both the concrete powers conferred to the SRB by the SRMR and the Meroni doctrine from which they derive. In particular, the view initially upheld by the General Court according to which the Commission, although empowered with the capacity to make the resolution scheme enter into force, would not be entitled to amend or object to the technical aspects is evidently overruled. According to the Grand Chamber, a distinction between technical and discretionary aspects cannot be drawn in order to determine the act against which an action may be brought when the scheme has been ‘endorsed in its entirety by the Commission’. Thus, ‘(o)nly the measure which, at the end of the procedure, definitively lays down the position of the competent EU institution (…) is capable of forming the subject matter of an action for annulment’.
In view of the foregoing, the Grand Chamber decided to set aside the General Court’s judgment in so far as it had found the request for annulment of the SRB’s decision, later endorsed by the Commission, to be admissible.
Conclusion
Upon closer examination, the so-called Veneto Banks case of 2017 had already testified to the powerful political prerogatives that the Commission can exercise should it not share the SRB’s views on the existence of a public interest in resolving a credit institution. Nonetheless, whether this judgement contains enough arguments to convince those who harbour suspicions that the Meroni doctrine is now a withered institutional hope, especially after judgment C-270/12 of 2014 – known as United Kingdom v Parliament and Council – might still remain a different story. The wording ‘endorsed in its entirety’, for instance, might prove consequential in opening a pandora vase of those instances where the resolution scheme is the result of a partial modification.
What is certainly apparent, though, is that the importance of the old Meroni doctrine has been revitalised by the Grand Chamber. What is more, the doctrine, rather than being the mere historical origin of an institutional principle, has been used to legitimise the rationale for certain provisions as well as to interpret them in case of doubt.
A true doctrine. A real dogma.
Giulio Giacomo Cimini is a financial lawyer based in Milan and teaching assistant at University of Bergamo
Marco Bodellini, University of Luxembourg, is the author of International bank crisis management – a transatlantic perspective, Oxford, 2022
SUGGESTED CITATION: Bodellini, M. and Giacomo Cimini, G.; “And Meroni Spoke Again – the SRB does not Resolve Banks, the Commission does it”, EU Law Live, 12/07/2024, https://eulawlive.com/op-ed-and-meroni-spoke-again-the-srb-does-not-resolve-banks-the-commission-does-it/
No compensation for Banca Carige shareholders (Malacalza Investimenti and Malacalza v ECB, T-134/21)
Barbora Budinska
1. Introduction
On 5 June, the General Court dismissed the action for damages brought by Malacalza Investimenti Srl and Vittorio Malacalza against the European Central Bank (‘ECB’) (Malacalza Investimenti and Malacalza v ECB, T-134/21). The case concerned measures taken by the ECB in its supervisory capacity in respect of Banca Carige, an Italian bank in which the applicants were shareholders.
2. Background to the dispute
Banca Carige is directly supervised by the ECB under the Single Supervisory Mechanism (see Regulation No 1024/2013, hereinafter: the SSM Regulation). It had been suffering from a capital shortfall for years. After unsuccessful attempts to increase its capital, several members of its board of directors had resigned. The ECB adopted various measures to ensure that Banca Carige complied with the prudential requirements, including a decision to place the bank under temporary administration (see also Corneli v ECB, T-502/19). The temporary administration lasted for about 13 months until the implementation of a capital increase and the election of a new board of directors and a new supervisory board in January 2020. The applicants claimed that the ECB was liable for the damage caused by eight instances of unlawful conduct which infringed several provisions of Union and Italian law ( T-134/21, paras. 2-28).
3. The General Court’s ruling
3.1. General observations
Before examining the claims, the General Court made three observations based on which it concluded that the non-contractual liability of the ECB as a prudential supervisor is established on the basis of the same conditions as the liability of any other Union institution or of the Member States. Firstly, the applicants must prove that the ECB acted unlawfully, prove the existence of damage and establish a causal link between the conduct and the damage. The first condition is fulfilled when the conduct relates to a rule of law intended to confer rights on the person(s) invoking it. In addition, the breach must be sufficiently serious, which is the case where the ECB seriously and manifestly disregards the limits of its discretion. The General Court concluded that the assessments made by the ECB in its capacity as prudential supervisor justify granting it a broad margin of discretion.
Secondly, the General Court explained that the ECB’s liability could not be excluded on the basis of the Peter Paul judgment (C-222/02), in which German legislation excluding the liability of national supervisors was considered compatible with Union law. According to the General Court, this exclusion was linked to the fact that the national supervisors carried out functions in the public interest. Similarly, the liability of the Union institutions is excluded when a rule pursues an objective in the public interest. However, liability may be established when a rule is intended to confer rights on individuals.
Finally, the General Court rejected the ECB’s argument that it was necessary to follow the example of the majority of Member States and limit the ECB’s liability to cases of intentional fault and serious misconduct. According to established case-law, both at EU and national level, the right of individuals to compensation cannot be made subject to additional conditions beyond a sufficiently serious breach of Union law ( T-134/21, paras. 33-58).
3.2. Individual claims
The General Court rejected or declared inadmissible all complaints either because the rules allegedly infringed by the ECB did not confer rights on the applicants or because the ECB acted within the limits of its discretion or because the applicants failed to prove that the conditions giving rise to the ECB’s liability were fulfilled.
In particular, the General Court held that Articles 53(1)(d-bis), 53bis(1)(d) and 67(1)(e) of the Italian Consolidated Law on Banking impose on the ECB an obligation to publish certain information in order to ensure the proper functioning of the markets. However, they do not impose on the ECB an obligation to correct statements concerning the bank’s soundness made by some stakeholders, such as the bank’s directors, and deemed incorrect by others, such as the applicants (paras. 59-75) Moreover, the General Court rejected the claim that the ECB had infringed Article 56 of the Consolidated Law which confers on the competent authority the power to assess the statutes of banks. The purpose of this provision is to ensure the stability of banks and the financial system, and not to confer rights on individuals (paras. 87-94). Furthermore, Article 69octiesdecies (1)(a) of the Consolidated Law, which gives the ECB the discretion to adopt early intervention measures, has the objective of protecting the stability of the financial system and does not confer rights on shareholders (paras. 118-129). Moreover, Articles 4 and 16 of the SSM Regulation are also not intended to confer rights on individuals. Instead, the former implements ‘the general objective of organising a regulatory system relating to an area of activity in the public interest’ and the latter ‘structures the operation of the system of banking supervision in the public interest’ (paras. 76-86).
In contrast, the General Court found that Article 71(6) of the Consolidated Law, which provides that a temporary administrator must be free from conflicts of interest, is intended (also) to confer rights on individuals. The requirement to be free from a conflict of interest falls within the scope of the principle of impartiality, which, inter alia, protects the interests of individuals adversely affected by such a conflict. However, having regard to the reasons which led to the imposition of temporary administration and the ECB’s broad discretion, the General Court concluded that, when selecting the temporary administrators, the ECB remained within reasonable bounds of its discretion (paras. 95-117).
The General Court also acknowledged that the principles of equal treatment, proportionality, and of the protection of legitimate expectations, as well as the right to property (Article 17(1) Charter) are intended to confer rights on individuals. However, it rejected or declared inadmissible all claims alleging a sufficiently serious breach by the ECB of these principles and rights (paras. 144-167, 175-197, 208-215).
4. Concluding remarks
Malacalza Investimenti and Malacalza v ECB is the first judgment to address and assess (some of) the conditions under which the ECB may incur non-contractual liability when acting in its capacity as prudential supervisor. In addition to explicitly stating that the ECB can be held liable under the same conditions as any other Union institution or the Member States, the General Court implicitly held that the same conditions apply irrespective of whether the alleged breach relates to provisions of Union law or to provisions of national banking law which the ECB is competent to apply pursuant to the first subparagraph of Article 4(3) of the SSM Regulation. Moreover, the judgment indicates that one of the main hurdles in establishing the ECB’s liability is to demonstrate that the allegedly infringed rules confer rights on individuals. Rules on prudential supervision and banking regulation typically pursue public interest objectives, such as the stability of the banking sector. Some of these rules might (also) be intended to confer rights on individuals, but this must be established on a case-by-case basis.
Barbora Budinska is a lecturer at Leiden Law School’s Europa Institute and a member of the Young Researchers Group of the European Banking Institute.
SUGGESTED CITATION: Budinska, B.; “No compensation for Banca Carige shareholders (Malacalza Investimenti and Malacalza v ECB, T-134/21)”, EU Law Live, 09/07/2024, https://eulawlive.com/analysis-no-compensation-for-banca-carige-shareholders-malacalza-investimenti-and-malacalza-v-ecbt-134-21-by-barbora-budinska/
You Have Enough Eurisdictions to Choose from as it is (MOL, C-425/22)
Miguel Sousa Ferro
On 4 July 2024, the Court of Justice (5th Chamber) issued its judgment in MOL (C-425/22), arriving at the conclusion which had been proposed by AG Emiliou
The Facts
An action for damages was filed in October 2019 before a Hungarian court by a Hungarian parent company (MOL Magyar Olaj- és Gázipari Nyrt., ‘MOL’), following-on from the first European Commission decision relating to the trucks cartel. It claimed to have suffered indirect damage, as a result of the losses passed on to it by its subsidiaries who had purchased trucks in other Member States.
The 1st and 2nd instance courts dismissed the action on jurisdictional grounds. The Hungarian Supreme Court submitted questions to the Court of Justice, to clarify whether MOL was entitled to file its claim before the Hungarian courts.
Precedents
Injured parties always have the option of suing before the courts of the seat of one of the defendants, under Article 4(1) of Regulation (EU) 1215/2012 (MOL, para. 42).
In the case of antitrust infringements, this option is complemented by a second one: suing at the ‘place where the harmful event occurred’, within the meaning of Article 7(2) of Regulation (EU) 1215/2012.
The case-law (maxime Volvo, Tibor-Trans and CDC Hydrogen Peroxide) had already clarified that this covers both the place where the damage occurred (the place where its own registered office is located) and the place of the event giving rise to it (the cartel agreement or one agreement in particular), so that the defendant may be sued, at the option of the applicant, in the courts for either of those places.
If an antitrust practice affected the market of a given Member State, and the damage is alleged to have occurred in that Member State, its courts have jurisdiction under Article 7(2).
But this concept cannot be interpreted so extensively as to encompass any place where the infringement generated adverse indirect consequences. We already knew this excluded financial damage deriving from initial damage suffered by a directly injured person in another State (Tibor-Trans, paras. 28-29).
The Novelty of MOL
In its ninth judgment in the context of a referral arising from a trucks cartel action for damages, the Court of Justice was asked whether the economic unit principle can be used to broaden jurisdiction as determined by Article 7(2) of Regulation (EU) 1215/2012.
Specifically, may an indirectly harmed parent company sue for damages in the Member State of its seat (which was also affected by the cartel in question), where no defendant is based, when the direct harm was suffered by its subsidiaries from other Member States and passed on to it financially (not as an indirect purchaser)?
The Court has answered that it cannot.
The ‘place where the harmful event occurred’ does not include the seat of that parent company (para. 46). To decide otherwise would contradict the objectives of proximity and foreseeability, as well as the coherence between the forum and the applicable law (paras. 37-44).
Discussion
This case is not about whether the claimant had a right to claim for damages, deriving directly from EU Law.
After Otis, it is clear that this right is granted directly by EU Law to an even more indirectly affected person. This is so, not because of the economic unit, but because of the Court’s broad approach to causality.
The Court did not exclude the possible existence of indirect damage (para. 32), and emphasised that this interpretation did not prevent the claimant from seeking damages (para. 37).
Indeed, the claimant could have chosen to file its claims in, at least, any of the Member States of: (i) the legal persons addressees of the EC Decision; (ii) the parent companies of those addressees; (iii) the subsidiaries of those addressees engaged in the economic activity in question; and (iv) the place where the (direct) damage occurred (seat of its subsidiaries who purchased the trucks). If it wanted to file a single action for all of its damage, deriving from trucks purchased in various Member States, it could have done so in any jurisdiction of the domicile of an anchor defendant.
One should keep in mind the second question, which the Court did not have to reply to. That question stressed an important feature of this case: the claimant had only become the parent company after the purchase of the trucks by the affected subsidiaries (para. 47). Thus, a different ruling would have meant, in practice, that injured legal persons could choose to litigate in any Member State, simply via corporate restructuring. What would prevent the creation of a holding company in the most attractive forum, to benefit from what the claimant might perceive as particularly favourable conditions to litigate?
Incidentally, a similar issue arises if legal persons were allowed to assign jurisdiction to any Member State simply by changing the Member State where they are based. From the current case-law, one imagines that such a change would not retroactively alter the place where the damage occurred.
The legal presumptions of 10% surcharge caused by cartels in Hungary and Latvia, and of 20% caused by cartels and abuse of dominance in Romania, are examples of the type of rules which may create incentives to litigate in jurisdictions which may not be the closest to the infringement or to the damage.
The Court of Justice worked on the assumption that only non-Hungarian subsidiaries had been directly injured by the cartel (paras. 30 and 16). Thus, it seems that, despite language suggesting the contrary, the mentioned Hungarian subsidiary did not purchase trucks (paras. 9 and 12-13).
What if it had? The question remains open of whether, for that subsidiary’s trucks, the Hungarian courts would have had jurisdiction. Arguably, it would have had, as the harm, for those trucks, was indeed directly felt by the subsidiary in Hungary (a market affected by the cartel). The cartel members reasonably expect to be sued for those trucks in Hungary.
Could this outcome have been avoided by the claimant, with a different configuration of its claim? Did none of the cartel members have a subsidiary in Hungary active in the economic activity in question, liable under the Sumal case-law? Could the claim have been filed against that subsidiary, in addition to other legal persons, allowing it to act as an anchor defendant? In such a scenario, could the cartel members have successfully argued that it was not foreseeable that they could be sued in Hungary for damage caused by a cartel that affected the Hungarian market, and where at least one of the undertakings was active through a subsidiary?
MOL shows the Court will not allow claimants to push the law too far. When it comes to jurisdictional issues, the current solutions provided by the case-law are, in principle, enough to ensure adequate protection of the effectiveness of claimants’ right to damages. While some problems merit further discussion, such as the impact on effectiveness of the costs of litigating in other jurisdictions, or (in exceptional circumstances) even of translating court documents to the language of another Member State to carry out service of claims (see the upcoming judgment in C-632/22, Transsaqui), defendants are entitled to legal certainty and foreseeability, to receive documents in a language they understand, etc.
MOL argued that the concept of economic unit must be interpreted harmoniously for claimants and defendants. The Court did not disagree with that. But this does not lead to the consequences intended by MOL. For defendants, the economic unit also does not change the rules of jurisdiction. It impacts who is liable. And then the rules of Regulation (EU) 1215/2012 are applied to determine which courts have jurisdiction, in light of the configuration of the action.
The concept of economic unit may extend jurisdiction by increasing the range of liable legal persons, but it does not impact the right to damages, nor the assessment of the place where the damage occurred.
Miguel Sousa Ferro is a Professor at the University of Lisbon Law School and Managing Partner of a law firm in Lisbon.
SUGGESTED CITATION: Sousa Ferro, M.; “You have enough jurisdictions to choose from as it is (MOL, C-425/22)”, EU Law Live, 12/07/2024, https://eulawlive.com/op-ed-you-have-enough-jurisdictions-to-choose-from-as-it-is-mol-c-425-22/
General Court rules Vocational Training as Part of Higher Education (Paraskevaidis
Anaïs
v. Council and Commission, T-698/21)
Guillerme & Louise Bouchet
In the recent case of Paraskevaidis v. Council and Commission (T-698/21), the General Court of the European Union annulled the Council’s decision to deny the applicant, an EU official, an education allowance for his daughter’s vocational training. The General Court ruled that the training should be considered as higher education under Article 3(1) of Annex VII to the Staff Regulations, which set out the conditions to receive education allowance. Additionally, the General Court clarified the procedural issues regarding the authority responsible for complaints when powers are delegated between EU institutions.
Background
The European Commission’s Office for the Administration and Payment of Individual Entitlements (PMO) initially granted the applicant’s daughter an education allowance for her vocational training program from November 2019 to August 2020. However, the PMO later revoked this allowance, claiming that the program did not meet the ‘high level’ criteria under the European Credit System for Vocational Education and Training (ECVET). The applicant subsequently lodged complaints with both the Council and the Commission.
During the pre-litigation proceedings (complaint phase), the PMO relinquished its authority over educational allowances back to the Council, after which the Council rejected the applicant’s complaint. However, the reasoning in the Council’s decision diverged significantly from the PMO’s initial ruling, emphasising a qualitative evaluation of the training program rather than a quantitative criterion such as ECTS credits.
Legal Analysis
Firstly, the General Court analysed the admissibility of the applicant’s action against both the Council and the Commission. The General Court ruled the action against the Commission’s decision as inadmissible, referring to well-established case law, recently reaffirmed in recent cases like AL/Commission, (T-50/22), XH/Commission, and VN/Commission ( T-322/23), that the rejection of a complaint introducing new elements or altering the original decision, such as in the present case, constitutes the final adverse decision subject to judicial review.
Secondly, regarding the Council’s competence to withdraw the delegation of appointing authority powers from the PMO and issue a decision on the complaint, it is important to note that delegating powers to other EU institutions, and particularly the PMO, is common. The General Court adopted a pragmatic approach, allowing the recall of delegated powers if explicitly stated. In this case, the Council’s recall of competence was authorised by a formal Decision published in the Official Journal of the EU and followed a formal request to the PMO. Thus, procedural fairness and statutory provisions were upheld.
With regard to the merits of the case, the General Court addressed the interpretation of Article 3(1) of Annex VII to the Staff Regulations and concluded that the professional nature of the training does not affect the granting of the education allowance under Article 3, paragraph 1, of Annex VII of the Statute, as long as it is provided by an educational institution.
The General Court based its reasoning on strict adherence to the conditions for granting an education allowance outlined in the relevant article: attendance at an educational establishment, on a regular basis, and with a full-time status.
The General Court stressed that legislator did not mention the nature of the training provided by a higher education institution under Article 3, paragraph 1, of Annex VII of the Staff Regulations and concluded that it is not responsibility nor the responsibility of the appointing authority of the institution concerned to establish an additional condition.
Thus, while the distinction between school education and vocational training in Article 2, paragraph 3, subparagraph b), of Annex VII of the Staff Regulations excludes the payment of the education allowance when the dependent child is undergoing vocational training unrelated to an educational institution, this distinction does not prevent the payment of the education allowance when a dependent child is receiving vocational training provided by a higher education institution that they attend regularly and full-time.
The General Court’s decision aligns with established case law, which holds that the education allowance can be granted when the dependent child is receiving a professional training within the context of an apprenticeship contract signed with an educational establishment, on a regular and full-time basis (e.g., Wery v Parliament, T-86/91). With this judgment, the Court reiterates that a child receiving vocational training from an educational institution accredited by national authorities is entitled to the education allowance.
Consequently, the General Court annulled the decision of the Council and concluded that the Council could not deny the education allowance to the applicant on the grounds that the training program did not qualify as ‘higher education’ under Article 3(1) of Annex VII of the Staff Regulations. This judgement also appears fair and reasonable, as it aligns with Article 14 of the Charter of Fundamental Rights enshrining the right to education, including access to vocational and continuing training, and is consistent with the Council Recommendation of 24 November 2020 on vocational education and training for sustainable competitiveness, social fairness and resilience.
Anaïs Guillerme is a lawyer specialised in EU law, with a specific expertise in EU institutional matters, Human Resources and CFSP. She regularly pleads before the EU Courts
Louise Bouchet is a lawyer specialised in EU law, with a specific expertise in EU institutional matters, Human Resources
SUGGESTED CITATION: Guillerme, A. and Bouchet, A.; “General Court rules Vocational Training as Part of Higher Education (Paraskevaidis v. Council and Commission, T-698/21)”, EU Law Live, 11/07/2024, https://eulawlive.com/analysis-general-court-rules-vocational-training-as-part-ofhigher-education-paraskevaidis-v-council-and-commission-t-698-21/
Communication to the Public of Musical Works: The Court of Justice Clarifies but does not Change its Tune (C-135/23, GEMA)
Manon Verbeeren
On 20 June 2024, the Court of Justice issued a new decision regarding the concept of ‘communication to the public’ in EU copyright law (C-135/23). The Court confirmed that the deliberate provision, by the operator of a rented apartment building, of television sets equipped with an indoor antenna that, without further intervention, pick up signals and enable broadcasts to be made, is a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, provided that the tenants of those apartments can be regarded as a ‘new public’.
Facts and Heart of the Dispute
GEMA, a collective management organisation that handles music copyright in Germany, brought an action before the Local Court of Potsdam (Germany) for alleged copyright infringements against GL, the operator of 18 apartments. GEMA was claiming that GL was providing television sets with an indoor antenna enabling signals to be picked up and broadcasts to be made, in particular of music, in those apartments.
The heart of the dispute was to determine whether this act should be considered as a ‘communication to the public’ or the ‘mere provision of physical facilities for enabling or making a communication’. Such question is of the utmost importance, since while the first is an act subject to the exclusive rights of copyright holders in accordance with Article 3(1) of Directive 2001/29, the second is not subject to it (Recital 27 of that Directive).
Although the right of communication to the public is one of the legal concepts most frequently interpreted by the Court of Justice in EU copyright law, it was not obvious into which category the act in question in the present case was falling. The Local Court therefore decided to stay the proceedings and refer the question to the Court of Justice for a preliminary ruling.
Recurring Topic for the Court of Justice
In accordance with settled case-law, the concept of ‘communication to the public’ within the meaning of Article 3(1) includes two cumulative criteria, namely (i) an act of communication of a work and (ii) a communication to a new public.
Act of Communication
To determine if there is an act of communication or not, the Court of Justice takes into consideration the indispensable role of the user in the communication and the deliberate nature of the intervention of such user.
Such indispensable role will be confirmed if the user intervenes, in full knowledge of the consequences of its action, to give its customers access to a protected work, particularly where, in the absence of that intervention, those customers would not, in principle, be able to enjoy such work (Rafael Hoteles, C-306/05, para. 42). In addition, the Court will consider that the user acted deliberately if the communication is of a profit-making nature.
By way of example, the Court of Justice ruled that vehicle rental companies are not carrying out an ‘act of communication’ of protected works by making available to the public vehicles equipped with radio receivers. Such act constitutes a ‘provision of physical facilities’ within the meaning of Recital 27 of Directive 2001/29 (Stim, C-753/18).
Communication to a New Public
Second, the protected works must also in fact be communicated to a public. In that regard, the Court has stated that the concept of ‘public’ refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of people (Blue Air Aviation, C-775/21 and C-826/21, paras. 51 and 52). In order to determine that number, account should be taken, in particular, of the number of persons able to access the work at the same time, but also of how many of them may access it in succession (Reha Training, C-117/15, paras. 43 and 44).
In addition, the communication must be directed to a ‘new public’, namely a public different from the public at which the original act of communication of the work is directed (Reha Training, C-117/15, para. 40).
By way of example, the Court of Justice concluded that a hotel carries out an act of ‘communication to the public’, when it distributes a signal by means of television sets to guests staying in its rooms, whatever technique is used to transmit the signal (Rafael Hoteles, C-306/05) and when it installs television sets in its rooms and connects them to a central antenna of that hotel, which makes those television sets capable of receiving broadcasts (Sillogikis, C-136/09).
What about Television Sets and Indoor Antennae in Apartments?
Confirmation of the Act of Communication
In the first place, the Court of Justice states that, by installing television sets and indoor antennae that pick up signals and enable broadcasts to be made in those apartments, the operator of an apartment building deliberately makes an intervention in order to give its clientele access to those broadcasts, within rented apartments and during the rental period. According to the Court, such communication must be considered of a profit-making nature since it is performed with the aim of increasing rental prices.
The Court of Justice adds that the fact that the television sets at issue in the main proceedings are connected to an ‘indoor’ antenna rather than a ‘central’ antenna is irrelevant in this case. Such distinction would be not consistent with the principle of technology neutrality.
With this reasoning, the Court rejects the assertion that it was a mere provision of physical facilities for enabling the communication and therefore the application of Recital 27.
To a New Public? Only in Case of Short-Term Lease
In the second place, the Court of Justice indicates that if the apartments in the building at issue are leased on a short-term basis, in particular as tourist accommodation, their tenants should be classified as a ‘public’. According to the Court, they constitute together an indeterminate number of potential recipients (like guests in a hotel).
In such circumstances, the Court of Justice also concludes that such tenants are capable of constituting a ‘new public’ since they could not enjoy the broadcast works, without the intervention of the operator of that building, involving the installation of television sets equipped with indoor antennae in those apartments. However, it will not be the case if the apartments are let to tenants who establish their residence there.
Manon Verbeeren works as legal counsel and intellectual property (IP) attorney in an IP law firm based in Belgium, where she advises in copyright law, trademark law and design law. She holds a Master of Law (Civil and Criminal Law) (UCL) and a Master of Intellectual Property & ICT Law (KU Leuven).
SUGGESTED CITATION: Verbeeren, M.; “Communication to the Public of Musical Works: The Court of Justice Clarifies but does not Change its Tune (C-135/23, GEMA)”, EU Law Live, 08/07/2024, https://eulawlive.com/analysis-communication-to-the-public-of-musical-works-the-court-of-justiceclarifies-but-does-not-change-its-tune-c%e2%80%91135-23-gema/
SYMPOSIUM
SYMPOSIUM ON THE 2024 REFORM OF THE STATUTE OF THE COURT OF JUSTICE OF THE EU
‘The
Proof is in the Pudding’: Some Thoughts on the 2024 Reform of the Statute of the Court of Justice from a Highest National Court
Corinna Wissels & Tom Boekestein
1. Introduction
With the reform of the Court of Justice’s statute, the Court abandoned its exclusive competence to give preliminary rulings: the General Court has been given jurisdiction to give preliminary rulings in six specific areas of EU law. Others, including Tridimas in an earlier contribution to this symposium, have already discussed the details of that reform, its implications for the EU’s legal order, and whether it marks the beginning of a larger shift in the EU’s judicial system. These are important academic discussions which we hope to supplement with a more practical contribution: we will discuss the reform from the perspective of a court of final instance with the obligation to refer under article 267 TFEU. Bobek, Petrić and Tridimas have wondered (implicitly) whether courts like ours would accept that from now on, some of their questions will be answered by the ‘junior court’ – someone they might not see eye-to-eye with. Although we do not doubt the General Court’s ability, this is a question worth discussing.
Before we engage with this question, we owe you a disclaimer: the impact of the transfer of jurisdiction to the General Court has little impact on our Court. Other than cases concerning the scheme for greenhouse gas emission allowance trading, the Dutch Council of State does not hear cases that touch on the areas of EU law that the General Court will give preliminary rulings on. Our Court delivered only a single judgment on the ETS trading scheme in the past five years. But, of course, we can imagine what it would be like to refer cases (primarily) to the General Court. Questions concerning the common system of value added tax especially can have such significant budgetary implications that it may feel counterintuitive to refer them to the lower EU court.
Our answer, in short, is that we think the proof is in the pudding. Whether or not national courts will receive the transfer of jurisdiction to the General Court positively and refer questions to it, will depend on how the reform plays out in practice. In our experience, the national court’s appreciation of the preliminary reference procedure is mostly dependent on three factors (in no particular order). Firstly, the time it takes the CJEU to answer the preliminary reference and the corresponding delay caused in the domestic procedure. Secondly, the coherence of the Court’s case law and the unity of EU law. Thirdly, the quality of the reply: the Court’s answer should be clear and easy to apply in the case before the national court. Ideally, it should also be formulated in such a way that it can be applied in related cases with relative ease. We will discuss each of these factors from the perspective of the national judge below.
2. Speed
Referring preliminary questions to the CJEU takes time. In 2023, it took the Court of Justice about 16 months on average to rule on a preliminary reference and during this time, the procedure before the national court is suspended. There are more factors, however. Before a preliminary reference can be sent to Luxembourg, it must be drafted. There is a difference between giving the final ruling in a case and drafting a preliminary ruling and the questions to the Court of Justice. From our experience, that often takes (considerable) time. The parties must also be given the opportunity to comment on the draft preliminary reference. Likewise, after the Court of Justice has handed down its judgment, that judgment must be analysed, the parties must be heard once more, and then the national judge will have to draft their own, final judgment in the case. Referring a case to the CJEU can easily double the time it takes before a case is decided, compared to a purely national procedure, and while this delay is unavoidable, national judges strongly prefer to keep it to a minimum. Justice delayed is justice denied, after all.
With that in mind, the reform is promising. If the General Court takes on about twenty percent of the references submitted to the Court of Justice every year, as envisioned by the latter, then the Court of Justice should be able to deal with the remaining eighty percent more efficiently and quickly. Time will tell whether this will work as intended or whether the (perceived) increase in capacity also triggers an increase in references (the Braessparadox), as Bobek has warned.
Other elements of the reform also have an impact on the envisioned time savings. If the General Court finds that it is does not have jurisdiction over a preliminary reference that has been allocated to it after all, it must refer the reference (back) to the Court of Justice. When this happens at the start of the procedure before the General Court, the delay will be minor. Experience teaches us, however, that some preliminary references appear simple and technical, but actually raise complex questions of principle when examined more closely. Sarmiento has rightly pointed to the case of Åkerberg-Fransson in this regard, which concerned a seemingly unassuming VAT-dispute, but turned out to be a case of constitutional importance. It is unclear what the procedure and procedural timeline are going to look like if the General Court refers a preliminary question back to the Court of Justice. Article 114 bis of the Court of Justice’s draft revised Rules of Procedure merely specifies that the preliminary ruling shall be given ‘as soon as possible’. For the referring judge, further specification of the timeline would be helpful.
Finally, there is the possibility for the Court of Justice to review a preliminary ruling from the General Court. It is for the first Advocate General to propose such a review within a month after the General Court gives its ruling. While we can assume that such reviews will be exceptional, this mechanism means that a preliminary ruling from the General Court’s will only become definitive a month after it is published, assuming that there will be no review by the Court of Justice (Article 62 of the Court’s Statute). According to the draft revised Rules of Procedure of the Court of Justice, the referring judge will be informed if the General Court’s ruling will not be reviewed by the Court of Justice. Of course, national courts can use that time to analyse the General Court’s ruling, but there is little point in hearing the parties if the ruling can still change.
Our bottom line is that in the eyes of national judges, much of the reform’s success will depend on the effective allocation of cases by the Court of Justice. The one-stop-shop principle is an excellent starting point and reducing the Court’s docket by twenty percent suggests notable time savings. Time will tell how effective the reform is at reducing the time it takes the Court of Justice to deliver preliminary rulings.
3. Coherence and Consistency
Sharing jurisdiction to give preliminary rulings raises the risk of fragmentation. It is therefore reassuring that the reform seeks to safeguard the coherence and consistency of EU law through two mechanisms: ex ante, by excluding preliminary references that raise principled questions of EU law from the jurisdiction of the General Court. As mentioned, these questions should not be transferred to the latter in the first place, and if that happens, the General Court is supposed to ‘return’ them. And ex post, the aforementioned review-mechanism ensures that the Court of Justice can revise preliminary rulings from the General Court if necessary. Furthermore, the creation of specialised ‘preliminary-ruling’ chambers at the General Court will foster consistency.
The importance of consistency is especially pressing in relation to the interpretation of the Charter. Preliminary references that concern the interpretation of the Charter are supposed to be kept by the Court of Justice, but in practice, national courts rarely refer cases that concern only the interpretation of the Charter. Firstly, it is possible that the national court refers several questions about the common VAT-framework, one of which concerns the Charter. Secondly, national judges often ask questions about the interpretation of secondary EU law in light of the Charter. At what point is the ‘Charter-proportion’ of a preliminary reference significant enough for it to be dealt with by the Court of Justice? And, relatedly, could a national court frame its reference in light of the Charter to force adjudication by the Court of Justice?
4. Quality
Referring questions to the Court of Justice (or the General Court, for that matter), means engaging in the judicial dialogue that is the keystone of the EU’s multi-level judicial system. A dialogue among equals, that differs from the judicial hierarchy that characterises the judiciaries of the Member States. As such, the General Court can and should be considered just as competent and well-equipped to give preliminary rulings as its bigger sister. Still, it will need supporting facilities that are (or will be) on par with those of the Court of Justice. In a similar vein, it will be interesting to see how the appointment of the General Court’s advocates general will play out; it is reassuring that they will be appointed for three-year terms, rather than on a case-by-case basis.
What matters most to national judges when it comes to preliminary rulings is their practicality with regard to the case pending before them and the cases to come. The answer from Luxembourg should be clear enough to be applicable in the pending case without much ado.[1] Yet it should also be possible to abstract it, so that it can be applied to related cases just as easily. And most importantly, without the need for ‘follow-up references’ that seek to clarify the scope and meaning of the original ruling.
Follow-up references have become more numerous in recent years. This is unavoidable, given the increasing complexity of EU law, the focus on individual assessments, and the Court of Justice maintaining the strict CILFITexceptions for national courts of final instance in Consorzio (C-561/19), against the advice of AG Bobek. In light of the strain that these references put on the Court’s capacity, Petrić has discussed extending the General Court’s jurisdiction in more areas of EU law, so that it can take on all follow-up references, and correspondingly limiting the Court of Justice’s competence to questions of principle. Such a distribution of labour would certainly be in line with the transformation of the Court of Justice into a constitutional court that some, like Bobek and Petrić have associated with the recent reform. We wonder whether this is desirable; but for now, let us wait and see how the current reform plays out in practice.
5. Outlook
Time will tell to what extent the transfer of jurisdiction to answer certain preliminary references will ease the workload of the Court of Justice and how it will be received by national courts. From the perspective of the national judge, reforms like the current one are desirable in principle. If the time it takes to answer a preliminary reference can be reduced, whilst maintaining the consistency of EU law and the quality of the rulings, we expect little objection from our colleagues. Practical questions remain, however, which will have to be dealt with when they arise. To sum up: the proof is in the pudding.
The views expressed in this contribution are strictly personal and do not reflect those of the Dutch Council of State.
[1] This is, of course, the perspective of the national judge. The Court’s concern for the uniformity of EU law and the need for preliminary rulings to be workable in the other 26 Member States is equally important.
Corinna Wissels is state councillor (judge) at the Administrative Jurisdiction Division of the Dutch Council of State. Before joining the Council of State, she was head of the European law department of the Ministry of Foreign Affairs and responsible for the agents representing the Netherlands before the Court of Justice.
Tom Boekestein is legal secretary at the Commission for EU Law at the Administrative Jurisdiction Division of the Dutch Council of State. He is the author of ‘On the Interpretation and Application of the Essence of Rights in the EU Legal Order: Limits and Limitations’ (PhD Thesis), Cambridge 2022.
SUGGESTED CITATION: Wissels, C. and Boekestein, T.; “‘The Proof is in the Pudding’: Some Thoughts on the 2024 Reform of the Statute of the Court of Justice from a Highest National Cour”, EU Law Live, 09/07/2024, https://eulawlive.com/op-ed-the-proof-is-in-the-pudding-some-thoughts-on-the2024-reform-of-the-statute-of-the-court-of-justice-from-a-highest-national-court/
SYMPOSIUM
COMPETITION CORNER:
SYMPOSIUM ON SELECTIVITY IN STATE AID
Selectivity in the Spanish Tax Lease case: Discretion of public authorities
María López Ridruejo and Alexandre Picón
In what has been described by AG Pikamäe as a ‘veritable legal saga’ that lasted almost 10 years and implied five rounds of judgments from the EU Courts, the Court of Justice definitely confirmed that the Spanish Tax Lease (STL) constituted illegal State aid.
As previously discussed here, the STL saga deals with a complex tax scheme which allowed for accelerated and early depreciation of new vessels (subject to prior authorisation from the Spanish tax authorities) during their construction. This generated a tax expense in favour of Economic Interest Groupings (EIGs) formed by various investors. Since EIGs were fiscally transparent, the tax expense was passed on to its investors, who in turn deducted it for tax purposes achieving a tax advantage. These tax advantages were then partially transferred to the shipping companies that bought a new ship.
In its decision (SA.21233 C/2011), the Commission stated that despite the STL scheme appeared to be a general measure, taken as a whole, it was selective in nature due, on the one hand, to the discretionary powers of the tax administration to grant the mandatory authorization of early repayment on the basis of vague requirements and, on the other hand, to the fact that the administration only authorized SEAF transactions intended to finance sea vessels (paras. 130 and 133-139). Thus, the element of discretion played a key role for the Commission when determining whether the STL scheme conferred a selective advantage to the beneficiaries (para. 156).
It is indeed a general principle derived from the case law of EU Courts that general measures which prima facie apply to all undertakings but are limited by the discretionary power of the public administration are selective (C256/97, para. 27). This is the case where meeting the given criteria does not automatically result in an entitlement to the measure but requires review and authorization by the tax administration under certain conditions. However, the mere fact that the tax deduction requires prior administrative authorization does not imply by itself that the measure at hand would qualify as selective, particularly when the prior authorization is based on objective, non-discriminatory criteria which are known in advance, thus imposing limits on the exercise of the public administrations’ discretion (see Commission’s Communication on the Concept of Aid, para. 125). Under this umbrella, EU Courts assessed the STL in question, reaching at first quite different conclusions.
The first round of judgments: discretion at the core of the debate
Discretion was the key element that led the General Court to annul the Commission decision in first place. According to the General Court judgment ( T-515/13), the discretionary power of the Spanish tax administration
would only have led to determine the type of operation that could benefit from the STL, namely operations aimed at financing sea vessels, excluding other assets. That did not exclude that any other company had the possibility of participating in the tax lease scheme without any restriction and remained eligible for the tax advantages in question (paras. 142-143). Under these circumstances, the advantage could not be considered selective, irrespective of an authorization system which supposedly contained discretionary elements (para. 155).
However, the Court of Justice (C-128/16 P) ruled that the General Court erred in law by failing to examine whether the authorization system provided for in the Spanish legislation gave the tax administration a discretionary power, given that its assessment was based on the incorrect premise that only the investors, and not the EIGs, could be regarded as beneficiaries and that it was therefore by reference to the investors, and not the EIGs, that the condition relating to selectivity had to be examined (para. 58). The Court of Justice sent back the case to the General Court.
Second round of judgments
In its second judgment ( T-515/13 RENV ), the General Court submitted that the thesis put forward by Spain regarding the lack of discretion of tax authorities in relation to the verification of the conditions laid down in the Spanish Corporate Income Tax Law and its Regulation was incorrect in view of the legal provisions examined (para. 96). The judgment established that the law introduced vague criteria which could not qualify as objective, particularly regarding the possibility to set the start date for the depreciation or the ‘specific nature of the economic use of the asset’, whose interpretation gave the tax administration a significant margin of discretion (para. 93).
Furthermore, the Regulation conferred important discretionary powers to the tax administration, including the ability to (i) require all the information and documents it deemed appropriate, which supposedly gave the tax administration important discretionary powers as regards the type of information and documents it could require, (ii) set a different start date for the depreciation, without further clarification, and (iii) grant the authorization based on vague criteria (para. 94-95).
Making sense of the case law
The assessment of the selectivity condition in STL does not seem to be in line with previous cases in which the role played by tax administration was central to the analysis.
In particular, in the OY P case (C-6/12), the Court of Justice assessed a Finish deduction to the corporate income tax law which required prior authorization by tax authorities in case more than half of the company’s shares changed ownership. The Court held that an authorization system did not by itself imply a selective measure if the powers of the competent authorities are limited to verifying the conditions to pursue an identifiable tax objective and the criteria applied by those authorities are inherent in the nature of the tax regime (paras. 23-24). When the criteria followed by the competent authorities to determine the beneficiaries or the conditions under which the aid is provided are unrelated to the tax system (such as maintaining employment), the tax scheme could
be deemed as selective (para. 26). However, if the authorities only have a degree of leeway limited by objective criteria related to the tax system in question the scheme cannot be considered selective (para. 27). In the STL, however, the Commission and EU Courts did not expressly follow that path and their assessment was not based on whether the criteria followed by the administration was related to the tax system or not.
Similarly, in France v. Commission (C-241/94), the Court of Justice dealt with a social plan to cope with redundancies on economic grounds, which comprised a number of measures jointly financed by the State. France submitted that the assessment made by public authorities was intended to ensure that equality of treatment was granted, by following different circulars which set limits to the administration (para. 18). However, besides the fact that the administration could depart from its own guidelines, the Court of Justice considered that it enjoyed a degree of autonomy which allowed to adjust its financial assistance, including the choice of beneficiaries, the amount and the conditions under which it was provided (paras. 23-24). Again, these factors were not present in the STL case and yet the Court of Justice concluded that the scheme was still discretionary in nature.
Last, in the decision regarding the French tax Economic Interest Groups (GIE fiscaux) (Case N° C46/2004), the Commission stressed that the granting of a tax advantage was related to the realisation of investments having ‘significant economic and social interest both in general and from an employment standpoint in particular’ (para. 12). Such vaguely formulated criteria led the Commission to conclude that the measure in question granted the French tax authorities a wide margin of discretion (para. 20). In the STL, the Court considered that the criteria with regard to the possibility to set the start date for the depreciation or the ‘specific nature of the economic use of the asset’ were vague and gave the tax administration a significant margin of discretion. However, these do not seem to directly impact the granting of the tax advantage as in the GIE fiscaux case.
Conclusions
Selectivity and taxation remain one of the greyest areas in State aid law and the line between the general and selective nature of a tax measure has been and continues to be slippery, and it does not seem likely to become any less so in the future.
The STL saga has probably been one of the longest and most challenging cases dealing with the discretionary powers of the tax authorities to authorize tax deduction schemes of the past decade. The response of EU Courts did not seem entirely satisfactory with regard to the role played by the Spanish tax administration in the case at hand in view of previous case law. Different issues arising from the Commission Decision seem to remain still open even after two judgments of the Court of Justice. In particular, the mere fact that the tax authorities had the ability to require all the information and documents it deemed appropriate does not necessarily introduce an element of discretion if the authority cannot in practice refuse the authorization on the basis of the said documents.
Along the same lines, Spain has also seen several other major cases being brought up to the EU Courts calling into question the criteria followed by the European Commission when assessing the selectivity of a tax measure.
In parallel to the STL case, the EU Courts were also dealing with another important State aid ‘saga’ concerning the Spanish financial goodwill tax deduction granted to indirect acquisition of shareholdings in foreign companies (for a previous entry on this case, see here), where the Court of Justice ultimately concluded that a tax measure which grants an advantage upon satisfaction of the condition that an economic transaction is performed may be selective even where any undertaking may freely choose whether to perform that transaction ( Joined Cases C-51/19 P and C-64/19 P).
These precedents show that the tension between direct taxation and State aid control is far from being resolved and that a relevant degree of uncertainty persist with regard to the assessment of the selectivity condition. In particular, the case law of the EU Courts still seems to leave room for more in-depth discussion regarding the role of discretionary powers of tax authorities and there is still a need for more clear guidelines both for undertakings and authorities.
María López Ridruejo and Alexandre Picón are Counsel and Principal Associate at an international law firm headquartered in Spain. The views presented in this article are issued in the authors’ personal capacity and do not reflect the views of any organisation they are associated with, nor do they constitute legal advice. Both authors have been involved in the late stages of the case T-514/14Hispavima v. Commission, before the General Court.
SUGGESTED CITATION: López Ridruejo, M. and Picón, A.; “Selectivity in the Spanish Tax Lease case: Discretion of public authorities”, EU Law Live, 09/07/2024, https://eulawlive.com/competition-corner/selectivity-in-the-spanish-tax-lease-case-discretion-of-public-authorities-by-maria-lopezridruejo-and-alexandre-picon/
THE LONG READ
The Persian jurist in Luxembourg. On the decentralisation of the preliminary ruling procedure
Ricardo Alonso García
Let us reflect for a moment about the character of the Persian jurist conceived by Pedro Cruz Villalón more than four decades ago.1
Let us also imagine that the Persian jurist had travelled to Luxembourg as a young lawyer, back in the 1960s. At that time, he was impressed by how a small group of seven judges,2 working in the premises of a small building in a bucolic small town,3 had the audacity to lay down the foundations of a ‘new’4 and ‘autonomous’ legal order,5 distinct from international law and endowed with direct effect and primacy vis-à-vis the national legal orders.
The Persian jurist was also aware of how those judges, accompanied by an even smaller group of colleagues called the Advocates General, met to celebrate with a glass of champagne6 every time a request for a preliminary ruling arrived from their national peers, giving them the opportunity to flesh out this new legal order, unprecedented in the comparative legal landscape.
After six decades without setting foot in Luxembourg, the Persian jurist, now an octogenarian, is back in Luxembourg, impressed by the imposing edifice of close to 140,000 square meters. The modern Rocca Tower, the tallest building in the country reaching twenty-nine floors and one hundred and eighteen meters in height, shines with its own light, capable of housing, together with its neighbours Montesquieu and Comenius, the services of the Court. The Palais, the Anneau and the Thomas More building house no less than eighty-one Judges and eleven Advocates General, divided into two jurisdictions, the Court
1. See ‘La estructura territorial del Estado, o la curiosidad del jurista persa’ , Revista de la Facultad de Derecho de la Universidad Complutense No. 4, 1981, pp. 53 et seq. The essay in question (republished years later in an edited collection in ‘La curiosidad del jurista persa, y otros estudios sobre la Constitución’, Centro de Estudios Políticos y Constitucionales, 2nd ed., 2006), begins, in the form of a tale, narrating how in a remote part of Persia lived a lawyer who, lacking any information about Spain, was driven by a sudden curiosity to learn about the territorial structure of this country. As a professional lawyer and impartial observer, he conscientiously devoted himself to reading the Spanish Constitution of 1978 in an attempt to understand, as objectively as possible, without any spurious influences or biased adulterations, how the Spanish people had decided to organise themselves territorially. An extremely difficult task given the imprecision, ambiguity and inadequacies of the constitutional text.
2. In view of the need for an odd number of judges, in the absence of a casting vote by the President.
3. Ville Vauban, now the city’s art museum.
4. Judgment of the Court of Justice of 5 February 1963, Van Gend en Loos (C-26/62, EU:C:1963:1).
5. Judgment of the Court of Justice of 15 July 1964, Costa v ENEL (C-6/64, EU:C:1964:66).
6. A. J. Mackenzie Stuart, ‘The Court of Justice: a Personal View’, in J. Bates, W. Fannie, J.A. Usher and H. Wildberg, European Governmental Studies. In Memoriam J.D.B. Mitchell, Sweet & Maxwell, 1983.
of Justice and the General Court, heirs, as a single institution, of the Court of Justice of the European Communities of the 1960’s.
* * *
Together with the visual impact, the Persian jurist perceives a certain stir in the air, resulting from the introduction of one of the most important reforms in the history of this court that has shattered a sacred myth: the exclusive power of the Court of Justice to hear and hand down preliminary rulings, the ‘clé de voûte’7 of Europe’s machinery of integration through law.
The first thing that surprises the Persian jurist is the speed at which the Union has materialised a reform introduced in 2001, in the Nice Treaty. Indeed, the Treaty signed in the French city in February 2001, which would still take two years to enter into force, introduced what is now Article 256(3) TFEU. The provision established then, and still does now (with some minor terminological changes), that ‘the General Court shall have jurisdiction to hear and determine questions referred for a preliminary ruling under Article 267, in specific areas laid down by the Statute.’
Having overcome his surprise by the Union’s lethargy of more than two decades, our friend from the East is now tormented by a series of questions as he approaches the heart of a reform that is highly technical in content, but equally of great political and institutional significance.
Here are some of them.
The first question haunting the Persian jurist concerns the procedure for reforming the Statute, initiated, in accordance with Article 281 TFEU, by the Court of Justice of the EU itself. An initiative that materialised in a proposal of 30 November 2022,8 but which departed from the position defended by the Institution itself only five years earlier.
In a Report submitted on 14 December 2017,9 the Court of Justice of the EU held as follows:
‘it is clear that the issues are fundamental and that the introduction of adequate mechanisms to ensure that the reference for a preliminary ruling retains its role as the “keystone” of the judicial system of the European Union is an extremely delicate undertaking.
7. In the words of Robert Lecourt, ‘La Cour de Justice des Communautés Européennes vue de l’intérieur’, in W.G. Grewe, H. Rupp und H. Schneider, Europkische Gerichtsbarkeit und nationale Verfassungsgerichtsbarkeit. Festschrift zum 70. Geburtstag von Hans Kutscher, Nomos, 1981. See also, Opinion 2/13, EU:2014:2454, at paragraph 176.
8. Request submitted by the Court of Justice pursuant to the second paragraph of Article 281 of the Treaty on the Functioning of the European Union with a view to amending Protocol No 3 on the Statute of the Court of Justice of the European Union.
9. Report submitted pursuant to Article 3(2) of Regulation (EU, Euratom) 2015/2422 of the European Parliament and of the Council of 16 December 2015 amending Protocol No 3 on the Statute of the Court of Justice of the European Union.
At a time when requests for a preliminary ruling brought before the Court are dealt with expeditiously and when the dialogue engaged with the courts and tribunals of the Member States had never been as intense as it is now, it does not appear to be appropriate, at this time, to effect a transfer to the General Court of jurisdiction in relation to such requests. That applies, a fortiori, in the current situation where there is an increase in the number of cases brought before the General Court and that court is compelled to re-organise itself and to adjust its working methods.
In such circumstances, the Court considers that there is no need, at this time, to propose an amendment of its Statute in order to transfer to the General Court part of the jurisdiction that the Court exercises in preliminary ruling cases.’
Such a conclusion would, however, be qualified in the following terms in the said Report with the following statement:
‘It is necessary however to be very clear on this fundamental matter: this should not at all be understood as a definitive position on the question of the distribution of jurisdiction to give preliminary rulings between the Court of Justice and the General Court.’
Of the two arguments put forward five years later by the Institution to justify its change of heart on the matter, the first, alluding to the fact that the situation ‘appears very different’ from the one in 2017, does not seem to correspond exactly with reality.
According to the proposal of 2022, the number of requests for preliminary rulings to the Court of Justice has been on an upward trend and has reflected for several years a progressive increase in the length of proceedings.
However, the reality is quite different. In 2023, the total number of requests for preliminary rulings to the Court of Justice was in a downward trend, lowering to 518, compared with the total number of references submitted in 2017, that is to say 533. The number 518 represent the lowest number of requests since then. Moreover, as for the duration of procedures, the average duration has decreased from 17.3 months in 2022 to 16.8 months in 2023. Compared to 2017’s average (15.7), the increase of just one month is not overly alarming.
As regards to the second reasons justifying the change of position compared with 2017, mention is made to a significant increase in the number of judges of the General Court (a doubling of its members reaching a total of 54), which has led to a reconsideration of
‘in particular, […] a partial specialization of [the General Court’s] chambers, more proactive case management and increased referral of important or complex cases to extended formations, composed of 5
Judges. Those developments place the General Court in a good position to be able to hear and determine not only a larger number of cases, but also new cases which do not come solely within the jurisdiction that it has enjoyed until now.’
That being so, the General Court was not fully prepared to take on the reform and a number of amendments were therefore necessary. Some of these reforms were anticipated in the 2022 proposal referred to the Council and the European Parliament. On the one hand, ‘having regard to the specific features of preliminary ruling proceedings as compared with direct actions over which the General Court has jurisdiction, it is appropriate to allocate requests for a preliminary ruling to chambers of the General Court designated for that purpose.’ On the other hand, ‘in order to maintain in particular the consistency of preliminary rulings given by the General Court, and in the interests of the proper administration of justice, provision should be made for a formation of the court of an intermediate size between the chambers of five Judges and the Grand Chamber.’10
Returning to the first reason given to justify the Court of Justice’s ‘overruling’ on the need for the reform, the Persian jurist harbours doubts as to whether the true motives are not so much quantitative (the number of preliminary references and the number of months to resolve them) as qualitative. When recalling his travels in Luxembourg back in the 1960s, all the judges of the Court sat in all the cases (including direct actions), assisted by the Advocates General, without whom it is impossible to understand the Court of Justice (for example, the existence of the Advocates General is what explains to a great extent the absence of dissenting opinions in the modus operandi of this jurisdiction).
In this regard, the 2023 statistics are both striking and alarming: taking a look at the total number of cases decided by the Court of Justice, 5.12% were decided by the Grand Chamber, 41.25% by Chambers of 5 judges, and 52.63% by Chambers of 3 judges (in a context in which almost 68% of the cases were decided by way of the preliminary ruling procedure).
Could it be, our colleague from the East asks himself, that the Court of Justice is unloading its docket in order reorganise itself and rule on cases mostly through its Grand Chamber? After all, the Court of Justice itself acknowledged in its last Annual Report that ‘in recent years, the proceedings brought before the Court, […] stand out because they concern sensitive matters, which regularly see the involvement of the Grand Chamber, such as the protection of the values of the rule of law in the context of national judicial reforms, asylum and immigration policy, data protection and the application of competition rules in the digital era, the fight against discrimination or environmental, energy and climate issues.’11
10. To this should be added the need for the General Court to adopt ‘procedural rules equivalent to those applied by the Court of Justice when dealing with requests for a preliminary ruling, in particular as regards the designation of an Advocate General’, in order to offer the national courts and the parties the same guarantees as those offered by the Court of Justice. 11. Cf. Annual Report 2023 - Panorama, p. 23.
And might it not be, the Persian jurist continues to ask, that this reorganisation should also include the recovery of the lost relevance of the role of the Advocate General, whose absence in almost half of the cases solved by the Court is equally striking and alarming?12
Turning to the objective of the reform, our Persian colleague is also surprised by the fact that, while essentially dealing with the decentralisation of preliminary rulings, practically half of the reform is devoted to an aspect which, in principle, is alien to it, that is to say the mechanism for prior filtering of appeals against the judgments or orders of the General Court, in cases with a prior intervention of the board of appeal of a body or agency of the Union.
This part of the reform, the Persian jurist ends up noticing, would have an indirect link with the main objective of the reform, consisting in the attempt to maintain the ability of the Court of Justice to carry on performing its role as the ultimate interpreter of Union law, together with its now reinforced role as a constitutional court.
Indeed, the central objective of the reform would be the transfer to the General Court of preliminary ruling jurisdiction over certain matters,13 allowing the Court of Justice to focus its attention mostly on ‘matters of a constitutional nature’,14 such as those relating to the interpretation of ‘primary law, public international law, the general principles of Union law or the Charter of Fundamental Rights of the EU’.15 This role, together with the additional task of acting as supreme interpreter of Union law, would seem to be an attempt to rationalise the work of the Court of Justice, reinforced even further by the introduction of a mechanism of prior filtering of appeals. The filtering mechanism would work for those cases that have already been reviewed twice before reaching the Court of Justice: firstly, in the context of a particular ‘administrative remedy’ (before the so-called ‘boards of appeal’ provided in some EU agencies); secondly, in a direct action before the General Court. It should be taken into account that this filtering mechanism was inaugurated in 2019, at the same time as another important reform, introduced in 2015, materialised in the General Court: the doubling of its size to a total of fifty-four Judges. 16 Moreover, the filtering mechanism is an open-ended measure, with the possibility of extending it to any other future boards of appeal that may be created in the future.17
12. According to the Persian jurist’s account, confirmed by the contacts that he keeps in Luxembourg, of the 468 cases decided by judgment, 224 were decided without an Opinion of the Advocate General (i.e. 47.8%). If he were to include in the cases decided both by order and joined cases considered individually) the data would be even more striking: out of a total of 783 cases, only 283 would have been heard with an Opinion.
13. As the reform specifies: ‘exclusively within one or several specific defined areas laid down in the Statute’ (italics added).
14. As stated in the Preamble.
15. All of these matters would remain within the jurisdiction of the Court of Justice, according to a clarification, at a request of the European Parliament, introduced in the Preamble of the Regulation introducing the reform.
16. Nuria Bermejo, ‘La reforma del Tribunal General de la Unión Europea: remodelando la arquitectura jurisdiccional de la Unión Europea’, Revista Española de Derecho Europeo No. 61, 2017, p. 63 et seq.
17. The reform also applies the filtering mechanism to judgments of the General Court, handed down pursuant to an arbitration clause contained in a contract concluded by or on behalf of the Union, whether that contract be governed by public or private law. (Article 272 TFEU).
When it comes to the ‘boards of appeal’, our friend from the East is also rather perplexed when rereading the literal wording of the Treaty of Nice; the genesis, let us recall, of the current reform. Noticing the reference to the competence of the General Court ‘to hear and determine actions or proceedings brought against decisions of the specialised courts’ (the first paragraph of Article 256(2) TFEU), the Persian jurist realises that such a provision does not really reflect the current jurisdictional system of the Union. In fact, the system appears to have evolved in a different direction to the one envisaged in the Treaty. On the one hand, the only ‘specialised court’ created for this purpose in 2004, the Civil Service Tribunal, 18 was abolished only a decade later.19 On the other hand, instead of ‘specialised courts’, it is the ‘boards of appeal’ that proliferated, which cannot be considered as ‘courts’. 20
All this confusion is only increased by the fact that the grounds for the filtering of appeals in cases previously involving the boards of appeal, are very similar to those allowing for the ‘review’ of cases involving the ‘specialised courts’, as provided in Article 256(2) TFEU, second paragraph). The specialised courts no longer exists, but the ‘review’ that their decisions were subject to, following a direct action in the General Court, happens to be the same procedure that will allow the Court of Justice to scrutinise the General Court’s decisions delivered by way of the preliminary ruling procedure, provided they pose a ‘serious risk of the unity or consistency of Union law’.
Finally, moving on from the substance of the reform to the legislative technique used by the Institutions, the Persian jurist’s perplexity emerges once again when comparing the text of the Preamble of the reform with that of the new provisions incorporated into the Statute.
Indeed, while reading the Preamble carefully, our friend notices some particularly detailed parts of it which, however, are not reflected in the amended articles of the Statute. That is certainly the case of the references therein to the ‘one-stop shop’ system, whereby all requests for preliminary rulings shall be referred to the Court of Justice, which will be responsible for deciding on the body competent to rule on them (i.e. the Court of Justice itself, or the General Court).
According to the new Article 50(b)(2) of the Statute, ‘every request for a preliminary ruling made under Article 267 of the Treaty on the Functioning of the European Union shall be submitted to the Court of
18. Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p. 7–11).
19. Regulation No 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137–139).
20. Judgment of the Court of Justice of 9 March 2023, ACER v Aquind (C-46/21 P, EU:C:2023:182, paragraphs 53 and 59).
Justice.’ And it continues as follows: ‘After verifying, as quickly as possible and in accordance with the detailed rules set out in its Rules of Procedure, that the request for a preliminary ruling comes exclusively within one or within several of the areas to which paragraph 1 refers, the Court of Justice shall transfer that request to the General Court.’
The provisions of the amended Statute remain silent as to the specific modus operandi to determine the competent decision-making bodies. This is in contrast to the Preamble of the amending Regulation, according to which, ‘following a preliminary analysis, and after hearing the Vice-President of the Court of Justice and the First Advocate General, the President of the Court of Justice should inform the Registry whether the request should be transferred to the General Court or should be referred, for further analysis, to the General meeting to which all the Judges and Advocates General of the Court of justice take part’.21
Our Persian colleague’s bewilderment is twofold. On the one hand, he cannot understand why such a detailed provision had not been transferred to the articles themselves, especially when such a provision, clearly regulatory in content, lacks normative value according to the well-established case law of the Court of Justice.22 On the other hand, it seems to our friend that the one-stop shop system, under the reform, does not reflect the will of the Member States as materialised in the Treaty of Nice, as it is clearly more favorable to the introduction of the one-stop-shop mechanisms in the Registry of the General Court, not of the Court of Justice.23
With all those doubts and hesitations bundled together in his suitcase, the Persian jurist returns back home in the East, committed to continue with the study of this reform.24 He plans to add to
21. Recital 8(c), following an amendment introduced by the European Parliament to this effect.
22. See, inter alia, judgment of the Court of Justice of 21 March 2024, LEA (C-10/22, EU:C:2024:254) (‘according to settled case-law’, one can read in paragraph 51, ‘while the preamble to an EU act may explain the content of the provisions of that act and provides elements of interpretation which are likely to clarify the intention of the author of that act, it has no binding legal value and cannot be relied upon to derogate from the provisions of the act itself or to interpret those provisions in a manner contrary to their wording’).
23. According to the second paragraph of Article 256(3) TFEU, ‘where the General Court considers that the case requires a decision of principle likely to affect the unity or consistency of Union law, it may refer the case to the Court of Justice for a ruling.’ It seems clear, in light of this wording, that the drafters of the Nice Treaty envisaged the conferral of the preliminary reference jurisdiction to the General Court ab initio, leaving open the possibility for the General Court to refer the case to the Court of Justice. Perhaps in order not to deviate too much from an orthodox interpretation of the TFEU (to which it should be added that the view of the jurisdictional boundaries may vary when examining the cases), this power of referral has been left open once the Court of Justice has already conferred jurisdiction to the General Court (see the new wording of Article 54 of the Statute, again proposed at the request of the European Parliament, according to which: ‘Where the General Court finds that it does not have jurisdiction to hear and determine an action or a request for a preliminary ruling in respect of which the Court of Justice has jurisdiction, it shall refer that action or request to the Court of Justice. Likewise, where the Court of Justice finds that an action or a request for a preliminary ruling falls within the jurisdiction of the General Court, it shall refer that action or request to the General Court, whereupon that Court may not decline jurisdiction’.
24. Which in turn leaves the door open for further reforms, in particular in relation to the specific matters attributed, in the preliminary ruling framework, to the General Court.
his knowledge the contributions of other qualified colleagues, experienced in the judicial affairs of the Luxembourg courts.25
25. See, inter alia, Michal Bobek, ‘Preliminary Rulings before the General Court. What Judicial Architecture for the European Union?’, Common Market Law Review, 2023, nº 60, pp. 1515-1550, and José Martín y Pérez de Nanclares, ‘La reforma del Tribunal de Justicia de la Unión Europea: la ruptura de un tabú’, Revista Española de Derecho Europeo, 2024.
HIGHLIGHT F THE WEEK S O
Preliminary reference on compatibility with EU law of product providing nutritional information elsewhere than in the nutrition declaration, published in OJ
Monday 8 July
Official publication was made of a case concerning a preliminary ruling request from the Högsta förvaltningsdomstolen (Sweden), lodged on 29 April 2024, concerning an appeal seeking the annulment of the decision of the Environmental Administration in Helsingborg Municipality requiring Nestlé Sverige Aktiebolag to remove information on the energy value and actual levels of nutrients (such as fat, protein and fibre) from packaging: Nestlé Sverige (C-315/24).
Read on EU Law Live
Preliminary ruling request on the interpretation of Commission Delegated Regulation (EU) No 640/2014 concerning aid applications and payment claims in the agricultural sector, published in OJ
Monday 8 July
The Administrativen sad – Varna (Administrative Court – Varna) in Bulgaria submitted a request for a preliminary ruling, which raises several questions about the interpretation and application of Commission Delegated Regulation (EU) 640/2014 concerning aid applications and payment claims in the agricultural sector.
Read on EU Law Live
Milan Zver (MEP) challenges European Commission’s document access decision related to the organisation of Vice-President Věra Jourová’s visit to Slovenia in 2023
Monday 8 July
Official publication was made of Milan Zver’s action seeking to annul a partial refusal by the Commission to grant him access to certain documents. The documents in question relate to the organisation of Vice-President Věra Jourová’s visit to Slovenia from March 1-3, 2023.
Read on EU Law Live
Nuctech challenges Commission’s inspection decision
Monday 8 July
Nuctech Warsaw Co. Ltd and Nuctech Netherlands BV filed an action against the European Commission’s decision requiring them to undergo inspections related to threat detection systems under Regulation (EU) 2022/2560.
Read on EU Law Live
Court of Justice to hear preliminary reference on interpretation of several EU law provisions, in context of surrender of defendant following a EAW
Monday 8 July
A request for a preliminary ruling concerning the interpretation of Articles 4(3) and 17(1) TEU, Article 4 and the second paragraph of Article 47 of the Charter of Fundamental Rights, as well as Article 1er(2) and (3) and Articles 15 and 19 of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Parliament and of the European Parliament, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 was officially published in the OJ.
Read on EU Law Live
Commission opens in-depth investigation on German recapitalisation measure adopted in favour of Lufthansa
Monday 8 July
The European Commission opened an in-depth investigation to assess whether a €6 billion recapitalisation measure in favour of Deutsche Lufthansa AG (“Lufthansa”) is in line with EU State aid rules.
Read on EU Law Live
Commission approves Italian state aid for Caremar Ferry Services
Monday 8 July
The European Commission determined that the public service compensation provided to Caremar SpA (Caremar) from January 1, 2009, to July 31, 2012, and under the public service contract from July 16, 2015, to July 15, 2024, aligns with EU State aid rules.
Read on EU Law Live
Court of Justice to clarify treatment of cross-border criminal records in new proceedings
Tuesday 9 July
The Rayonen sad Tutrakan (District Court of Tutrakan, Bulgaria) requested a preliminary ruling, published the day before in the OJ, involving the interpretation of EU Council Framework Decisions regarding the recognition of previous convictions from other Member States during new criminal proceedings.
Read on EU Law Live
Court of Justice streaming hearing of case concerning modification of public contracts in the electric vehicles’ charging infrastructure sector
Tuesday 9 July
The Court of Justice’s Grand Chamber hearing in Fastned Deutschland and Tesla Germany (C-452/23), concerning a case on a preliminary ruling request, by which clarification has been sought on the interpretation of Article 72(1)(c) of Directive 2014/24/EU on public procurement, was streamed on the Court’s website.
Read on EU Law Live
Court of Justice to hear preliminary ruling request on alleged abuse of dominant position in the market of ground handling services provided at airports
Tuesday 9 July
Official publication was made of a preliminary ruling request from the Curtea de Apel București (Romania), lodged on 22 March 2024, concerning access to airport infrastructure for provision of ground handling services at an EU airport.
Read on EU Law Live
EU investigates Slovak Aid to NAJPI for glass sand extraction site
Tuesday 9 July
The European Commission initiated an in-depth investigation into whether the Slovak government’s €4.99 million aid to NAJPI a.s. for establishing a glass sand extraction site in Trnavský kraj complies with EU State aid regulations.
Read on EU Law Live
EU identifies excessive deficits in seven Member States
Tuesday 9 July
As part of the European Semester Spring package of June 2024, the European Commission issued a report under Article 126(3) TFEU, identifying excessive deficits in seven Member States: Belgium, France, Italy, Hungary, Malta, Poland, and Slovakia.
Read on EU Law Live
EU identifies excessive deficits in seven Member States
Tuesday 9 July
As part of the European Semester Spring package of June 2024, the European Commission issued a report under Article 126(3) TFEU, identifying excessive deficits in seven Member States: Belgium, France, Italy, Hungary, Malta, Poland, and Slovakia.
Read on EU Law Live
Directive (EU) 2024/1799 on common rules promoting the repair of goods, published in OJ
Wednesday 10 July
Official publication was made of Directive (EU) 2024/1799 of the European Parliament and of the Council of 13 June 2024 on common rules promoting the repair of goods, which aligns with the European Green Deal’s goals, focusing on enhancing the internal market’s functionality, increasing consumer protection, and promoting sustainable consumption through repair and reuse.
Read on EU Law Live
Ombudsman decision on EPSO’s remote testing for EU civil servant recruitment
Wednesday 10 July
Following numerous complaints regarding the European Personnel Selection Office’s (EPSO) use of remote testing in recruitment processes, the European Ombudsman launched an inquiry, uncovering several shortcomings in EPSO’s handling of remote testing.
Read on EU Law Live
Regulation 2024/1849 on mercury as regards dental amalgam and other mercury-added products subject to restrictions, published in OJ
Wednesday 10 July
Official publication was made of Regulation (EU) 2024/1849 of the European Parliament and of the Council of 13 June 2024 amending Regulation (EU) 2017/852 on mercury as regards dental amalgam and other mercury-added products subject to export, import and manufacturing restrictions.
Read on EU Law Live
General Court upholds SRB’s discretion in denying MREL exemption to French banking group
Wednesday 10 July
The General Court of the European Union (Third Chamber, Extended Composition) has ruled on the case T-540/22, where the French Republic sought the annulment of a decision made by the Appeal Panel of the Single Resolution Board (SRB).
Read on EU Law Live
General Court rejects action against Commission’s decision on access to documents from Hungary
Wednesday 10 July
The General Court, sitting in its Extended Composition formation, delivered its judgment in a case concerning the applicant’s claim that the Court should annul the Commission’s decision of 14 December 2021 reviewing the objections raised by Hungary against the confirmatory application GESTDEM 2021/2808, which is aimed at ensuring public access to documents originating from Hungary: Hungary v Commission (T-104/22).
Read on EU Law Live
General Court annuls EPPO’s rejection of a candidate for the position of Delegated Prosecutor in Italy
Wednesday 10 July
The General Court delivered its judgment in Giuffrida v EPPO (T-676/22) concerning the decision of the European Public Prosecutor’s Office (EPPO) to reject her candidacy for the position of European Delegated Prosecutor in Italy.
Read on EU Law Live
Digital Services Act: Adult content platform XNXX designated as Very Large Online Platform
Wednesday 10 July
The Commission formally designated XNXX, an adult content platform with an average of more than 45 million monthly users, as a Very Large Online Platform (VLOP) under the Digital Services Act (DSA).
Read on EU Law Live
Prohibition of wolf hunting set out in the Habitats Directive is compatible with Union law, holds Court of Justice
Thursday 11 July
The Court of Justice handed down judgment in WWF Österreich (C-601/22), a request for a preliminary ruling from the Regional Administrative Court in Tyrol (Austria) concerning the interpretation of the Habitats Directive (Directive 92/43/ EEC), in relation to the status of wolves in that Directive.
Read on EU Law Live
Decision of the High Representative of the Union or Foreign Affairs and Security Policy of 23 May 2024 on the rules regarding access to documents, published in OJ
Thursday 11 July
The High Representative of the Union for Foreign Affairs and Security Policy issued a decision on May 23, 2024, updating the rules regarding public access to documents held by the European External Action Service (EEAS), thus replacing the previous 2011 rules to reflect evolving transparency practices and policies within the EEAS.
Read on EU Law Live
Court of Justice clarifies whether collective redundancies directive applies to employer’s retirement
Thursday 11 July
The Court of Justice delivered its judgment in case C-196/23 | [Plamaro] concerning whether collective redundancies directive applies to employer’s retirement.
Read on EU Law Live
HANN-INVEST: Article 19(1) TEU requires that only the judicial panel responsible for a case can determine its outcome
Thursday 11 July
The Court of Justice handed down judgment in HANN-INVEST and Others (C-554/21, C-622/21 and C-727/21), a set of requests for a preliminary ruling from the Commercial Court of Appeal of Croatia concerning the compatibility of certain national rules of judicial procedure with Article 19(1) TEU.
Read on EU Law Live
Meta Platforms Ireland: Court of Justice clarifies requirements for actions brought by associations under Article 80(2) GDPR
Thursday 11 July
The Court of Justice handed down judgment in Meta Platforms Ireland (C-757/22), a request for a preliminary ruling from the German Federal Court of Justice concerning the interpretation of Article 80(2) GDPR, arising from a dispute between Meta Platforms Ireland (Meta) and the Federal Union of German Consumer Organisations (the Federal Union) concerning an alleged infringement of personal data legislation.
Read on EU Law Live
Commission Implementing Regulation on provisional anti-dumping duty on Chinese imports of titanium dioxide, published in OJ
Thursday 11 July
Commission Implementing Regulation (EU) 2024/1923 of 10 July 2024 imposing a provisional anti-dumping duty on imports of titanium dioxide originating in the People’s Republic of China was officially published.
Read on EU Law Live
Commission Implementing Regulation on provisional anti-dumping duty on Chinese imports of titanium dioxide, published in OJ
Thursday 11 July
Commission Implementing Regulation (EU) 2024/1923 of 10 July 2024 imposing a provisional anti-dumping duty on imports of titanium dioxide originating in the People’s Republic of China was officially published.
Read on EU Law Live
Court of Justice rules against notifying parent companies via subsidiaries in cross-border litigation
Thursday 11 July
The Court of Justice delivered its judgment in Volvo (Assignation au siège d’une filiale de la défenderesse) (C-632/22) concerning the interpretation of Article 47 of the Charter of Fundamental Rights, in connection with Article 101 TFEU and Article 53 of the EEA Agreement.
Read on EU Law Live
Court of Justice clarifies power of attorney to authorise performance of payment transactions on behalf of bank account holder, in light of Payment Services Directive
Thursday 11 July
The Fifth Chamber of the Court of Justice handed down its judgment in a case concerning the interpretation of several provisions of Directive 2007/64/EC on payment services in the internal market (Payment Services Directive), in the context of an appeal brought against the judgment of a court of first instance upholding the claim against a bank for the execution of certain payments: Eurobank Bulgaria (C-409/22).
Read on EU Law Live
AG Ćapeta: EU law does not preclude, in principle, national rules providing that an action for Köbler liability be examined by the same court which committed the alleged breach
Thursday 11 July
Advocate General Ćapeta handed down her Opinion in Vivacom Bulgaria (C-369/23), a request for a preliminary ruling from the Supreme Administrative Court (Bulgaria), concerning, in essence, a dispute on the compatibility with Articles 19(1) TEU and 47 of the Charter of Fundamental Rights of national provisions providing for the jurisdiction of a court of last instance to hear actions based on breaches of EU law attributable to that court.
Read on EU Law Live
Mousse: AG Szpunar interprets scope of Articles 5(1)(c) and 6(1) of the GDPR
Thursday 11 July
Advocate General Szpunar handed down his Opinion in Mousse (C-394/23), a request for a preliminary ruling from the French Council of State concerning the interpretation of Articles 5(1)(c) (‘principle of data minimisation’) and 6 (‘principle of lawfulness of processing’) of the GDPR.
Read on EU Law Live
Judgment on amount of VAT tax calculated for two legal persons forming part of the same VAT group, delivered by Court of Justice
Thursday 11 July
The Fourth Chamber of the Court of Justice rendered its judgment in a case concerning the interpretation of the Sixth Council Directive 77/388/EEC on the harmonisation of the laws of the Member States relating to turnover taxes, in relation to authorisation of Member States to treat as a single taxable person persons established in their territory who, while legally independent, are closely bound to one another by mutual financial, economic and organisational links: Finanzamt T II (C184/23).
Read on EU Law Live
Commission approves Apple’s commitments addressing competition concerns relating to Apple’s refusal to grant access to technology for contactless payments
Thursday 11 July
The European Commission accepted Apple’s amended commitments, which seek to address the Commission’s competition concerns relating to Apple’s refusal to grant rivals access to a standard technology used for contactless payments with iPhones in stores (‘Near-Field-Communication (NFC)’ or ‘tap and go’).
Read on EU Law Live
Court of Justice finds provision of the Italian Shipping Code to be compatible with the fundamental freedom of establishment
Thursday 11 July
The Third Chamber of the Court of Justice has delivered its judgment in a case concerning the interpretation of Articles 49 and 56 TFEU and the principles arising from the Laezza judgment (C-375/14): Società Italiana Imprese Balneari (C-598/22).
Read on EU Law Live
Commission Implementing Decision terminating anti-subsidy investigation on imports of alkyl phosphate ester from China, published in OJ
Friday 12 July
Official publication was made of Commission Implementing Decision (EU) 2024/1900 of 11 July 2024 terminating the anti-subsidy investigation concerning imports of certain alkyl phosphate esters originating in the People’s Republic of China.
Read on EU Law Live
AG Kokott’s Opinion on conflict between free movement of capital and usufruct rights
Friday 12 July
Advocate General Kokott delivered her Opinion in a case concerning a preliminary reference involving the interplay between Article 63 on the freedom of capital and Article 17 of the Charter of Fundamental Rights on the protection of property: Nemzeti Földügyi Központ (C-419/23).
Read on EU Law Live
Advocate General Kokott recommends judicial review of Swissgrid’s exclusion from EU electricity balancing platforms
Friday 12 July
Advocate General Kokott delivered her Opinion in Case C-121/23 P, Swissgrid v. Commission, in which she addresses a critical legal question about what constitutes an ‘actionable measure’ or ‘challengeable act’ under EU law, specifically Article 263 TFEU.
Read on EU Law Live
Artificial Intelligence Act, published in OJ
Friday 12 July
The Artificial Intelligence Act, adopted on June 13, 2024, aims to create a unified legal framework across the EU for the development, marketing, and use of AI systems.
Read on EU Law Live
Taxation and free movement of capital: AG Kokott delivers Opinion on internally vs. externally managed investment funds
Friday 12 July
Advocate General Kokott delivered an Opinion on 11 July 2024, in Case C-18/23, involving F S.A., a Luxembourg-based investment fund, and the Polish National Tax Information Office (Dyrektor Krajowej Informacji Skarbowej), which addresses whether the free movement of capital under Article 63 of the TFEU mandates equal tax treatment for non-resident internally managed and resident externally managed investment funds.
Read on EU Law Live
Digital Services Act: Commission informs X of preliminary view concerning breaches of transparency requirements
Friday 12 July
The Commission informed X of its preliminary view that it is in breach of the Digital Services Act (DSA) in areas linked to dark patterns, advertising transparency and data access for researchers.
Read on EU Law Live
AG Pikamäe: EU law does not preclude legislation providing confiscation of illegally obtained assets not based on a conviction, subject to safeguards
Friday 12 July
AG Pikamäe handed down his Opinion in Lireva Investments and Others (C-161/23), a case concerning, in essence, the compatibility with Directive 2014/42, Framework Decision 2005/212, and Articles 17, 47 and 48 of the Charter of Fundamental Rights of national legislation providing for criminal proceedings for the confiscation of illegally obtained assets which are not based on a conviction and initiated in parallel with proceedings to establish the guilt of the alleged offender.
Read on EU Law Live
ESA issues Opinion on CO2 storage permit in Iceland
Friday 12 July
The EFTA Surveillance Authority (ESA) reviewed a draft permit from the Icelandic Environment Agency to the company Carbfix for the geological storage of CO2 at the Hellisheiði industrial park.
Read on EU Law Live