TABLE OF CONTENTS
IN-DEPTH:
Escaping Autonomy and legal Redress? Annulment Proceedings against Acts of EU Bodies, Offices, and Agencies in the European Economic Area
Markus Beham
When Certainty becomes fragile: Commission Guidance and the decentralised approach to EU sanctions: Jemerak (C-109/23)
Markus Beham
State Aid and Healthcare: is the Devil in the procedural as well as the contextual Details?: Lekarna Ljubljana (C-447/22 P)
Markus Beham
The Need for a CJEU Fast Track Procedure in Election Cases: Takeaways from a Decision of the Hungarian Supreme Court
Dániel G. Szabó
A preliminary Ruling on the Possibility for an accused Person to participate in Hearings via Videoconference: FP and Others (C-760/22)
Inga Žukovaitė
The Court of Justice revisits the ‘international element’ in the context of the Brussels I bis Regulation: Case FTI Touristik (C -774/22)
Carlos Santaló Goris
SYMPOSIUM ON THE 2024 REFORM OF THE STATUTE OF THE COURT OF JUSTICE OF THE EU:
The Future Will Tell. Of course it will, but on what criteria?
Michal Bobek
SYMPOSIUM ON THE SELECTION OF EU JUDGES AND THE 255 COMMITTEE:
Selecting EU Judges: the Role of the 255 Committee according to the Treaty
Giuliano Amato , Marta Cartabia , Dieter Grimm , Miguel Poiares Maduro , Rui Manuel Moura Ramos & José Luis Da Cruz
Vilaça
Sunlight is the best Disinfectant for EU judicial Selection
Alberto Alemanno
On the autonomous EU Concept of Suitability under Article 255 TFEU
François-Xavier Millet
THE LONG READ:
The Court of Justice’s Judgment in Google Shopping: Between Principles and Pragmatism
Justin Lindeboom & Vaszília Bartošová
HIGHLIGHTS OF THE WEEK
IN-DEPT H
Escaping Autonomy and legal Redress? Annulment Proceedings against Acts of EU Bodies, Offices, and Agencies in the European Economic Area
Markus Beham
As early as the 1970s, the Council of the European Communities used its implied powers to create decentralised agencies with their own legal personality to pursue specific goals under the Treaties (CEDEFOP and EUROFOUND being the first). As the Communities developed and grew into the European Union, so did their various subsidiary bodies diversify and transform into essential regulatory institutions in their areas of competence with immediate consequences for individuals and undertakings. As a counterweight, Article 263 TFEU allows any natural or legal person to bring annulment proceedings not only against acts of EU institutions but also of other bodies, offices, or agencies if these were ‘intended to produce legal effects vis-à-vis third parties’ and under the condition that the act must be of ‘direct and individual concern to them’.
Not all subsidiary organs of the Union are nowadays created as fully-fledged agencies but more flexible models of coordination such as the Single Resolution Board (SRB) or the European Public Prosecutor’s Office (EPPO) have been created. One of the most recent of these novelties is the European Data Protection Board (EDPB), which has been described as an ‘agency in the broader sense’ and somewhere between an agency and a coordinating body. Its legal basis lies in Articles 68 to 76 of the General Data Protection Regulation (GDPR) granting it a ‘ legal personality sui generis’. In it sit representatives of each data protection supervisory authority of the European Economic Area (EEA) states, consisting of the EU Member States plus Iceland, Liechtenstein, and Norway.
One of the main tasks of the EDPB is to ensure the coherence of the application of the GDPR. In one respect a coordination mechanism, in another a decision-making body, the EDPB has the power to express opinions and pass decisions that are binding upon the national supervisory authorities.
Sit back and wait for a preliminary ruling
In light of recital 143 of the GDPR (‘Any natural or legal person has the right to bring an action for annulment of decisions of the Board before the Court of Justice under the conditions provided for in Article 263 TFEU’), assumptions of EEA governments (such as Liechtenstein) and scholarly analysis, it appeared quite clear that acts of the EDPB could be challenged by concerned individuals and undertakings through an annulment proceeding. With the General Court issuing its order in WhatsApp Ireland v European Data Protection Board last year (currently awaiting appeal before the Court of Justice), the opposite appears to be the case (which has, curiously, been subject to almost zero academic commentary, exceptions alongside Daniel Sarmiento to be found in the German literature here as well as in passing here and here).
Without going into the details of the case itself, the significance for legal redress against acts of EU bodies, offices, and agencies lies in the assessment of the legal nature of acts of the EDPB by the General Court: it rejected the action for annulment on the basis that the act did not change the legal position of WhatsApp, but rather constituted an intermediate step binding only upon the national supervisory authority which still had (some) discretion reaching its final decision (ironically not with regard to the decision by the EDPB). The General Court consequently concluded that WhatsApp was not directly affected by the act of the EDPB.
While the General Court acknowledged that there are exceptions to the case law on intermediate acts ‘where the intermediate act produces independent legal effects in respect of which sufficient judicial protection cannot be ensured in the context of an action against the decision terminating the procedure’, this did not presently apply. WhatsApp could, after all, challenge the validity of the final act before national courts, which could then ask for a preliminary ruling from the Court of Justice.
The threshold to get there is, of course, both legally and practically much higher than the already difficult Plaumann test. Firstly, the parties have little bearing upon how the national court will phrase its question. Secondly, it is assumed that the validity of an EU act will be the default assumption for any domestic court of lower instance. It is also not unheard of that a national court of last instance (wrongly) assumes an ‘acte clair’ or ‘acte éclairé’ situation (see for a recent example the Austrian Supreme Court which abstained from requesting a preliminary ruling concerning the application of the Lexitor judgment of the Court of Justice through conforming interpretation, instead focussing on the Austrian academic debate and applying domestic law contrary to the Consumer Credit Directive). This only leaves the affected party with the possibility of pursuing state liability with its additional hurdles.
Legal redress in the European Economic Area
Leaving all this aside, what if the WhatsApp case did not play out in Ireland? The GDPR also applies within the EEA meaning that the EDPB may issue decisions binding upon the data protection supervisory authorities of Iceland, Liechtenstein, and Norway (not Switzerland which only participates in EFTA, the European Free Trade Association, but not in the EEA). This approach is unusual since the usual design envisions a two-pillar structure in which the EEA pillar emulates the EU pillar, resulting in two parallel, yet legally distinct decisions (as in the case of the European Chemicals Agency, for example). In the case of the GDPR, the Commission pushed for what the Liechtenstein government has called a ‘full EDPB solution’ that should imply the possibility of annulment proceedings (contrary to what the General Court determined in the WhatsApp case).
The EDPB has, indeed, already issued decisions and opinions addressed to EEA supervisory authorities. If the finding of the General Court in the WhatsApp case is correct, then a natural or legal person affected by a decision of the EDPB in one of the EEA states will end up before the national courts of Iceland, Liechtenstein, and Norway. The issue here is that these are not courts as understood under Article 267 TFEU, meaning that they cannot request a preliminary ruling from the Court of Justice.
Of course, Article 34 of the EFTA Surveillance and Court Agreement (SCA) allows the request of a preliminary ruling in the form of an advisory opinion from the EFTA Court. While the State Court of Liechtenstein has recognised the right of an applicant to such a preliminary ruling in light of Article 6 of the European Convention on Human Rights (ECHR) and the Liechtenstein Constitution, Article 51a of the Norwegian Courts of Justice Act makes it a voluntary decision of the court that is not subject to review. If an advisory opinion is sought, it is still up to the requesting domestic court whether it will abide by the answer (as consistently held by the Norwegian Supreme Court). The situation is not much different in Iceland where the courts apply a restrictive approach to Article 34 SCA. What the EFTA Court cannot do is annul or invalidate acts of EU bodies, offices, or agencies. At most, what it can do, is suggest an interpretation.
What seems like a weak straw for those affected by acts of EU bodies, offices, or agencies within the Union, leaves those in the EEA with the comfort of Roman jurist Asurnipal’s dictum: ‘Coram iudice et in alto mari sumus in manu Dei’ (‘Before the court and on the high seas we are in God’s hand’). Whether the national court will request a preliminary ruling and whether it will apply the advisory opinion to its reasoning is far from certain.
From Luxembourg to Strasbourg
One of the most intricate interactions between public international law and EU law – the relationship between the Union and the EEA/EFTA – reveals weaknesses of the hallowed principles of the Court of Justice. For a court that has recently proven so jealous in guarding its exclusive jurisdiction over matters concerning the interpretation of EU law (think Achmea, discussed here and here), it would be surprising for the Court to uphold the reasoning of the General Court. It would effectively exclude decisions by the EDPB from direct judicial review. As in the case of intra-EU-BITs, the Court may be on the way to eliminating a pathway to legal redress without duly considering the existence of a feasible alternative. In addition, excluding EU bodies, offices, or agencies from appearing before the Court of Justice of the European Union does not necessarily serve the coherence and consolidation of EU positions.
Where to turn if the reasoning of the General Court is upheld with no hope for annulment or consistent application of EU law? There is still the right to a fair trial under Article 6 ECHR to reckon with. In its Bosphorus judgment (and confirmed post Lisbon in Michaud v. France), the European Court of Human Rights (ECtHR) carefully delineated the relationship between the rights under the ECHR and the obligations of Member States of the European Union under the Treaties. The ECtHR – similar to the Solange jurisprudence of the German Federal Constitutional Court – accepted the latter as a justification for measures ‘as long as the relevant organisation is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides’ (para. 155).
Iceland, Liechtenstein, and Norway are all parties to the ECHR. Refusing direct legal redress might likely surpass the line drawn in Bosphorus and lead the ECtHR to review EEA Court judgments in light of Article 6 ECHR, requiring them to carefully emulate the annulment proceedings by way of Article 34 SCA. That the EEA itself does
not meet the Bosphorus presumption was already made clear by the ECtHR in the Konkurrenten.no and Holship judgments. It has also been pointed out that fundamental rights challenges are not possible before the EFTA Court. Without a remedy to challenge an agency decision in Iceland, Liechtenstein, or Norway, admissibility to Strasbourg seems promising.
But it is not as though EU primary law did not itself provide for due process. Interpreting Article 263 TFEU in light of the ‘effective remedy’ guaranteed by Article 47 of the Charter of Fundamental Rights (bolstered through its Articles 52 and 53 by Article 6 ECHR) would make a resolution of the matter in Luxembourg seem a little less convoluted than in Strasbourg – and allow the preservation of autonomy while at it.
Markus Beham is Associate Professor, Chair of Constitutional and Administrative Law, Public International Law, European and International Economic Law at the University of Passau.
Beham, M.; “Escaping Autonomy and legal Redress? Annulment Proceedings against Acts of EU Bodies, Offices, and Agencies in the European Economic Area”, EU Law Live, 24/09/2024, https://eulawlive.com/op-ed-escaping-autonomy-and-legal-redress-annulment-proceedings-against-acts-of-eu-bodiesoffices-and-agencies-in-the-european-economic-area/
When Certainty becomes fragile: Commission Guidance and the decentralised approach to EU sanctions: Jemerak (C-109/23)
Xavi Codina
‘Restrictive measures’, as international sanctions are technically known in the European Union, provide all EU law scholars with a great deal of food for thought on a range of issues. The latest development is the judgment in Jemerak (C-109/23), handed down by the Court of Justice on 5 September 2024.
Jemerak is notable for two reasons: first, because it helps clarify the concept of ‘legal advisory services’ as laid down in Article 5n(2) of Council Regulation 833/2014, in the context of the prohibition on providing such services to Russian entities (an issue of utmost concern to many operators throughout Europe concerned about what services they can provide to their Russian subsidiaries). Second, because it could impact the usefulness of the Commission’s guidance on international sanctions, guidance which is seen by operators as an essential tool due to the rules’ complexity. This Op-Ed focuses on the latter.
The EU’s decentralised system of restrictive measures
Each package of EU restrictive measures consists of two main legal instruments: a Council decision adopted under the Common Foreign and Security Policy (‘CFSP’) and a Council regulation adopted under the framework of the EU policies. Once the Council adopts its decision, the EU and the Member States take the necessary measures, within their respective spheres of competence, to implement the commitments laid down in the Council decision. Accordingly, the Council adopts a Council regulation to implement CFSP commitments related to the common commercial policy. In the case of the Russian sanctions package, the two main regulations are Council Regulation 269/2014 (individual financial sanctions) and Council Regulation 833/2014 (sectoral sanctions).
Once the Council adopts the regulation, Member States and EU operators must take all necessary measures to ensure it is correctly applied. Member States are responsible for the most important enforcement-related decisions: granting authorisations to EU operators, designing the infringement regime (increasingly harmonised by means of Directive 2024/1226) and prosecuting EU operators’ infringements of the regulations.
The provisions of the two Council regulations regarding the Russian sanctions package are highly complex legal texts, full of vague legal concepts and cross-references that do not always fit together properly. This is merely the result of the inherent nature of these rules, which are adopted by the Member States unanimously (i.e. lengthy negotiations) and which try to capture very different transactions.
Whenever applying restrictive measures, public authorities or EU operators engage in an exercise of interpretation. Their interpretations may not coincide with the correct interpretation of the text, which, needless to say, is a matter
for the Court of Justice alone. And yet, it is also no secret that, in this very sensitive area, economic operators rarely challenge the interpretations of the authorities, who could ultimately punish them for non-compliance. It is only through such a hypothetical infringement procedure that a judge could refer the matter for a preliminary ruling, and only then would we know the correct interpretation of the provision. The system therefore depends on the courts’ willingness to refer questions for a preliminary ruling (the Spanish courts, for example, rarely refer questions to the Court of Justice concerning administrative sanctions imposed by public authorities).
As a result, in too many cases the sanctions regime applied at the Member State level is not necessarily the one designed by the Council, but a distorted version. The result is that, in some Member States, the regime is applied in a restrictive manner, while in others a softer interpretation is applied, minimising the damage to domestic entities.
The Commission’s guidance as a de facto harmonisation tool
Navigating this challenging regulatory reality operators are looking for light to be shed on how they can assume fewer risks. The beacon casting that light on the EU sanctions regime is the guidance provided by the Commission in a variety of instruments: opinions (e.g. here), information notes (e.g. here), guidance (e.g. here), notices including guidance notes (e.g. here), statements (e.g. here) and, last but not least, the Frequently Asked Questions document (here). The latter is the jewel in the Commission’s crown in this area, as evidenced by the herculean (and much appreciated) efforts of the Commission to keep the FAQs up to date.
Under the EU legal system, these Commission documents are not binding. However, anyone familiar with the day-to-day life of economic operators affected by the sanctions regime recognises that these documents cannot be considered mere ‘soft law’. In practice, operators tend to follow the Commission’s position in order to avoid being accused of non-compliance. Note that this is an area where the exercise of due diligence is often the difference between being penalised and not being penalised. The Commission guidance instruments therefore act as a de facto tool for harmonising the EU sanctions regime.
Jemerak
In Jemerak, the Court of Justice – unlike the Commission – considered that the authentication and execution of a contract of sale by a notary, in the context of a transfer of immovable property owned by a legal person established in Russia, did not fall under the concept of ‘legal advisory services’ and, therefore, was not prohibited under Article 5n(2) of Council Regulation 833/2014
This ruling may have chipped away at the Commission’s guiding role here. This is the case not only because the Court came to the opposite interpretation to that of the Commission, but – most crucially – because the Court voluntarily overlooked the existence of the guidance documents in this area and did not take them into account in its reasoning. The Court tacitly followed the Advocate General’s open declaration that the existence of the guidance ‘is of no consequence... only the Court is competent to interpret the regulations applicable in the domain of EU
restrictive measures, which means that that guidance cannot determine, in any manner, the outcome of my analysis’ (point 69 of the Opinion of Advocate General Medina).
This line of reasoning is unsurprising; the Court has previously held that the Commission’s guidance does not affect how it carries out its hermeneutic task (e.g. Bank Melli Iran, C-124/20, para. 61).
This reasoning is undoubtedly correct from the point of view of the EU’s system of sources of law (to do otherwise would be to turn soft law into binding law through the back door). It is nonetheless surprising that national judges are still required to take specific soft law instruments into account when applying EU law (e.g. Balgarska Narodna Banka, C-501/18, para. 80: ‘even if recommendations are not intended to produce binding legal effects, national courts are obliged to take them into consideration with a view to resolving the disputes submitted to them, in particular when they are intended to supplement binding European Union provisions’).
This reasoning is more problematic from a practical perspective since the erosion of the Commission’s guidance on international sanctions leaves economic operators in the dark – while they are expected to exercise a high level of due diligence and not violate obscure rules, they are confronted with different interpretations depending on the country in which they are located.
Now that the Russian sanctions regime has enabled the Union to come of age in the area of international sanctions, it should – ideally – move towards a more uniform regime and give the Commission the necessary powers to issue binding acts.
In any case, it is essential for the Court of Justice, when examining cases of liability for breach of restrictive measures (i.e. a sanction imposed by a Member State), to not voluntarily ignore the Commission’s guidance, but rather take it into account when assessing whether the operator has exercised due diligence.
Xavi Codina is a Senior Associate at an international law firm and Professor of Administrative Law and EU Law at CUNEF University. His practice includes International Sanctions.
Codina, X.: “When Certainty becomes fragile: Commission Guidance and the decentralised approach to EU sanctions: Jemerak (C-109/23)”, EU Law Live, 25/09/2024, https://eulawlive.com/op-ed-when-certainty-becomes-fragile-commission-guidance-and-the-decentralised-approach-to-eu-sanctionsjemerak-c-109-23/
State Aid and Healthcare: is the Devil in the procedural as well as the contextual Details?: Lekarna Ljubljana (C-447/22 P)
Mary Guy
The Court of Justice has recently reaffirmed the Commission’s obligation to initiate the formal in-depth investigation procedure under Article 108(2) TFEU in the context of potential state aid granted to Lekarna Ljubljana, a public pharmacy in Slovenia. In Slovenia v Flašker v Commission (‘Lekarna Ljubljana’) (C-447/22 P) , the central issue was the extent of the Commission’s investigation and whether this was commensurate with its 2020 finding that the state measures complained of did not constitute state aid. As such, the Court of Justice’s ruling adds to a growing body of recent case law regarding the failure to initiate the formal investigation procedure of Article 108(2) TFEU. It also adds to the continuously evolving questions surrounding how state aid in the healthcare context should be managed.
Facts
Petra Flašker, an operator of a private pharmacy, Kosobrin, lodged a complaint with the Commission in 2016 of alleged state aid measures granted in favour of Lekarna Ljubljana. The Commission’s preliminary assessment found that the alleged measures did not seem to constitute state aid (para. 1(3)), but the complainant upheld its complaint, and provided additional information. The complainant received support from 16 other private pharmacy operators, but these did not advance additional arguments. The Commission’s assessment included a review of the relevant national legal framework, particularly the two Pharmacy Services Acts (ZLD in force between 1992 and 2017, and ZLD1 in force since 2017). These provided that municipalities are responsible for providing pharmacy services on their territory and distinguish between public and private pharmacies. The Commission noted that there are ‘around 100 private pharmacies’ and ‘around 230 public pharmacy institutes’ in operation in Slovenia. Furthermore, the Commission observed that public and private pharmacies offer fundamentally the same services, including dispensing medicinal products and pharmaceutical patient care, such as preventive and health education activities, public pharmacies are subject ‘to some additional rules’ regarding the use of profits for investing in pharmacy facilities and equipment (para. 2(3)).
The alleged measures included a free lease of land by the municipality of Škofljica to Lekarna Ljubljana, assets granted under management, exemption from concession fees, and failure to share Lekarna Ljubljana’s profits. In summary, the Commission found that the four measures did not comprise state aid on the bases that the municipality acted in line with the market economy operator principle regarding the lease of land; that the assets granted under management constituted existing aid with no amendment by the establishment of Lekarna Ljubljana prior to Slovenia’s accession to the EU; that the exemption from concession fees either did not confer a selective advantage or did not distort competition depending on the municipality; and that no advantage was
conferred by the failure to share in Lekarna Ljubljana’s profits. The Commission reached this decision without opening a formal investigation under Article 108(2) TFEU.
Flašker brought an action for annulment against the Commission’s 2020 decision claiming infringement of the Article 296 TFEU duty to state reasons, and of Articles 107 and 108 TFEU as a result of an incorrect assessment of facts and an error in the legal characterisation of facts concerning the grant of assets under management. A third plea was that the Commission could not lawfully adopt the contested decision without initiating the Article 108(2) TFEU investigation procedure.
The General Court rejected the first two pleas, but upheld the third, and annulled the part of the contested decision focusing on the question of existing aid regarding the grant of assets under management to Lekarna Ljubljana. The General Court’s judgment examined whether the assets under management were granted to Lekarna Ljubljana’s predecessor in 1979 to enable it to commence its activities, or incorporated subsequently by both the predecessor and transferred to Lekarna Ljubljana (when it was established in 1997). The General Court held that the preliminary Article 108(3) TFEU examination would not have allowed the Commission to conclude whether the post-1979 incorporation firstly should be characterised as existing or new aid within the meaning of Article 1(b) of Regulation 2015/1589, and secondly had taken place under market conditions. The General Court concluded that the Commission was faced with serious difficulties which should have led it to initiate the Article 108(2) TFEU procedure ( T-392/20, para. 56). The objective interpretation of ‘serious difficulties’ was underscored.
In response, the Republic of Slovenia appealed (supported by the Commission), claiming that the Court of Justice should set aside the General Court’s judgment, and dismiss the action brought at first instance. Alternative grounds for appeal comprised a request to refer the case back to the General Court. In his Opinion, Advocate General Rantos focused on the obligation on the Commission to initiate the Article 108(2) TFEU formal investigation procedure, and the misinterpretation of the facts and errors of law regarding the ‘serious difficulties’ in classifying the assets under management in 1979 as ‘existing aid’. Overall, Advocate General Rantos proposed that the Court of Justice dismiss both grounds of appeal as unfounded.
The Court of Justice has now upheld the General Court’s judgment and dismissed the appeal in its entirety. In particular it underscored the Commission’s lack of discretion in initiating an Article 108(2) TFEU formal investigation procedure. The Court also concurred with the General Court’s view that the Commission’s failure to conduct a more detailed examination of the legal and economic framework of pharmaceutical activity in Slovenia left it facing serious difficulties which should have prompted the aforementioned formal investigation.
Analysis
With Lekarna Ljubljana, we have a case, acknowledged by the Commission – in the context of its 2022 evaluation of state subsidy rules for health and social services of general economic interest (SGEI) – as being concerned with questions of applicability of the state aid rules to the healthcare sector. In this regard it has been set alongside
Dôvera (C-262/18 P and C-271/18 P) regarding health insurance in Slovakia, and Casa Regina Apostolorum (C-492/21 P) regarding private provider delivery of public healthcare services in Italy as instances of healthcarerelated cases which have proceeded to appeal first to the General Court and then to the Court of Justice. The 2022 evaluation was published against the backdrop of the Court of Justice’s ruling in Dôvera, and the General Court’s rulings in Casa Regina Apostolorum and Lekarna Ljubljana. The 2022 evaluation further concluded with calls for more clarity of how to interpret ‘economic’ and ‘non-economic’ activities in the healthcare context to better support implementation of the SGEI Decision, which specifies hospitals and activities relating to ‘health and long-term care’ as candidates for a ‘light-touch’ notification procedure. Whether the Court of Justice’s subsequent rulings in Casa Regina Apostolorum (April 2023) and now Lekarna Ljubljana (September 2024) provide this necessary clarity is moot.
It may even be argued that Lekarna Ljubljana could be considered a ‘healthcare’ case alongside Casa Regina Apostolorum and Dôvera. However, it is also distinct from other aspects of the Commission’s focus on pharmaceutical activity, which seems to concentrate primarily on a European, even global level.
In some ways, Lekarna Ljubljana arguably raises similar questions to ‘healthcare’ cases about the reach of state aid rules and Member State autonomy regarding healthcare system organisation enshrined by Article 168(7) TFEU. Context identified by the Commission, such as the relative numbers of public and private pharmacies, and the distinction between these, hinted at this, and the analysis of ‘existing aid’ in this case is informative for what it reveals about the evolution of pharmaceutical provision within the Slovenian healthcare sector.
However, where Casa Regina Apostolorum and Dôvera focused on the proper interpretation of the ‘undertaking’ concept triggering the very applicability of the state aid rules, Lekarna Ljubljana appears if anything more concerned with the associated criterion of a ‘selective advantage’. The difficulty of defining this aspect in a state aid analysis suggests that the determination of recourse to an in-depth Article 108(2) TFEU investigation could be welcome, not only with regard to this case, but with other healthcare cases. A notable example of where an Article 108(2) TFEU investigation was eventually conducted in the healthcare context was in the culmination of IRIS-H (SA.19864). While this did not result in a fundamentally different outcome in that case, it sent an important signal about the level of scrutiny needed in examining national healthcare systems. This level of detailed exposition is necessary to understand how the coexistence of, and interaction between public and private healthcare delivery (including pharmaceutical provision) in EU healthcare systems may be evolving. Respect for procedural rules is important for numerous reasons, but one highlighted by Lekarna Ljubljana is how greater engagement with context via Article 108(2) TFEU investigations may help bring more clarity to the fascinating and complex area of state aid and healthcare.
Mary Guy is Senior Lecturer in EU Law and Public Law at Liverpool John Moores University and also co-coordinates the interdisciplinary EU Health Governance Research Network. Dr Guy researches on European Union and comparative law, in particular health, competition law, and internal market law. Dr Guy’s personal website is available here (https://www.maryguy. com/), and a selection of her publications available here (https://www.ljmu.ac.uk/about-us/staff-profiles/faculty-of-business-andlaw/school-of-law/mary-guy).
SUGGESTED CITATION: Guy, M.; “State Aid and Healthcare: is the Devil in the procedural as well as the contextual Details?: Lekarna Ljubljana (C447/22 P)”, EU Law Live, 26/09/2024, https://eulawlive.com/op-ed-state-aid-and-healthcare-is-the-devil-in-the-procedural-as-well-as-the-contextualdetails-lekarna-ljubljana-c-447-22-p/
The Need for a CJEU fast Track Procedure in Election Cases: Takeaways from a Decision of the Hungarian Supreme Court
Dániel G. Szabó
During this year’s European Parliament (‘EP’) election campaign, the Hungarian Supreme Court, the Kúria, ruled that no judge should ever submit a preliminary question concerning elections to the CJEU because preliminary proceedings are too slow. The case concerned the distribution of political messages by the government and a possible violation of state neutrality during elections. The Kúria’s decision is a blatant violation of EU law. Still, it has a grain of truth: a preliminary ruling procedure generally lasts for months – too long for a fast-paced election campaign. Hence, I argue, EP elections require a special, emergency preliminary ruling procedure which should yield the outcome within days.
A case in Hungary
During the Covid-19 pandemic, the government established a newsletter for health-related information, which was later used to disseminate information for other purposes. In 2022, during the national election campaign, the government used the newsletter to criticise the opposition for alleged support of sending arms to Ukraine, which was challenged, arguing that Hungarian state institutions have violated their obligation of neutrality. Indeed, the Kúria held that the government violated the equality of arms. However, the Constitutional Court overruled this decision, arguing that there is no requirement in Hungary for political state bodies to be neutral in election campaigns. According to OSCE, this decision ‘effectively authorised the government to engage in election campaigning.’ In May 2024, a similar issue occurred concerning the election for the European Parliament. During the EP campaign, the Hungarian Government sent a similar newsletter on NATO’s role in Russia’s war against Ukraine, echoing the ruling party’s position. A citizen challenged the messaging and requested the Kúria to ask the CJEU whether EU law requires a certain degree of neutrality from state bodies during the European elections (read the full submission here).
According to the applicant, the CJEU could apply EU law for EP elections similarly to the construction under Articles 2 and 19 TEU in judicial independence cases. The core principle is that, similar to courts, EP elections cannot be considered fair if any national electoral system is fundamentally flawed. Despite the lack of explicit requirements for state neutrality in EU law, some provisions and case law offer strong arguments supporting such a view. Article 2 TEU refers to democracy and equality. The EU Charter and the TEU details these requirements for representative democracy (Article 10(1) TEU), the principle of equality (Article 9 TEU and Article 20 of the EU Charter), and free elections (Article 14(3) TEU and Article 39(2) of the EU Charter). Without a sufficiently neutral state, an election cannot be truly democratic, equal, or free. Equality of competing parties and state neutrality are the two sides of the same coin, according to Venice Commission and OSCE documents. Although
the CJEU has yet to establish this connection, it has already confirmed the requirement for equality of voters in EP elections in Eman and Sevinger. Advocate General de la Tour went one step further and argued in two cases for the robust application of the equality principle regarding the right of EU citizens to join political parties in the Member State where they are voting. Moreover, the established case law by the European Court of Human Rights on state neutrality co-determines the corresponding EU standards under Article 6(3) TEU and Article 52(3) of the EU Charter.
The Kúria dismissed the case for its lack of standing, which is a separate problem on its own. What is more interesting is that the judgment – delivered by the judicial panel involving the President of the Kúria – categorically denied any possibility of turning to the CJEU in an election case due to the short deadlines required by national law. The Kúria – relying on the provision in national law setting a deadline of three days for courts in election cases – stated that ‘there is no place for the … initiation of the preliminary ruling procedure, … because [this] would result in a violation of the obligation to deliver a decision within three days.’
The CJEU is not fast enough
The Kúria’s ruling violates Article 267 TFEU, but it is right on the need for swiftness in election disputes. It shows that national courts might find themselves between two pressing obligations: enforcing EU law through the preliminary reference procedure while ensuring legal certainty by deciding election disputes within days. The Kúria’s argument is flawed because national law cannot hamper judges’ ability to reach the CJEU, even in matters of urgency. Moreover, concerning elections disputes, this view was confirmed by the CJEU in Donnici and Junqueras: ‘it is for the national courts, where appropriate after obtaining a preliminary ruling from the Court of Justice, … to rule on the lawfulness of the national electoral provisions.’ The Kúria did not shy away from violating EU law on the preliminary ruling procedure in the past. However, the slowness of the preliminary ruling procedure is a real issue in election disputes. The Venice Commission recommends that ‘three to five days at first instance (both for lodging appeals and making rulings) seems reasonable for decisions to be taken before the elections. It is, however, permissible to grant a little more time to Supreme and Constitutional Courts for their rulings.’ The election of the EP is running on short deadlines. Under Article 11(3) of the 1976 Electoral Act, the EP has to convene within one month after its election. Until then, disputes affecting the election result must be settled.
Ruling within days in a complex election dispute is not impossible for courts comparable to the CJEU. For example, the United States Supreme Court rendered the 8,000-word-long Bush v. Gore judgment in four days during the 2000 presidential election with enormous consequences for the electoral race. The Florida Supreme Court ordered the recount of the votes on December 8, 2000. The Supreme Court stayed this order one day later and issued a final judgment within four days altogether, on December 12, ending the election recount and resulting in George W. Bush becoming the president. Several Member States’ supreme and constitutional courts also deliver judgments quickly during elections to ensure a fair process.
Yet, the preliminary ruling procedure in its current form is too slow to keep up with such speed. On average, an expedited preliminary ruling procedure lasts more than seven months. The even faster urgent preliminary ruling procedure (‘PPU’) is applicable only in the area of freedom, security and justice and, therefore, not available for election cases. Nevertheless, on average, even these cases are pending for more than four months. In Delvigne, concerning the right to vote of a convicted person, the national court issued a request for a preliminary ruling in December 2013, five months before the 2014 EP elections. The Court, however, delivered its judgment only after the elections in October 2015.
The CJEU is equipped to respond extremely quickly, even within the day, when issuing an interim measure. A fully-fledged ruling is different from an interim measure, but there are certain arrangements already in place which can be built upon for an emergency elections procedure. Such an emergency procedure would require special arrangements for deliberation, observation submission, and rapid translation services. A change in the Treaty or the Statute of the CJEU would not be necessary, however, the CJEU’s Rules of Procedure – as they prescribe the time limits of at least 15 days in the expedited procedure – would need to be amended with the Council’s assent.
EU democracy concerns
Time pressure in election cases is a real issue, and national courts and the CJEU should respond to this challenge together. While there is no question that national courts should submit questions for preliminary reference if required by EU law, the CJEU’s Rules of Procedure should be responsive to the nature of election disputes and should establish an emergency preliminary ruling procedure. In other words, there is an implicit conditionality: without a mechanism capable of rendering judgments within days, available at least during EP elections every five years, it is unlikely that national courts would initiate preliminary reference proceedings concerning the elections.
In light of the dual crises of the rule of law and democracy in some Member States, the time might have arrived for the Court to exert complete constitutional control not only over the judiciary but also over the election of the EU legislature. Establishing a swift preliminary ruling procedure for elections is an important procedural step in this direction. As for the substance, the logic of the Court’s rule of law practice should provide a model for democracy-related cases. This would not make the CJEU an electoral court: collecting evidence and applying national law would remain with national courts. The Court’s role in electoral matters – as already pronounced in Donnici and Junqueras cited above – is a traditional one under Article 267 TFEU, which involves interpreting EU law. This is not a harmonisation of electoral processes, but the enforcement of constitutional provisions primarily found in the Treaties and the 1976 Electoral Act. The exact procedural details should remain to be filled in by Member States. It is remarkably similar to the judicial independence case law where the Member States are free to organise their judiciaries as long as their independence meets a certain threshold required by EU law.
Unfair EP elections in one Member State are not only an issue for that jurisdiction. To argue in somewhat simplistic terms, if EP elections in Hungary are not fair, the legitimacy of an EP decision adopted by a margin lower than the number of Hungarian MEPs can be questioned. But without problems of democracy or the rule of law at the national level, the CJEU is still better positioned to interpret EU law than any national court. Only
the CJEU can ensure a uniform application of the Treaties and the 1976 Electoral Act across the EU, and thus ensure the equality of the vote of all EU citizens. After all, the CJEU is the ultimate EU court with judges from all Member States tasked to ensure that the Treaties are observed.
Dániel G. Szabó is Head of Department at Budapest City Hall and a former member of the Hungarian National Election Commission. With an LLM in Comparative Constitutional Law, he has worked on promoting the rule of law and ensuring judicial independence and was a re:constitution Fellow at Leiden University. He served as an external adviser in the case discussed above; the views expressed here are his own.
Szabó. D. G.; “The Need for a CJEU fast Track Procedure in Election Cases: Takeaways from a Decision of the Hungarian Supreme Court”, EU Law Live, 27/09/2024, https://eulawlive.com/op-ed-the-need-for-a-cjeu-fast-track-procedure-in-election-cases-takeaways-from-a-decision-of-thehungarian-supreme-court/
A preliminary Ruling on the Possibility for
an accused
Person to participate in Hearings via Videoconference: FP and Others
(C-760/22)
Inga Žukovaitė
Introduction
It is frequently observed that all procedural rights directives give rise to a common concern: do they incorporate digital applications? The regulation of remote criminal proceedings is a matter surrounded by some uncertainty with respect to the procedural rights guaranteed by EU law. In its discussion on the right of the accused to be present at trial, Directive 2016/343 makes no mention of the possibility of enacting this right through the use of videoconferencing or other digital alternatives. Despite the lack of comprehensive regulation, it is anticipated that the Court of Justice of the European Union (‘the Court of Justice’ or ‘the Court’) will establish standards for videoconferencing in criminal proceedings through its interpretation of existing directives on procedural rights. On 4 July 2024, the Court delivered in long-awaited judgment in FP and Others (Trial by videoconference, C-760/22), dealing specifically with the assessment of distance proceedings.
It is common knowledge that the purpose of preliminary rulings is to establish the uniform interpretation and application of the law across all EU Member States. That is why this case was expected to serve as a significant contribution to the interpretation of procedural directives pertaining to digital adaptability, clarify the conditions for the integration of technology in the EU criminal justice system, and reinforce EU policy on the digitalisation of criminal justice. In light of the above, this Op-Ed seeks to examine whether the participation of the accused in criminal proceedings conducted remotely falls exclusively within the competence of Member States, or whether it may be regarded as an area of EU law regulation. It then considers which basic standards should be applied for the protection of the rights of the accused in the regulation and application of remote participation.
Case background
The Bulgarian Specialised Criminal Court (Spetsializiran nakazatelen sad) made a request for a preliminary ruling in the case in the main proceedings, leading to the judgment at issue. The judicial proceedings in a Bulgarian national court concerned a criminal case involving seven individuals who were facing serious criminal charges. As one of defendants – FP – lived in the United Kingdom, he had requested to participate remotely. His defence lawyer was physically present in the courtroom and did not object. The first-instance court granted the possibility of participating remotely as, at the time, the Law on the measures during the state of emergency was in force, which allowed for remote proceedings. In addition, the court took measures such as ensuring a form of connection
where simultaneous communication was possible, allowing remote participation to be opted out of at any time, and allowing confidential communication with the defence counsel. By June 2022, the defendant had participated on several occasions both in person and remotely. He finally requested that the proceedings continue remotely while he was considered to be absent. That request was made on the grounds that Article 6a(2) of the Law on the measures during the state of emergency had ceased to apply as from 31 May 2022. The Bulgarian Specialised Criminal Court allowed FP to decide how to discharge the duty to be present at the criminal proceedings and enabled that person to participate online, but did not accept the proposal to regard FP as absent. It took the view that, even if FP was not physically present in the courtroom, he could participate in the trial effectively. However, this situation raised doubts for the Bulgarian Specialised Criminal Court as to whether he could continue the proceedings in this way, noting that the Criminal Procedure Act does not explicitly provide for, nor prohibit, this form of participation as a right. This situation raised doubts as to the compatibility of this decision with Article 8(1) of Directive (EU) 2016/343. The Bulgarian Specialised Criminal Court found it necessary to request a preliminary ruling owing to the lack of clarity on the scope of the provisions. By doing so, the Bulgarian Specialised Criminal Court sought to test the compatibility of remote proceedings with EU legal standards by asking the following question: can online presence be qualified as ‘presence’ within the scope of the right to be present as interpreted in Directive 2016/343? Advocate General Medina’s Opinion in this case serves to further enhance its intrigue. In her Opinion, the AG argued that Article 8(1) of that directive should be interpreted as exempting from its scope the use of videoconferencing in criminal proceedings, which would then be for the individual Member States to regulate.
EU law does not constitute a legal framework for remote case hearings
It should be noted that Bulgarian law lacks clear guidelines regarding the legitimacy of remote proceedings. While there are no explicit prohibitions, there is also no precise regulation of the conditions under which such proceedings may be conducted. That’s why the national court was inquiring whether the absence of such regulation was likely to undermine the objectives set out in the procedural rights directive. As noted in the Advocate General’s Opinion, ‘the case in the main proceedings raises the question whether that provision precludes a decision taken by a criminal court to allow an accused person to participate by videoconference in the trial despite the absence of a specific legal basis in national law providing for such means of participation’ (point 2). It seems likely that the Bulgarian national court was attempting to ascertain whether there should be established rules and clear national regulation governing the use of videoconferencing in criminal proceedings as an implementation of the right of the accused as enshrined in the directive.
The question referred by the Bulgarian national court gave rise to a debate on whether remote participation can be interpreted as an integral aspect of the accused’s right to participate in the proceedings (a form of participation with specific characteristics), which falls within the scope of Directive 2016/343, with all the consequences for the harmonisation of the law that entails. Nevertheless, the Court of Justice has offered an alternative interpretation: it has determined that the directive does not extend to the regulation of remote participation.
In its interpretation of the directive’s substance and objectives in the context of the question at issue, the Court referred to established case law (C-420/20, para. 41). It reasoned that the purpose of Directive 2016/343 is to establish minimum common rules on certain aspects of the presumption of innocence in criminal proceedings and the right of suspects and accused persons to be present at trial. It is not intended to harmonise in detail the criminal procedure in the context of the trial of such persons. Although the Court of Justice stated that the regulation of videoconferencing falls outside the scope of the directive, it nevertheless made it clear that the general right to participate in proceedings, as enshrined in the directive, is compatible with remote participation. This is supported by the Court’s finding that ‘since Article 8(1) of Directive 2016/343 does not govern that issue, that provision cannot preclude an accused person, who makes an express request to that effect, from being authorised to participate in the hearings in his or her trial by videoconference’ (para. 29).
Moreover, the judgment suggests that if Member States enable the accused person to exercise the right to be present at his or her trial remotely, the rules they lay down may not undermine the objective pursued by Directive 2016/343, which is to enhance the right to a fair trial in criminal proceedings (para. 30). This means that remote participation has been assessed as a possible additional manner of ensuring participation in court. The use of such a means must be consistent with the aim of extending the rights provided for in the directive, ensuring a higher level of protection. In this case, the Court of Justice determined that Member States are free in the choice of the methods employed to guarantee, in their judicial systems, the right of suspects and accused persons to be present at their trial, but these methods (rules) must comply with the right to a fair trial, the presumption of innocence and the right of defence under the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights. This can be attributed to several factors, including the perception that criminal procedural law is closely tied to national sovereignty and the reality that different countries adopt digitalisation processes in ways that are reflective of their unique national traditions and justice systems.
Conclusion
The Court of Justice has ruled that the remote participation of the accused online presence cannot be qualified as a form of ‘presence’ within the scope of the right to be present, as interpreted in Directive 2016/343. At this moment in time, there is no harmonisation under EU law at EU level. Emphasising that the regulation of remote criminal proceedings is a matter of national law, and noting that national rules may not undermine the directive’s aim to strengthen the right to a fair trial, and referring to the case law of the ECtHR as a standard for the protection of rights, the Court has ruled out the possibility of resolving the issue of the harmonisation of the use of technologies for the purpose of criminal proceedings through Directive 2016/343. Nevertheless, by concluding that remote participation (at the express request of the person at issue to participate, by videoconference, in the hearing concerning their case, provided that the right to a fair trial is guaranteed) does not contradict the directive, the Court has acknowledged that the objective of strengthening the rights of the accused would not be achieved by forbidding remote participation.
This project has received funding from the Research Council of Lithuania (LMTLT), agreement No S-PD-2257.
Inga Žukovaitė is a lecturer and postdoctoral research fellow at Mykolas Romeris University (Vilnius, Lithuania).
Žukovaitė, I.; “A preliminary Ruling on the Possibility for an accused Person to participate in Hearings via Videoconference: FP and Others (C-760/22)”, EU Law Live, 23/09/2024, https://eulawlive.com/op-ed-a-preliminary-ruling-on-the-possibility-for-an-accused-person-to-participate-in-hearings-viavideoconference-fp-and-others-c-760-22/
The Court of Justice revisits the ‘International Element’ in the Context of the Brussels I bis Regulation: FTI Touristik (C-774/22)
Carlos Santaló Goris
1. An unwritten condition for the application of the Brussels I bis Regulation
Article 1 of the Brussels I bis Regulation states that this instrument only applies to ‘civil and commercial matters’. There is another main prerequisite for its application that cannot be found mentioned in any provision of the Brussels I bis Regulation: it only applies to cases with an ‘international element’. This was something the Court of Justice determined for the first time in its landmark judgment Owusu (C-281/02) . This case has followed other judgments in which Court addressed the ‘international element’. The most recent of these cases is FTI Touristik (C-774/22).
2. The factual background of the case
The roots of FTI Touristik (C-774/22) can be traced to a travel package contract between JX, a German individual domiciled in Nuremberg, and FTI Touristik, a tour operator domiciled in Munich. JX could not reach the trip destination because he did not satisfy the necessary visa requirements. In JX’s view, this would have occurred had FTI Touristik provided him with the necessary information concerning the entry visa requirements. For this reason, JX filed a claim for damages against FTI Touristik before the Local Court of Nuremberg. According to German law, this court would not have jurisdiction to decide on the claim. The only ground for considering this court jurisdictionally competent is the Brussels I bis Regulation. More concretely, Article 18(1) establishes that in consumer claims, jurisdiction lies in the place where the consumer is domiciled.
However, FTI Touristik considered that the Brussels I bis Regulation did not apply to this case, and thus it could serve to establish the jurisdiction. Given that both parties are domiciled in Germany, and that the court seised with the claim is also in that country, the required international element that conditions the applicability of the Brussels I bis Regulation was absent. The only possible international element to be considered would be the trip destination is a third country. Nonetheless, based on the existing German case law at the time, that would not be sufficient to establish the required international element.
Unable to foresee a clear solution, the Local Court of Nuremberg decided to submit the following question to the Court of Justice:
‘Is Article 18(1) of Regulation [No 1215/2012] to be interpreted as meaning that, in addition to providing for international jurisdiction, the rule also concerns a provision on the territorial jurisdiction of national courts in matters relating to a travel contract where both the consumer, as a traveller, and the other party to the contract,
the tour operator[,] have their seat in the same Member State, but the travel destination is situated not in that Member State but abroad (so-called “false internal cases”) with the consequence that the consumer can make contractual claims against the tour operator supplementing national provisions on jurisdiction at the court of his or her place of residence?’
In appearance, the question referred is about whether it is possible to use the Brussels I bis Regulation to determine the territorial jurisdiction in a consumer-related case. Nonetheless, to solve that point, the Court of Justice was required to first clarify whether the international element is present or not, and thus whether the Brussels I bis Regulation applies or not. The core of the Court’s reasoning in the judgment was devoted to such analysis.
3. The Court’s reasoning
The Court of Justice approached the question of the international element from two angles. First, it examined whether the fact that both parties have their domicile in the Member State of the court seised with the claim implied that there is no international element. In this regard, the Court acknowledged that, while the parties’ domicile or habitual residence could serve to establish the international dimension of the case, it is not the only relevant factor (para. 28). Furthermore, the Court refers to Article 18(1) of the Brussels I bis Regulation which expressly states that the special jurisdictional fora for consumers applies ‘regardless of the domicile’ of the nonconsumer party. This means that in a consumer-related claim, both could be domiciled in the Member State. The Court also drew a difference between the cross-border element in the European Order for Payment (‘EOP’), which is exclusively determined by the parties’ domicile, from the international element of the Brussels I bis Regulation which is broader, and other factors can serve to establish it (para. 36).
The second aspect considered by the Court of Justice was whether the trip destination to a third country was or was not sufficient to establish the international element. As AG Emiliou remarked in his Opinion on the case, the trip’s destination is also the place ‘(most of) the services were provided or should have been provided to the traveller’ (para. 43). The place where ‘contractual obligations are supposed to be performed’ can raise issues to establish the jurisdiction. For that reason, the Court found it ‘fulfils the condition of the international element required for the dispute to fall within the scope of Regulation No 1215/2012’ (para. 30). The fact that the trip destination was to a third country and not to a Member State is – according to the Court – irrelevant. What is fundamental for the Court is that the ‘the destination of the trip’ is an ‘easy element to check and making the applicable jurisdictional regime predictable for the parties’ (para. 34).
Having determined that the Brussels I bis Regulation applied to the case, the Court of Justice proceeded to examine whether this could serve to establish the territorial jurisdiction of the court. Here, the Court relies on the literal interpretation of Article 18 that refers to the ‘the courts for the place where the consumer is domiciled’. Since it does not refer to the courts of a ‘Member State’ but rather to the courts of a ‘place’, it seems to establish not only the international but also the territorial jurisdiction. Furthermore, since Article 18 was introduced to protect consumers as weaker parties, this provision also refers to the court that is more easily accessible to consumers, this
being court close to where they live. Therefore, based on the literal and teleological interpretation of Article 18, this provision also provides for the territorial jurisdiction of consumer-related claims.
4. The impact of FTI Touristik on the interpretation of the international element
Overall, the judgment in FTI Touristik (C-774/22) aligns with what the Court of Justice held in previous cases on the international element. It followed the same broad approach towards the notion of the international element that it had adopted before. This was not the first case in which the international dimension depended on an aspect located in a third country. Case C-281/02, Owusu concerned a tort-related claim brought before a British court, in which both parties were domiciled in the United Kingdom, and the tort occurred in Jamaica. For the Court, the location of the tort place in a third country was sufficient to satisfy the international element. Based on this previous judgment, it was unlikely that the Court would have reached a different outcome in the present case. FTI Touristik (C-774/22) added the consumer element.
Perhaps FTI Touristik’s (C-774/22) main contribution is that it established a clear line of separation between the international element of the Brussels I bis Regulation and the narrower ‘cross-border element’ of the EOP. In previous judgments, the Court had used the cross-border element of the EOP to determine the international element of the Brussels I bis Regulation, without expressly indicating the broader scope of the latter (Interplastics (C-267/19 and C-323/19), para. 35). Such an approach was openly criticised by AG Emiliou, who urged ‘the Court to refrain, in the future, from referring to’ the cross-border element of the EOP when assessing the international element of the Brussels I bis Regulation (point 36 of the Opinion).
Compared to the Court’s prior case law on the international element, the judgment in FTI Touristik (C-774/22) might seem quite aseptic. However, from the German perspective, this decision marks a turning point in the long-standing interpretation that some German courts have made of the international element in similar cases to the one in FTI Touristik (C-774/22). For instance, in 2020, the Regional Court of Mainz considered that ‘the international element required for the applicability of the Brussels Regulation is not given if the facts of the case have a different connection to the foreign country, for example if both parties are resident in the same Member State and there is only a foreign connection due to a destination abroad’ (LG Mainz (3. Zivilkammer), Beschluss vom 10.06.2020 – 3 O 105/18). Even while the request for a preliminary ruling in the FTI Touristik case was pending, the Local Court of Ludwigsburg reiterated that the travel destination is not a sufficient international element (AG Ludwigsburg, Prozessurteil vom 27.03.2023 – 7 C 88/23). Thanks to FTI Touristik (C-774/22), German consumers will be better protected under the Brussels I bis Regulation when filing a claim against German travel operators, and the only international element is the travel destination.
Carlos Santaló Goris is Lecturer at the European Institute of Public Administration.
Santaló Goris, C.; “The Court of Justice revisits the ‘International Element’ in the Context of the Brussels I bis Regulation: FTI Touristik (C-774/22)”, EU Law Live, 27/09/2024, https://eulawlive.com/analysis-the-court-of-justice-revisits-the-international-element-in-the-context-of-the-brussels-i-bisregulation-fti-touristik-c%e2%80%91774-22/
SYMPOSIUM
SYMPOSIUM ON THE 2024 REFORM OF THE STATUTE OF THE COURT OF JUSTICE OF THE EU
The
Future
Will Tell. Of course it will, but on what criteria?
Michal Bobek
If there were one theme common to virtually all the contributions appearing in this Symposium, it would be the variously framed proposition that ‘the future will tell’. My personal favourite was the pudding (the proof of the pudding will be in its eating). Indeed, at this stage, even if the text of the amended Statute and Rules of Procedure are already known, there are simply too many factors for anybody to make an advised estimation as to how the new system of division of jurisdiction on preliminary rulings between the Court of Justice (‘the Court’) and the General Court (‘GC’) will actually operate.
The fact that even professionals are not able to tell confirms the degree of discretion and the numerous variables inherent in the freshly designed system, particularly regarding who will ultimately decide a case, as well as when and how that decision will be made. Will a case stay with the Court, or will it be transferred to the GC? Will the GC relinquish its jurisdiction and send the case back to the Court once it opens the case file? Will there be a review of the final decision of the GC in a given case, and of what questions specifically? Beneath or beyond that are the more technical issues of the size of a chamber (not too small, while not too big, so what about an intermediate one?), the Opinion of an Advocate General and/or oral hearing (for settled questions in the areas of established case law?), and a myriad of further procedural considerations.
Concerns about the predictability and certainty of rules on jurisdiction, revealing such a flexibility, could perhaps be dismissed as a mere reflection of the ‘lawful judge’ obsession that is typical of a Continental national judge –an approach that is non-transferable to a supranational jurisdiction. Perhaps rightly so. However, it also exposes a deeper, inherent tension in the proposal itself, which I called ‘transferring without letting go’. I maintain my doubts about the appropriateness of such an institutional and procedural set up for the specific and unique preliminary rulings procedure, though there is no point of rehearsing the argument already offered in (2023) 60 Common Market Law Review 1515.
Moving on, this contribution shall focus on just one point: once the dust has settled, say in 10 years, by what criteria shall ‘the future will tell’ (whether the current reform has been a step in the right direction) be assessed? By that evaluation, I do not refer to the undoubtedly informative judicial statistics that will be submitted by 2 September 2028 under Article 3(2) of Regulation 2024/2019. That will certainly be an interesting read, but may not, at that stage, offer a complete picture. Instead, I refer to the structural and more qualitative impact that the splitting of the preliminary rulings procedure, in the manner just adopted, will have on the procedure itself, its nature and its legitimacy.
Certainly, that discussion could end up becoming somewhat circular, mirroring that already taking place now. To assess whether something was successful or not, there must first be agreement on the intended destination and the
reasons for pursuing it. Equally, one has to agree on the acceptable costs of the expedition. It is especially within respect to the latter – on what constitutes acceptable costs – where views are more likely to diverge.
The primary objective of the reform was outlined in the original proposal of the Court of Justice of November 2022 (p. 3 and 4) and reiterated in the recitals to Regulation 2024/2019: achieving a more ‘equitable’ distribution of docket between the two EU Courts. However, this cannot be the sole criterion for evaluation. If it were, the reform is already a success. Regardless of whether the number will be 80 or 120 cases year, some cases will no doubt be handled by the GC, thereby lightening the Court’s burden. By this measure, mission accomplished.
On the other hand, the yardsticks set by my learned national judicial colleagues, C. Wissels and T. Boekenstein, are not suitable benchmarks either. Although I cannot but agree that national judges would have little objection to a reform that (a) reduces the time to answer a preliminary reference, (b) preserves the consistency of EU law, and (c) maintains the quality of the rulings, fulfilling all three at once is, by definition, unrealistic. Splitting a jurisdiction between two instances (that is, with more persons and institutions involved), with the higher one retaining the ability to review the decisions of the lower one, inherently undermines criterion (b).
Having two instances can hardly be faster than having just one. Moreover, even if no review ever took place, the relative speed of handling a case at the Court has less to do with judicial resources; the greatest amount of time still tends to be spent on the translations of the various documents and interactions with the parties. That time will not be cut, even if the cases are spread across several courts, unless of course there is a corresponding increase in the number of staff, in particular translators. Realistically, therefore, the end result for criterion (a) is likely to be neutral, or with only a minimal overall decrease in time for just one instance, and considerable increase in cases of review.
What the contemplated specialisation at the lower level of the GG might perhaps bring in those specific areas, certainly in the longer run, is (c): the (sectoral) quality. Indeed, VAT aficionados might even be happier talking to other colleagues specialising in the same area. Yet, that again comes with the price tag of overall coherence and consistency of the case law, which simply starts developing differently in other areas.
Thus, while I have considerable sympathy for those criteria, it is only fair to acknowledge that if all three are expected to be met simultaneously, the current reform is, by definition, destined to fail. Through this lens, mission impossible.
Is there a middle ground? Can a ‘reasonable degree’ of uniformity be maintained even with a jurisdiction divided? If the European project is known for anything, it is the art of (an imperfect) compromise. Of course, such a system can work, somehow. It will just be a different kind of uniformity. As already mentioned, it will become sectoral. There might be more uniformity within a given specialised area of law (say VAT), but to the detriment of overall coherence and uniformity across other areas of EU law. Judges specialising in VAT are unlikely to also follow, on a daily basis, cases in environmental or competition law, not to speak of asylum, EAW and judicial cooperation in criminal matters, or even external relations, where similar issues or certainly legal principles might be developed.
That is no reproach, it is simply natural. A national judge dealing with administrative law cases is equally unlikely to have the latest collection of court reports in civil or criminal matters on his or her bedside table, full of sticky notes (or at least I certainly do not).
So, by what criteria could one evaluate the current reform in, say, 10 years? As previously noted, it cannot simply be that ‘the Court offloaded some cases that nobody was particularly fond of’. Nor can we apply the orthodox criteria for evaluating preliminary rulings in one instance, as suggested by my learned national judicial friends. Perhaps, as is often the case, the best approach lies in a compromise: did the reform at least free up some significant resources for the Court without sacrificing too much of the integrity and legitimacy of the preliminary rulings procedure? Three sets of considerations, though by no means exhaustive, could play a role in this evaluation. Admittedly, they are pragmatic, guided by the acknowledgment that the yardstick for a fully ‘unitary’ preliminary rulings procedure cannot be entirely applied here.
First, resources are the stated alfa and omega of the reform and the only structural reason given. If the constant checking, ongoing checking, and re-checking will end up creating more work, it might not be a good way forward. Achieving uniformity in the case law will need to be balanced against the goal of freeing up resources. All eyes will be on the review procedure. How often the ‘review button’ will be pressed will certainly be important, but not the only consideration. The need for review could be mitigated earlier in the process, at the ‘guichet unique’, by ensuring that anything potentially problematic is not referred to the GC in the first place. But that would again defeat the only stated objective of the reform.
The tension between uniformity and available resources will resemble navigating between the metaphorical Scylla and Charybdis, with no clear-cut solutions. Escaping one will mean moving dangerously close to the other. Should the Court really let go and free maximum resources, it will come at the cost of uniformity. Conversely, if a more robust vision of uniformity is maintained, and therefore everything important kept at the Court, or later reviewed, then the entire enterprise will end up costing more in human resources than the reasonably re-adjusted previous system. Certainly, many of those additional resources will likely be clerical and administrative, not strictly speaking judicial. But that might represent a problem of its own.
The repeated mantra that, following the reform, the Court will be engaged only in ‘constitutional’ questions, whereas the ‘technical EU law’ will be for the GC, is a nice slogan, but not a jurisdictional criterion either. Any national system that has introduced Karlsruhe-styled individual constitutional complaint can confirm that there is simply no dividing line between a ‘constitutional question’ and ‘mere law’ in individual cases. The issues are fully transitive, certainly if fundamental rights are thrown into the mix as well. The only real criterion is the will of the ‘constitutional jurisdiction’ to pick up and to deal with a given case. Thus, self-restraint will be the key. But that again comes with costs in terms of uniformity.
Second, a crucial element will be maintaining the nature of the decision on preliminary ruling, which, at least in my view, ought to concern the interpretation of EU law set at a reasonable degree of abstraction (see here or here). It is fair to acknowledge, therefore, that requiring the GC to do something that the Court itself has, in the past,
struggled with might be hypocritical. However, there is also no disguising that the current style of judgments of the GC is, much like any first-instance trial court, rather detailed and concrete. Moreover, a technical area of law, such as VAT, might be rather susceptible to more facts and detailed reasoning, eventually solving the individual case.
Third, it will be vital to maintain the delicate relationship between the Court of Justice of the European Union and the national courts and keeping the latter ones involved in the game. Diffuse dialogue between the Court and national courts meant that anything unresolved by the Court was left for the national courts. Equally, the national courts listened only to (formally) one voice, which they could address directly. Now there will be a third player in the room. Certainly, the institutional and procedural set up adopted so far has been rather clear about that player not being given any independent voice, not to speak of a game of its own. But will that remain the case, particularly if further areas of law will be transferred in the future? Is that even reasonable or feasible?
A lot has been said about the national courts, especially the more senior ones, not being ready to enter in a dialogue with a junior court. I do not see that as an issue arising too frequently. In any case, if a national high court judge feels that she cannot talk to the ‘youngsters’, then she will just include one or two ‘constitutional’ questions in the order for the reference to remain ‘upstairs’. Moreover, I cannot but again agree with the proposition made by C. Wessels and T. Boekenstein: most national judges are likely to be more interested in getting a clear, feasible, and above all final answer within a reasonable period.
The systemic shift might perhaps be more subtle: a privileged dialogue partner will be sent to talk to the ‘deputy’, because it is saying nothing of interest, as certified in each individual case. If, on top of that, there were more frequent opinion differences between both EU Courts in individual cases (back to the review issue), then national courts might, at a certain moment, stop feeling like dialogue partners, who are being assisted in solving concrete cases before them, but more like ‘cannon fodder’ for further development of the law and some abstract disputes happening in Luxembourg.
Finally, more resources available for dwelling on requests for preliminary rulings means more EU judicial centralisation and less space for the national courts themselves. The orthodox visions of a privileged partnership and the principle of attributed powers of the Union could posit that if there are areas of EU law which are ‘sufficiently clear’, owing to established case law of the Court, then all that remains is the application of that guidance by the national courts. What more is there to be developed by a third voice, if that division of powers it to be maintained? Further interpretation of the interpretation already given? Or will there be a third set, beyond or below interpretation and application? A slightly less important interpretation? A more abstract application?
But, as with everything else, the future will certainly tell…
Michal Bobek is president of chamber at the Supreme Administrative Court, the Czech Republic, and Visiting Professor at the Institute for European, International and Comparative Law, University of Vienna Faculty of Law. All views expressed are strictly personal to the author.
SYMPOSIUM
SYMPOSIUM ON THE SELECTION OF EU JUDGES AND THE 255 COMMITTEE
Selecting EU Judges: the Role of the 255 Committee according to the Treaty
Giuliano Amato , Marta Cartabia , Dieter Grimm , Miguel Poiares Maduro, Rui Manuel Moura Ramos & José Luis Da Cruz Vilaça
We are happy to accept the invitation of EU Law Live to engage with the, as usual, powerful and incisive piece written by Joseph Weiler on the role of the 255 Committee. The Court of Justice of the European Union is the fundamental pillar of a European Union founded on the rule of law. Throughout its history, the Court has played a crucial and celebrated role in the development of a Union of law. Even the most controversial decisions, which like any apex court the CJEU has occasionally had to take, have never casted any doubt on the prestige and credibility it has acquired among its peers, both in Europe and beyond. One crucial aspect for that has been the quality and diversity of the members composing the CJEU. The Court has benefited from the quality of the judicial appointments made by the Member States, but also from the diversity in legal traditions and judicial profiles that is embedded in the different legal orders of its Member States. These objectives are inherent in Article 253 TFEU, providing that ‘the Judges and Advocates-General of the Court of Justice shall be chosen from persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are jurisconsults of recognised competence.’
In 2009, the Treaty of Lisbon introduced a panel with the purpose of providing the governments of the Member States advice on the suitability of candidates for membership in the Court, that is to say, whether they meet the requirements imposed by Article 253 TFEU. This panel (usually known as the 255 Committee) constitutes an important safeguard to guarantee that the different national candidates to Member of the CJEU continue to fulfill the qualifications and independence required by the Treaty. It is not a function of this Committee to add additional requirements beyond those set by the Treaty, much less to substitute its own criteria for those of the Treaty or conduct an autonomous selection process as if establishing an EU judicial career. Moreover, were the Committee’s assessment to become an examination or selection process, it would be necessary to provide candidates with the appropriate due process guarantees, particularly in the light of the legal consequences which, de facto, stem from the advice given by the Committee to the national governments.
Thus far, the governments of the Member States have always followed the opinion of the 255 Committee. That is to be supported. We fear, however, that a practice of the Committee may put that cooperation into question. As Professor Weiler observed in his piece, the Committee has gone beyond simply assessing if the candidate fulfills the requirements established by the Treaty to, in practice, imposing a specific profile, based notably on a set number of years of experience. Such further requirements are not in the Treaties. Criteria of that type can (and have been) of assistance to the Committee in determining whether the Treaty requirements are fulfilled by a
candidate. However, they cannot be applied in such a way that effectively creates a new requirement, much less an age requirement or a requirement that is used contrary to the explicit terms of the Treaty. Had these criteria been applied in the past, it would have barred from the Court personalities such as its current President or the former President Gil Carlos Rodríguez Iglesias, along with many other past and present members. Neither the Member State governments nor the EU institutions have been involved in what appears to be the development of criteria for an EU judicial career, rather than the straightforward verification that the candidates put forward by national governments meet the Treaty requirements. Indeed, the nature of the criteria made public in the last report of the Committee, and its practice in applying them, seem to favour the creation of an EU judicial bureaucracy. This is made most obvious by the Committee giving more weight to a short experience in the General Court (the first instance of the CJEU) than to a longer experience in a high court.
That being said, it is not the intention of the current authors to debate the ideal profile for the position of Judge at the CJEU, nor whether age and a specific length of experience should be among the requirements. It is our purpose to protect the criteria of selection enshrined in the Treaty and to raise awareness of the risks posed by the 255 Committee acting ultra vires or infringing upon due process guarantees, by developing and applying requirements that exceed or even contradict those included in the Treaty. What other conclusion can be drawn from the case highlighted by Professor Weiler, when the Committee rejects a candidate because he or she does not have 20 years of experience deemed ‘necessary’ – according to the Committee’s praxis – to fulfill ‘the qualifications for appointment to the highest judicial office in his country’, even though the candidate in question is the actual Vice-President of a Constitutional Court? In such a case, the Committee is simply imposing its own criteria over those of the Treaty. The Committee has excluded in the past other candidates for the same reason – a lack of 20 years of experience– including a case where the national selection was chaired by the President of the Supreme Court of that country (raising at least a presumption of compliance by the candidate with the Treaty requirement of being qualified for appointment to the highest judicial office in that country).
It is hard to know exactly how the Committee has applied its criteria due to the lack of transparency of the entire procedure. This was understandable in the light of the original understanding of the Committee’s role: purely advisory and strictly limited to assess the Treaty requirements to prevent any risk of an egregious nomination by a national government. However, both the practically binding nature of the Committee’s opinion and the expansion of the examination it conducts are, however, at odds with that lack of transparency. As far as can be determined, the Committee has adopted a much stricter use of the 20-year experience criterion, to the extent that it is being applied in direct contradiction to the explicit terms of the Treaty. This poses a severe risk of the Committee overstepping its proper scope of competence, while also raising the likelihood of conflicts with national governments and undermining essential mutual trust with the highest judiciaries of the Member States. Additionally, it is crucial to prevent any potential increase in the number of controversial decisions taken by the Committee from reflecting negatively on the reputation of the CJEU.
The rule of law, which has been a central concern for the EU institutions in recent years, is grounded in the respect for the separation of powers and the limited competence of each body and entity within the European
legal space. It is in this light that we emphasise the vital importance of the Committee (both in its current and future composition) exercising its function strictly as foreseen in the Treaties. Its purpose is to guarantee that the criteria which have served the EU judiciary and legal order so well in the past continue to do so. It is not within its mandate to evolve into a board of judicial selection for the CJEU, which develops its own criteria and a specific profile for an EU judge.
Giuliano Amato is Former President of the Italian Constitutional Court and Former Prime Minister.
Marta Cartabia is Professor at Bocconi University, Former President of the Italian Constitutional Court and Former Minister of Justice
Dieter Grimm is Former Justice of the German Constitutional Court, Emeritus Professor at the Humboldt University, Berlin.
Miguel Poiares Maduro is Professor at the Católica Global School of Law and European University Institute, Former Advocate General at the Court of Justice of the European Union and Former Minister in the Portuguese Government.
Rui Manuel Moura Ramos is Professor at the University of Coimbra Law School, Former President of the Constitutional Court of Portugal and Former Judge at the Court of First Instance of the European Union.
José Luis Da Cruz Vilaça is Former Advocate General and Former Judge at the Court of Justice of the European Union, and Former President of the Court of First Instance of the European Union.
Amato, G., Cartabia, M., Grimm, D., Poiares Maduro, M., Moura Ramos, R.M., da Cruz Vilaça, J.L.: “Selecting EU Judges: the Role of the 255 Committee according to the Treaty”, EU Law Live, 23/09/2024, https://eulawlive.com/op-ed-selecting-eu-judges-the-role-of-the-255-committee-according-to-thetreaty/
Sunlight is the best Disinfectant for EU judicial Selection
Alberto Alemanno
For over 50 years, the members of the Court of Justice have de facto been cherrypicked by their governments, according to their own procedures, and only then nominated by the Council. In the absence of a quality oversight system to assess the suitability of candidates, in line with the qualifications required by Articles 253 and 254 TFEU, Member States had little incentive to oppose nominees from other countries. Unsurprisingly, this has resulted in no formal rejections of candidates under such a system.
The reliance on the informal and widespread ‘old boys’ networks in the selection process has generally worked well. However, this approach was questioned during the last major enlargement (2004), driven mainly by distrust towards the new Member States and the limited number of candidates perceived (back then) as suitable for the job.
As a result, the Treaty of Lisbon established a dedicated panel – generally referred to as the 255 committee –tasked to ‘give an opinion on candidates’ suitability to perform the duties of the Judges and Advocates-General of the Court of Justice (CJ) and the General Court (GC) before the governments of the Member States make the appointments.
Since 2010, the panel has delivered more than 250 opinions concerning the suitability of the candidates put forward by the Member States. When it comes to the candidates proposed for a renewal of their term of office, their opinions have all been favourable (that is over 110). However, when it comes to the candidates for a first term of office, 30 out of the remaining 130 were unfavorable opinions. This is a rejection rate of over 20%.
Despite being merely advisory in nature, the panel’s opinions – whether favourable or otherwise – have, up to now, always been followed by the governments.
Nevertheless, this might be set to change.
A recent string of unfavourable opinions over the suitability of candidates, both to the CJ and the GC, have suddenly exposed to the many the true nature of the 255 committee: an embryonic form of self-governance over the EU judiciary. Those unfavourable opinions have also unveiled the committee’s Achilles heel, that is to say, its lack of transparency and accountability. As Joseph Weiler wittingly remarked: who judges the Judges who judge the Judges?
In the wake of these controversial opinions, the rationale behind the committee’s creation is suddenly flipped. It is now the 255 Committee – not the governamental choices of judicial appointees – that suddenly draws suspicion.
As argued in tempore non suspecto, this is because – despite the profound transformative effects the committee’s opinions have been having on judicial selection – they remain a ‘black-box’. Neither their input (candidates’ CVs, records of the national procedure, etc.) nor their output (panel’s opinion) are public. It should come as no surprise that, in those circumstances, the committee’s function raises important, yet largely neglected, questions of democratic accountability, legality and, ultimately, legitimacy.
Since its inception, the committee has interpreted its mandate extensively to the point of continously reinterpreting the Treaty. Since 2011, it has not hesitated in harmonising not only the national selection procedures (e.g. by requiring the publication of open calls for application to the judicial posts), but also the criteria candidates must satisfy. In its very 1st Annual Activity report, the committee acknowledged that ‘[a]lthough the criteria established by the Treaty on the Functioning of the European Union are exhaustive, the panel nevertheless considers that they could be more clearly and precisely explained.’ In the same report, the panel enumerated six considerations, including ‘language skills’ and ‘aptitude for working as part of a team in an international environment in which several legal systems are represented’, that do not appear in any form in the text of the TFEU or in the panel’s operating rules. The panel has considered the ‘language skill’ category to include ‘the ability to acquire proficiency, within a reasonable time, in the working language of the European courts.’ Yet the panel never described how it measures a nominee’s ability to acquire proficiency in French, nor has it provided any reference to a ‘reasonable’ amount of time. States may overcompensate and simply nominate those fluent in French, which is however not a requirement foreseen by the Treaty.
The 7th Activity Report (section III) of the committee codified yet another additional and more cumbersome criterion. This introduced a minimum qualification requirement of ‘at least 20 years’ of experience of high-level duties for candidates to the CJ, and ‘no less than 12 or even 15 years’ of experience of similar duties for the office of the judge of the GC’. While formulated as a presumption, this self-imposed requirement departs from what the Treaty foresees (‘qualifications required for appointment to the highest judicial offices in their respective countries or who are jurisconsults of recognised competence’), by putting a common number applicable to all EU Member States and that regardless of their different traditions and norms. It appears that it is the application of such a novel criterion that led the committee to deliver three consecutive unfavourable opinions.
Yet, due to the current lack of publicity of the relevant opinion, it is hard to know exactly what reasons led the Committee to deliver an unfavourable opinion and whether and how such a criterion – or others – have been applied.
This is because the 255 Committee has consistently maintained that, as its opinions are ‘intended exclusively for the Member State governments’, they must remain confidential. As a result, it concluded that ‘the positions it takes on the suitability of candidates for judicial office at European Union level may not be disclosed to the public, either directly or indirectly’ (6th Activity Report, p. 16).
A quest for transparency and accountability in EU judicial selection
In 2016, unpersuaded and deeply concerned about the blurred line between expertise checking and opinion checking in the suitability assessment, I had the chance to file a request for access – together with my students of the time – to all opinions delivered by the committee before the Council. In that request, we argued that the confidential nature of the committee’s opinions is not only legally unsound but also deeply problematic from a public policy perspective.
Traditionally, three major arguments are invoked to refuse third-party access to the panel’s opinions: (i) candidate privacy and data protection, (ii) safeguarding reputation, and (iii) the potential chilling effect on future nominations. All three justifications were used to reject our request, as well as the complaint we subsequently filed with the EU Ombudsman for alleged maladministration.
Let’s briefly unpack these arguments.
The privacy of the candidates and data protection
The argument that disclosing candidates’ identities violates their privacy is unconvincing in this Internet age. All candidates are – by definition – public figures and their identity is disclosed when they are designated by their own country. More important, as highlighted by the most recent three consecutive unfavourable initiatives examined by the present symposium, the private nature of the proceedings has not shielded unsuccessful candidates from public exposure. It is relatively easy to trace unsuccessful candidates online. Scholars have also identified Member States that have proposed candidates who received negative opinions. As a result, the Council bases its central privacy argument on protecting personal information that is already public. Ironically, the only information it effectively shields through non-disclosure of the panel opinions is a transparent, detailed understanding of the panel’s selection process.
The reputation of the candidates
The major argument invoked by the panel to oppose public access to their output is the need of protecting the reputation of candidates pro futuro. This suggests that the integrity of the candidates could be put at stake should their opinions be rendered public and this even in the case of subsequent appointment of the candidate in question. However, the argument does not hold when considered in the context of the current selection practice. As illustrated by the most recent unfavourable opinions, the current confidentiality policy does not only fall short of protecting the candidates’ reputation but – by denying access to the reasons leading to the panel’s opinions – it also threatens it, as it does threaten the legitimacy of the panel and, paradoxically, the very same reputation of its own members.
Let’s unpack the alleged reputational effects stemming from the current non-disclosure policy of the committee’s opinions. First, while the reasons leading to an unfavourable opinion remain confidential, both the identity of the candidate and the outcome of the panel’s opinion are publicly known. This is because the public announcement
of a candidate’s designation by the relevant Member State, often reported in the media, and by her/his nonconfirmation, automatically suggests that something went wrong. In other words, it is easy to deduce from the current selection system whether a given candidate has received a favourable or unfavourable opinion. Therefore, since the current policy only manages to conceal the reasons behind an unfavourable opinion, but not the identity of the candidate, it fails to fully protect the reputation of the candidates. But the issue goes even deeper.
Second, as the first decade of the panel’s operation has shown, when the identity of a ‘failed candidate’ is widely known but the reasons for the failure remain undisclosed, it encourages gossip. By withholding the reasons behind the unfavourable assessment from the public, the actual confidentiality policy invites speculation, chattering, and even manipulation. Virtually no observer belonging to the EU legal epistemic community – who is by nature the most merciless in judging the candidate and prone to speculating about the reasons for her/his failure – is currently unaware of the outcome and presumed reasons that have led to a negative opinion. One may therefore contend that the current policy seems more effective in shielding the panel from public scrutiny than on protecting the reputation of the candidates.
As I had the chance to argue in the past, the legitimacy of a judge increases, rather than decreases, if the public is aware of the reasons why that judge was appointed or not. Thus, disclosing the opinion of the panels would increase the perception of personal integrity of the judge and, as a result, of the jurisdiction to which he or she belongs. This increases the democratic legitimacy of the courts and does not necessarily harm – but rather protect – the rejected candidate. It has been shown that, in countries in which judicial candidates for the highest court are confirmed by a public hearing (such as the United States), disclosing the reasons for which a candidate was confirmed or rejected can increase both the independence and legitimacy of a court in the eyes of the public, without harming the reputation of rejected candidates, who were largely rejected based on legitimate factors such as partisanship, political philosophy, or insufficient experience. This is in keeping with the fact that judges are beholden to internal and external pressures and must uphold a strong judicial reputation both within the judiciary and outside of it. It has been shown repeatedly that these pressures are essential to the functioning and overall reputation of courts.
When considering the inevitable repercussions stemming from a negative opinion on the candidate’s reputation, we should not forget the limited scope and intensity of the review exercised by both panels upon the choice of the candidates. As stated by Jean-Marc Sauvé in a chapter discussing judicial appointments, in the case of an unfavourable opinion motivated by limited expertise, ‘similar lack of knowledge undermines in no way the ability of the candidates to hold their office, often a prominent one, on the national level; it is just does not recommend them, in the eyes of the Panel, to be appointed to the office for which they applied’. And yet virtually all candidates expecting to receive an unfavourable opinion have rather preferred to withdraw from the selection process – in an effort at mitigating the negative consequences stemming from that opinion – which as a matter of fact may not be circulated to all governments but in principle only to that of the candidate’s.
Finally, yet importantly, the lack of transparency around the panel’s motivation behind its opinion also threatens the panel’s legitimacy vis-à-vis the specialised legal community, and beyond that. Paradoxically, it affects the reputation of the committee’s members who are instead committed to protect that of the candidates they have negatively assessed.
The potential chilling effect on future candidatures
The final, related argument that is often invoked to justify the policy of limited disclosure pursued by both panels has to do with the concern that publicity would discourage further candidatures for the judicial jobs. It is believed that more openness might lead to a domino effect whereby potential candidates would be dissuaded from allowing their name to go forward. However, due to the limited confidentiality ensured by the current system, some risk of a chilling effect is inherent to any form of ‘quality review’ whose mission is to exercise external scrutiny on governmental choice, all the more so if this is as untransparent and unpredictable as that being currently performed by the 255 Committee. The former President of the GC contended that the procedure was already threatening to put off prospective candidates who may either fear a negative result or believe the whole scheme violates their dignity.
Fast forward 13 years and this scenario is at play right now. At least three candidates to the CJ, whose identity and record of accomplishments is well known and is recognised as complying with the Treaty requirements, appear to have received an unfavourable opinion.
Transparency as a recipe for effectiveness, legitimacy and accountability of judicial selection
In these circumstances, all the arguments that have traditionally been invoked to justify its non-publicity policy appear refuted: the identity of the individual candidates appears to have been disclosed anyway; the candidates’ reputation is at stake as in the absence of publicity of the reasons justifying that decision they cannot defend themselves, instead being the object of speculation; and, future candidates might be chilled in being nominated due to the lack of predictability characterising the 255 Committee’s untransparent oversight.
Ironically, had the committee taken the original critique of its opaque policy more seriously at the time of its inception, it would now be in a stronger position to defend not only the reputation of candidate members – whom it claims to protect – but also that of its own members. Ultimately, by reconsidering the balance to be struck between the imperative of transparency and the candidates’ privacy concerns and adopting a more transparent publicity policy, the committee could have prevented the legitimacy of the entire judicial oversight system from being questioned.
The case for enhancing the transparency of the operation of the 255 Committee to legitimise both its process and outcome has never been more evident.
This is what prompted me to file yet another access request – this time to all unfavourable opinions formulated over the past two years – to encourage both the 255 Committee and the Council to reconsider their publicity policy.
Ultimately, it is not only legally possible but also in line with societal expectations for the advisory committee to gradually shift the balance away from privacy concerns towards more openness both during and after the selection process.
This would allow the 255 committee to address the significant democratic legitimacy and accountability concerns raised by its operation and help it discharge its final mission: to strengthen the authority of the CJEU by facilitating the acceptance of their rulings in the eyes of the public.
Alberto Alemanno is Jean Monnet Professor of European Union Law at the École des Hautes Études Commerciales (HEC) Paris and Visiting Professor at the College of Europe in Bruges. He is also the founder of The Good Lobby, a nonprofit committed to enhance the advocacy capacity of civil society organisations within and across the EU.
SUGGESTED CITATION: Alemanno, A.; “Sunlight is the best Disinfectant for EU judicial Selection”, EU Law Live, 25/09/2024, https://eulawlive. com/op-ed-sunlight-is-the-best-disinfectant-for-eu-judicial-selection/
On the autonomous EU Concept of Suitability under Article 255 TFEU
François-Xavier Millet
The Article 255 panel was established by the Lisbon Treaty to ‘give an opinion on candidates’ suitability to perform the duties of Judge and Advocate-General of the Court of Justice and the General Court before the government of the Member States make the appointments’. That panel’s role is undoubtedly crucial in view of the wide jurisdiction and authority now enjoyed by the CJEU, which may, in the name of fundamental rights, integration or the rule of law, condemn Member States for their infringements of EU law or quash legislative acts adopted by EU institutions. The panel’s role is all the more important in the context of a court whose members –with the exception of the rotating Advocates-General (AGs) – are renewable. Once appointed, CJEU members de facto enjoy an irrebuttable presumption of suitability for the job since the Article 255 panel has never issued negative opinions for the renewal of a member. That presumption allows them to stay in office for numerous years, if not decades, as long as they do not fall out of favour with the authorities of their own Member State. Accordingly, it appears paramount to get it right upon first appointment through a rigorous selection procedure which guarantees that only the suitable nominees of a Member State may make it to the most powerful judicial positions in Europe.
Before the Lisbon Treaty, it was solely for the governments of the Member States to decide by common accord who was to be a member of the CJEU. The selection procedure was thus intergovernmental and diplomatic. Back then, there was a single two-tier requirement for Judges and AGs to be chosen. The nominees had to be a person ‘whose independence is beyond doubt’ and ‘who possess[ed] the qualifications required for appointment to the highest judicial offices in their respective countries or who [were] jurisconsults of recognised competence’. That requirement, which is still to be found in Article 253 TFEU for the Court of Justice – and, with a slightly different phrasing, in Article 254 TFEU for the General Court – was for the Member States alone to evaluate, with no oversight whatsoever at EU level.
In 2009, the Member States themselves appear to have taken the view that the nomination of CJEU members was too serious a matter to be decided in a purely intergovernmental fashion and that some degree of supranationality should be included within the selection process in the form of a panel entrusted with the task of examining the suitability of the candidates put forward by those Member States to occupy the position of Judge or AG at the CJEU. What does such an open-ended mission provided for by Article 255 TFEU specifically entail as regards the panel’s role and prerogatives? Is the panel to limit itself to monitoring whether the proposed candidate meets the requirement of Article 253 TFEU; or can the panel go beyond that and itself establish further assessment criteria? As with so many EU law issues, there are two main types of answers to these questions: a Member-Stateminded answer and a supranational, EU-minded answer.
It is indeed possible to contemplate several interpretations as to the exact role of the Article 255 panel within the selection procedure of CJEU Judges and AGs. A first option, highly reminiscent of the pre-Lisbon intergovernmental method, is to consider that, because it is still formally a matter for the Member States to decide, with – regrettably – no possible judicial review of the appointment by the CJEU (see Sharpston (C-684/20 P) ), the Article 255 panel should display a high degree of deference towards the nominees put forward by a Member State. The panel’s opinion would thus be limited to examining whether the proposed candidate fulfils the two-tier requirement of Articles 253 TFEU, with no discretion to set further autonomous evaluation criteria. That power would be even more curtailed if the national selection procedure was carried out in an open, fair, democratic and transparent manner. In such a scenario, the suitability of the nominee would then be presumed and the work of the panel would be merely to rubberstamp the Member State’s proposal.
For the past fifteen years, since its creation, the Article 255 panel has operated in a rather different way. It has indeed set its own criteria for the purposes of assessing the suitability of the Member States’ nominees. Such an approach is hardly surprising for anyone familiar with the very logic of EU integration and the classic methods of interpretation of EU law: literal, contextual and teleological.
As a new provision introduced by the Treaty, Article 255 TFEU is to be interpreted separately from the earlier Articles 253 and 254 TFEU. The panel is not merely vested with checking whether the latter’s requirements are respected. Its role is broader inasmuch as it consists in examining the candidates’ suitability, with no further specification. Suitability is just yet another autonomous concept of EU law. Accordingly, it is natural that the Article 255 panel gives flesh to that concept by defining suitability criteria that are distinct from the requirements of Article 253 TFEU.
Article 255 TFEU was introduced to reinforce checks on the Member States with regard to judicial appointments with the view to avoiding candidates that would not be suitable for the job for reasons beyond the lack of independence or sufficient qualifications. Being a Judge or an Advocate-General at the CJEU requires specific skills and a specific set of knowledge other than those acquired as a result of being a judge in one’s own Member State. Through the open-ended Article 255 TFEU, the Lisbon Treaty granted the panel the necessary legal authority to establish its own, self-standing criteria and to evaluate whether a candidate fulfils them. It is actually somewhat reassuring that, for such positions of power in the EU, the selection procedure is thus truly hybrid and involves both the Member States and an EU body to ensure not only the procedural but also the substantive legitimacy of appointments. While the increasing use by the Member States of an open, transparent and democratic application process certainly confers a high degree of procedural legitimacy to the incumbent, the latter’s authority also greatly benefits from the substantive legitimacy that flows from those suitability criteria autonomously defined at EU level.
Of course, it is clearly possible to engage in a discussion on the suitability criteria to be employed. In an ideal world, those criteria should ensure a wide range of profiles represented at the CJEU, in particular diversity of age, gender, background and approaches to law. While the selection procedure for judicial appointments to the
European Court of Human Rights – may cater for that and could therefore be an inspiration, that is however not the case for the CJEU: the Article 255 panel is not to pick a candidate from a list but merely to issue an opinion on the suitability of one person. The panel has accordingly little leeway in practice to define the suitability criteria. The latter must be tailored to the qualities that can be expected from a member of the CJEU. In that respect, the criteria that have been devised by the panel appear rather sensible. In particular, a fair command of languages and of EU law is not only suitable, but it is also necessary for a candidate to the position of Judge or AG at the CJEU. It is then for the panel to set the threshold as to what fair command means in practice. Judging from its activity reports, the Article 255 panel does not seem to be unreasonable in its assessment thereof inasmuch as it does not expect full proficiency in French, nor a thorough knowledge of every single field of EU law. It also appears reasonable by evaluating the various suitability criteria not individually but in the whole.
Among those criteria, the highly contested criterion relating to the nature and, above all, length of prior professional experience calls for greater exploration here. Admittedly, prior professional experience has been wrongly presented by the panel in its activity reports as a condition to establish whether a candidate has the sufficient qualifications for a judicial position within the meaning of Article 253 TFEU. This articulation of the requirement lacks precision. A candidate who is carrying out judicial functions at the highest level nationally already should obviously be considered as possessing ‘the qualifications required for appointment to the highest judicial offices’. However, the purposes (or perhaps more so the consequences) of the prior professional experience criterion are different, yet equally relevant. First, it guarantees that the candidate has sufficient experience of the law, in the capacity of an academic, a judge, a lawyer or a senior legal officer to become fully acquainted with the subtleties of legal reasoning. Second, it may also be seen as securing the nomination of someone wiser in the ways of the world and more prone to collegiality. Third, it is not illegitimate to consider that being a member of a supranational court would constitute the peak of a professionally experienced person’s career.
Regarding specifically the length of that prior professional experience, setting it at 20 years for the Court of Justice and 12 to 15 for the General Court – figures that were there from the beginning in the panel’s activity reports – may seem slightly arbitrary. On the one hand, it is perhaps a bit too high in so far as it may prevent the arrival of younger profiles that may bring with them innovation and views more in tune with contemporary societal trends. On the other hand, it is advantageous in any selection procedure to have an objective criterion when the other criteria may be open to the criticism of being subjective. It also presents the advantage of avoiding the nomination of a person who might remain in office for decades, which is arguably not ideal for any position of power and raises another problematic issue that should also be part of this discussion, namely that of the CJEU members’ unlimited renewability.
In any event, the Article 255 panel has made it clear that it is possible to override the prior professional experience condition if the candidate shows ‘exceptional legal capabilities’, which refers back to the other substantive suitability criteria. Arguably, excellent knowledge of EU law in particular is then required. It is again for the panel to set the threshold of what is ‘exceptional’. Although that threshold seems slightly higher nowadays, it did not prevent some current or past young members of the CJEU from receiving a positive opinion from the panel.
Finally, there is a last issue which reflects another debate that EU scholars are familiar with when it comes to EU law. It is the issue of the legitimacy of the Article 255 panel itself, in connection with the lack of transparency. Over the past fifteen years, the Article 255 panel has acquired a kind of customary authority from the very fact that the Member States’ governments have never nominated a person in respect of whom the panel has issued a negative opinion while the latter’s is not binding. In so doing, the Member States themselves have recognised the legitimacy of that panel as an essential component of the selection procedure of Judges and AGs. However, at the same time, the Article 255 panel is, of its own doing, easily open to criticism given that it works behind closed doors and there is an absence of publicity of the individual opinions issued by the panel. The present symposium showcases the importance of publishing those opinions (and perhaps even broadcasting the candidates’ hearings, as happens for candidates to the US Supreme Court or to the European Commission) so that not only the candidate, but also the public, can take cognisance of all the precise reasons that led the panel to issue its opinion, be that negative or positive. ‘Justice must not only be done; it must also be seen to be done’. That aphorism also applies, for its own sake, to the Article 255 panel.
François-Xavier Millet is Professor of Law (University of the French West Indies) and Jean Monnet Chair on Comparative Regional Integration.
Millet, F.; “On the autonomous EU Concept of Suitability under Article 255 TFEU”, EU Law Live, 27/09/2024, https://eulawlive.com/op-ed-on-theautonomous-eu-concept-of-suitability-under-article-255-tfeu/
THE LONG READ
The Court of Justice’s Judgment in Google Shopping: Between Principles and Pragmatismg
Justin Lindeboom & Vaszília Bartošová 1
Introduction
After 14 years, the Google Shopping antitrust case finally came to an end on 10 September 2024, when the Grand Chamber of the Court of Justice (the ‘Court of Justice’) dismissed Google’s appeal in full.2 The Court of Justice’s judgment not only confirmed the lawfulness of the Commission’s prohibition decision and the EUR 2.4 billion fine, but also clarified a number of core principles and rules of the prohibition of abuse of a dominant position in Article 102 TFEU. The Court confirmed the limited applicability of the strict Bronner criteria which apply to a refusal by a dominant undertaking to deal with another party, clarified under what circumstances preferential treatment of a dominant undertaking’s own products is abusive, and emphasised that Article 102 TFEU does not require competition authorities to prove, in all cases, that competitors just as efficient as the dominant undertaking are pushed off the market. For these reasons, the Grand Chamber’s judgment is a landmark case that will shape the future enforcement of Article 102 TFEU.
The facts of the case are essentially as follows. Google’s search engine displays search results in two distinct ways. First, the general search results are generated by Google’s general search algorithms and are characterised by blue text links. Second, there are so-called specialised search results, which appear among others alongside general results but are more prominently displayed. Google developed several specialised search results including for news, flights and shopping. More specifically, in 2002 Google started offering a comparison shopping service, which it included on its general search page from 2003 onwards. This comparison shopping service consists of boxes, displayed above and alongside general search results, with pictures of products, their prices and links to the websites of sellers. While Google’s comparison shopping services service is prominently displayed, competing comparison shopping services such as Kelkoo and Twenga can only appear in the general search results. Adjustments to Google’s general search algorithm, moreover, demoted alternate comparison shopping services, making them even less visible in general search results.3
In 2010, the European Commission started an investigation that ultimately resulted in its 2017 prohibition decision that imposed a EUR 2.4 billion fine on Google for abusing its dominant position in the market for general search engine services by favouring its own comparison shopping services over competing comparison shopping
1. Justin Lindeboom is Associate Professor of Law at the University of Groningen. Vaszília Bartošová is Graduate Student and Research Assistant at the University of Groningen.
2. Judgment of the Court of Justice of 10 September 2024, Google and Alphabet v. Commission (Google Shopping) (C-48/22, EU:C:2024:726).
3. Judgment of the Court of Justice, Google Shopping, paras. 4–13, 24.
services.4 The Commission’s decision led to a wide-ranging academic debate on whether the Commission’s theory of harm to competition was economically sound, and whether it was allowed to qualify as abusive a type of conduct that, as such, had not been subject of a previous antitrust case.
In November 2021, the General Court upheld the Commission’s decision and ruled that the Commission was allowed to legally qualify Google’s self-favouring conduct as abuse of a dominant position, even though the decision was based on a novel theory of harm to competition.5
In this Long-Read, we first explain the main findings of the Court of Justice’s judgment in regard to the four grounds of appeal that Google had put forward, which focused on the questions of (1) whether the so-called Bronner criteria should apply to self-favouring conduct; (2) whether and when self-favouring deviates from ‘competition on the merits’; (3) whether a so-called ‘counterfactual analysis’ is always necessary in abuse cases; and (4) whether the Commission was required to conduct an ‘as-efficient competitor test’.
We then analyse some of the core aspects of the judgment and their implications for the enforcement of competition law against self-favouring conduct.
We argue, firstly, that the Court was legally and economically right to distinguish Google’s conduct from a socalled ‘refusal to deal’ which, following the landmark Bronner judgment, can only constitute an abuse in exceptional circumstances.
Second, the Court clarified how self-favouring conduct by dominant undertakings may deviate from ‘competition on the merits’. It provided a number of useful guidelines on how to distinguish ‘competition on the merits’ from anti-competitive conduct, which allow for a sufficient degree of flexibility for the Commission to craft novel theories of harm, without jeopardising effective judicial review.
Third, we claim that the judgment offers useful guidance on the goals of Article 102 TFEU and the limited relevance of the ‘as-efficient competitor principle’ in abuse cases. However, the judgment includes some confusing passages on the principles underlying Article 102 TFEU, in particular on the question of when the Commission is required to show that the conduct excludes equally efficient competitors.
Finally, we offer some brief concluding reflections on the legacy of the 14-year long Google Shopping saga, and its relationship to the newly adopted Digital Markets Act.
The Judgment of the Court of Justice
The applicability of the Bronner criteria
In Bronner, the Court of Justice held that the refusal by a dominant undertaking to start dealing with another undertaking can only constitute abuse in exceptional circumstances because competition law enforcement would
4. Commission Decision of 27 June 2017, Google Search (Shopping) (case AT.39740, COM (2017) 4444 final), points 1–2.
5. Judgment of the General Court of 10 November 2021, Google and Alphabet v. Commission (Google Shopping) (T- 612/17 EU:T:2021:763).
interfere with the freedom of contract and the right to property.6 Accordingly, a refusal to deal only constitute abuse if access to the service of the dominant undertaking is ‘indispensable’ for the other undertaking to carry on its business.
The General Court in Google Shopping concluded that the Bronner criteria were not applicable to this case.7 It held that the Bronner criteria only apply when an undertaking expressly requests access to the dominant undertaking’s facility and that access is subsequently refused. By contrast, Google did not refuse access to its search results page, but rather actively acted to favour its own comparison shopping service over those of its competitors.8
On appeal, Google claimed among others that the Bronner criteria should apply whenever the dominant undertaking retains an asset for its own benefit, and that in this case the competing comparison shopping services requested access specifically to Google’s specialised search results boxes, not its search results page in general.9
The Court of Justice rejected this ground of appeal and confirmed that the allegedly anticompetitive conduct was essentially not about granting access but rather concerned the combination of two discriminatory practices: ‘(i) the more favourable positioning and display of Google’s own specialised results within its general results pages [and] (ii) the simultaneous demotion of results from competing comparison shopping services by the application of adjustment algorithms’.10 The Bronner criteria must be limited to situations in which the dominant undertaking refuses access altogether. In that situation a finding of abuse will force the dominant undertaking to conclude a contract with a competitor, which justifies the strict indispensability criterion.11 Since Google had already granted competing comparison shopping services access to its search results page, a finding of abuse does not interfere with Google’s freedom of contract and right to property, and the Bronner criteria do not apply here.12
The legal test for self-favouring and ‘competition on the merits’
Before Google Shopping, it was unclear to what extent self-favouring by a dominant undertaking could amount to abuse.13 The General Court had held in this regard that the Commission was allowed to classify Google’s conduct as deviating from competition on the merits in light of three factual circumstances: (i) the importance of traffic generated by Google’s general search engine for comparison shopping services; (ii) the behaviour of users when searching online; and (iii) the fact that diverted traffic from Google’s general results pages accounted for a large proportion of traffic to competing comparison shopping services and could not be effectively replaced by other sources.14
6. Judgment of the Court of Justice of 26 November 1998, Oscar Bronner v Mediaprint Zeitungs- und Zeitschriftenverlag (C-7/97, EU:C:1998:569, paras 39–41).
7. Judgment of the General Court, Google Shopping, paras 229–247.
8. Judgment of the General Court, Google Shopping, paras 237–241.
9. Judgment of the Court of Justice, Google Shopping, paras 70–72.
10. Judgment of the Court of Justice, Google Shopping, para 97.
11. Judgment of the Court of Justice, Google Shopping, para 90–91.
12. Judgment of the Court of Justice, Google Shopping, paras 111–112.
13. See e.g. Pablo Ibáñez Colomo, ‘Self-Preferencing: Yet Another Epithet in Need of Limiting Principles’, World Competition 43, 2020, pp. 417–446.
14. Judgment of the General Court, Google Shopping, paras 169–173.
Google claimed on appeal that the General Court unlawfully had held that these three circumstances sufficed to conclude that Google did not compete on the merits.15
The Court of Justice rejected this ground of appeal and provided, to this effect, additional clarification on what is required of the Commission to demonstrate that the conduct of the dominant undertaking, firstly, deviates from competition on the merits and, secondly, has at least potential anti-competitive effects.
First, the Court repeated the so-called ‘as-efficient competitor principle’, according to which ‘it is not the purpose of Article 102 TFEU to […] ensure that competitors less efficient than an undertaking in such a position should remain on the market’ because ‘competition on the merits may, by definition, lead to the departure from the market or the marginalisation of competitors which are less efficient and so less attractive to consumers from the point of view of, among other things, price, choice, quality or innovation’.16
Accordingly, competition on the merits means that competitors compete on particular relevant markets on the basis of the merits of their own products or services. Following up on this principle, the Court recalled that the Commission is required, ‘as a rule’, to demonstrate that the conduct deviates from competition on the merits and has the potential effect of excluding equally efficient competitors.17
However, the Court immediately added that conduct can also be abusive if it impedes potentially competing undertakings at an earlier stage from entering the market. Even if those (potential) competitors are not (yet) equally efficient, the dominant undertaking may not exclude them by ‘the placing of obstacles to entry or the use of other blocking measures or other means different from those which govern competition on the merits’.18 In doing so, the Court expressly limited the scope of applicability of the ‘as-efficient competitor principle’. This finding is confirmed in paragraph 264, where the Court emphasised that the Commission is not always required to demonstrate that the allegedly abusive conduct is capable of excluding an as-efficient competitor.19
In both cases, the Commission is required to take into account ‘all the relevant factual circumstances’, which include the conduct of the dominant undertaking but also ‘the market(s) in question or the functioning of competition on that or those market(s)’.20
As applied to this case, the Court held that the Commission had rightly concluded, on the basis of the three factual circumstances mentioned above, that Google’s conduct excluded competing comparison shopping services by leveraging its dominance in the market for general search services.21 In other words, Google did not compete
15. Judgment of the Court of Justice, Google Shopping, para 124.
16. Judgment of the Court of Justice, Google Shopping, para 164.
17. Judgment of the Court of Justice, Google Shopping, para 165.
18. Judgment of the Court of Justice, Google Shopping, para 167.
19. Judgment of the Court of Justice, Google Shopping, para 264.
20. Judgment of the Court of Justice, Google Shopping, paras 166, 168.
21. Judgment of the Court of Justice, Google Shopping, para 172.
with other comparison shopping services on the basis of the merits of its own comparison shopping service, but made use of its dominance in the general search engine services market to exclude its competitors.22
The causal link requirement and the role of a ‘counterfactual analysis’
By its third ground of appeal, Google essentially argued that the Commission was required to conduct a so-called ‘counterfactual analysis’ – i.e. a comparison between the actual market circumstances including the allegedly abusive conduct and a hypothetical scenario in which the conduct did not take place but market circumstances were otherwise identical – in order to prove that the actual or potential anti-competitive effects were really caused by the conduct.23 The General Court had concluded that the Commission was not required to conduct a full counterfactual analysis, which amounts to proving actual effects, but must merely establish that the conduct in question causes potential anti-competitive effects.24
The Court of Justice observed as a matter of principle that there must be a causal link between the conduct at issue and its effects.25 The Commission can meet this causal link requirement by relying on ‘information obtained by observation of the actual evolution of the market’ and, if a correlation between the conduct and the competitive situation on the market is observed, additional information such as assessments of market participants. Based on such data, the Commission can establish a causal link between conduct and anti-competitive effects.26 It is for the dominant undertaking to challenge the Commission’s assessment of the potential or actual effects of the conduct by, for example, putting forward a counterfactual scenario.27 The Commission is therefore not required, in all cases and out of its own motion, to conduct a comprehensive comparison between actual market circumstances and a hypothetical ceteris paribus scenario.
The ‘as-effective competitor test’
Google’s fourth ground of appeal challenged the General Court’s claim that the Commission is not always required to conduct a so-called ‘as-efficient competitor test’ to establish an abuse.28 This test is a specific, narrower application of the ‘as-efficient competitor principle’, and essentially involves a quantitative assessment of whether a hypothetical competitor that is just as efficient as the dominant undertaking could charge, without making a loss, its consumers the same prices as those charged by the dominant undertaking.29 The General Court held that this test was inappropriate for assessing non-price-based conduct such as self-favouring.30 Additionally, the
22. Judgment of the Court of Justice, Google Shopping, para 171.
23. Judgment of the Court of Justice, Google Shopping, para 212.
24. Judgment of the General Court, Google Shopping, paras 377–378.
25. Judgment of the Court of Justice, Google Shopping, para 224.
26. Judgment of the Court of Justice, Google Shopping, para 225.
27. Judgment of the Court of Justice, Google Shopping, paras 227–228.
28. Judgment of the General Court, Google Shopping, paras 538–539.
29. Germain Gaudin and Despoina Mantzari, ‘Google Shopping and the As-Efficient-Competitor Test: Taking Stock and Looking Ahead’, Journal of European Competition Law & Practice 13, 2022, pp. 125–135, p. 128.
30. Judgment of the General Court, Google Shopping, paras 538–539.
General Court observed that it would be impossible to analyse the relative efficiency of competitors in a market where competition is already distorted.31
Google argued on appeal that the General Court had made a legal error by not requiring the Commission to prove that the difficulties of Google’s competitors in attracting user traffic were not due to their own inefficiency.32 Google relied in this regard on the abovementioned principle that Article 102 TFEU does not aim to protect less efficient competitors.33
The Court of Justice, however, ruled that although the objective of Article 102 TFEU is not to ensure that less efficient competitors remain on the market, ‘it does not follow that any finding of an infringement under that provision is subject to proof that the conduct concerned is capable of excluding an as-efficient competitor’.34
The Court clarified this somewhat puzzling contrast by noting that the assessment of whether the conduct is capable of foreclosing an as-efficient competitor, ‘appears, in particular, to be relevant, where the dominant undertaking submitted, during the administrative procedure, on the basis of supporting evidence, that its conduct was not capable of restricting competition and, in particular, of producing the alleged foreclosure effects’.35 In that case, the Commission is ‘required to assess the possible existence of a strategy aiming to exclude competitors that are at least as efficient as the dominant undertaking from the market’.36 More generally, the Commission could be required to apply an as-efficient competitor test ‘where that test is relevant’.37
As applied to this case, the Court held that the Commission lawfully found that the competing comparison shopping services were not able to compensate for Google’s self-favouring of its own service.38 The Court concluded by noting that Google had only made ‘allegations in principle’ and that the General Court was right to state that it was not possible for the Commission to obtain objective and reliable information about the efficiency of Google’s competitors, mostly because market conditions were already substantially distorted by the presence of a (highly) dominant undertaking.39
The Bronner criteria and the effective enforcement of Article 102 TFEU
The first notable contribution of the Google Shopping judgment is the Grand Chamber’s unequivocal statement that the Bronner criteria do not apply to self-favouring and, more generally, situations in which the dominant undertaking has already granted access to its own infrastructure. This finding is fully in line with the Court’s
31. Judgment of the General Court, Google Shopping, paras 540–541.
32. Judgment of the Court of Justice, Google Shopping, para 252.
33. Judgment of the Court of Justice, Google Shopping, para 253.
34. Judgment of the Court of Justice, Google Shopping, para 264.
35. Judgment of the Court of Justice, Google Shopping, para 265.
36. Judgment of the Court of Justice, Google Shopping, para 265.
37. Judgment of the Court of Justice, Google Shopping, para 266.
38. Judgment of the Court of Justice, Google Shopping, para 267.
39. Judgment of the Court of Justice, Google Shopping, para 268.
Third Chamber judgment in Slovak Telekom, which held that the Bronner criteria do not apply to conduct which pertains to the conditions for access, rather than a refusal to grant access as such.40 Nonetheless, in view of the unclear status of self-favouring under Article 102 TFEU, it is important that the Court settled this lack of clarity regarding the applicable legal test.
Applying the Bronner criteria to self-favouring would, in our view, have disproportionately affected the enforceability of Article 102 TFEU. As the Court of Justice as well as Advocate General Kokott emphasised, the strict ‘indispensability’ criterion in Bronner was justified by the special circumstances of an express refusal to deal with another undertaking, since any obligation imposed by Article 102 TFEU will interfere with the freedom of contract.41 To apply the indispensability criterion to cases involving unequal treatment through self-favouring would, as Kokott observed, ‘unduly restrict the practical effectiveness of Article 102 TFEU’.42
It is sometimes argued that confining the Bronner test to outright refusals to deal, while applying a less strict test to the conditions of access, creates a perverse incentive for dominant undertakings. They would be incentivised to refuse access to their own infrastructure and services altogether, instead of granting at least some form of access to other undertakings. In the latter case, the dominant undertaking would be obliged to ensure non-discriminatory treatment, while an outright refusal to deal would virtually immunise the dominant undertaking from antitrust enforcement because the Bronner criteria, and the ‘indispensability’ criterion in particular, are notoriously hard to meet.
However, in our view this argument does not withstand close scrutiny. It presumes that the undertaking already has a dominant position upon deciding whether or not to refuse access to its infrastructure or services, and that not granting access will not harm its dominance. Refusing access to its infrastructure altogether, however, will often either prevent an undertaking from becoming dominant in the first place, or least prevent it from maintaining its dominance. While the decision not to grant access to a service or infrastructure may indeed shield an undertaking from Article 102 TFEU enforcement, this will also make it less likely that the undertaking becomes dominant or is able to maintain its dominance.
In rejecting the applicability of the Bronner criteria, therefore, the Court of Justice in our view took an approach that is both principled and pragmatic. It respected the spirit of the Bronner criteria by restricting their applicability to the specific circumstances of the case that gave rise to them. In doing so, moreover, the Court safeguarded the effective enforcement of Article 102 TFEU by refusing to impose the strict ‘indispensability’ requirement on a much wider range of types of conduct.
40. Judgment of the Court of Justice of 25 March 2021, Slovak Telekom v. Commission (C-165/19, EU:C:2021:239, para 59).
41. Advocate General Kokott’s Opinion of 11 January 2024 in Google Shopping (C-48/22, EU:C:2024:14, points 84–87); judgment of the Court of Justice, Google Shopping, paras 90–91.
42. Opinion in Google Shopping, para 88.
‘Competition
on the merits’, novel theories of harm and the causal link requirement
As we explained above, the Court of Justice ruled that the Commission was allowed to classify Google’s conduct as deviating from competition on the merits. The Commission, ‘as a rule’, should demonstrate that the conduct of a dominant undertaking was capable of excluding equally efficient competitors by deviating from competition on the merits. However, the Commission is also allowed to establish an abuse if the conduct of the dominant undertaking impedes potential competitors at an earlier stage, by placing obstacles to market entry and preventing the growth of competition.43 In the next section, we discuss these considerations in some more depth.
First, however, we want to highlight the Court’s conclusion that the Commission should take into account ‘all the relevant factual circumstances’ to demonstrate that the conduct deviated from competition on the merits.44 This requirement aligns with recent case law in the Court that emphasised the importance of a contextual, case-by-case analysis.45
At first sight, this requirement constrains the Commission’s discretion because the Commission cannot rely on general, abstract rules that classify some types of conduct as ‘abusive’ without taking into account the circumstances of each case. However, at the same time and arguably more importantly, the Court authorised the Commission to craft novel theories of harm and establish new forms of abuse, to the extent that the Commission indeed relies on all the relevant factual circumstances. The Commission is allowed, for example, to use ‘different analytical templates depending on the type of conduct’ in order to show ‘on the basis of specific tangible points of analysis and evidence’ that the conduct is capable of excluding equally efficient competitors.46
There is no requirement, therefore, that the Commission relies on a previously established substantive legal test or existing categories of abuse recognised in the case law. The Commission may further develop Article 102 doctrine by applying the abstract prohibition to abuse a dominant position to new cases, as long as it respects existing substantive principles and meets the evidentiary requirements mentioned above.47 In this sense, the Commission is not merely a law-applying institution, but also acts as a law-maker.48
This is a welcome clarification of the Commission’s competence to pursue cases based on new theories of harm, which is particularly important in light of the rapidly developing nature of digital markets. As (online) business
43. Judgment of the Court of Justice, Google Shopping, para 167.
44. Judgment of the Court of Justice, Google Shopping, paras 166, 168
45. See e.g. judgment of the Court of Justice of 27 March 2012, Post Danmark A/S v. Konkurrencerådet (Post Danmark I), (C-209/10, EU:C:2012:172, para 26); judgment of the Court of Justice of 19 April 2018, MEO v. Autoridade da Concorrência (C-525/16, EU:C:2018:270, para 28); judgment of the Court of Justice of 6 September 2017, Intel v. European Commission (C-413/14, EU:C:2017:632, paras 139–140.
46. Judgment of the Court of Justice, Google Shopping, para 166.
47. See to this effect, in response to the General Court’s judgment in Google Shopping, Justin Lindeboom, ‘Rules, Discretion, and Reasoning According to Law: A Dynamic-Positivist Perspective on Google Shopping’, Journal of European Competition Law & Practice 13, 2022, pp. 63–74.
48. See Justin Lindeboom, ‘Reason and Fiat in the Google Shopping Case’, Kluwer Competition Law Blog, 28 March 2024.
models are constantly adapting, competition authorities should have the policy freedom to apply existing legal rules to wholly novel types of conduct. Paragraphs 165 to 168 of Google Shopping imply that the Commission indeed has this competence, without jeopardising the EU Courts’ ability to review Commission decisions on their compatibility with the substantive principles and evidentiary requirements as developed in the case law.
The same applies, in our view, to the Court’s application of the causal link requirement. As the General Court had held, the Commission cannot reasonably be required to prove how the market would have developed in the absence of the dominant undertaking’s conduct. This will often be an ‘arbitrary or even impossible exercise if that counterfactual scenario does not really exist for a market that originally had similar characteristics to the market or markets in which those practices were implemented’.49
The Court of Justice therefore merely required the Commission to supplement the finding of a correlation between the conduct at stake and the modification of the conditions of competition with additional evidence in order to demonstrate a causal link.50 Contrary to Article 101 TFEU, the case law of the EU Courts never required the Commission to identify a comprehensive and credible counterfactual scenario for the purpose of Article 102 TFEU, and Google Shopping continues this approach. This makes sense from both an economic and a legal perspective. In abuse cases the appropriate counterfactual scenario is often epistemically inaccessible, simply because the presence and conduct of a dominant undertaking is likely to affect the conditions of competition to such an extent that we cannot credibly reconstruct a hypothetical scenario in which the conduct did not take place but which otherwise developed identically.
What the Court did instead is essentially a distribution of the evidential burden of proof, as Pablo Ibanez Colomo noted.51 While it is for the Commission to establish a causal link, this burden of proof does not require the Commission ‘systematically to use any single tool to prove the existence of such a causal link’.52 By requiring the Commission to demonstrate a causal link without necessarily conducting a full-fledged counterfactual analysis, and by allowing the dominant undertaking to present such a counterfactual in defence, the Court again provided a pragmatic approach to the evidentiary requirements of Article 102 TFEU that is also consistent with the principles from earlier case law.
The ‘as-efficient competitor principle’ and the objectives of Article 102 TFEU
In regard to the ‘as-efficient competitor principle’, the judgment of the Court of Justice seems to send some mixed signals. On the one hand, the Court affirmed that Article 102 TFEU does not aim to prevent the departure from the market or the marginalisation of competitors which are ‘less efficient and so less attractive to consumers from the
49. Judgment of the General Court, Google Shopping, para 377.
50. Judgment of the Court of Justice, Google Shopping, para 225.
51. Pablo Ibáñez Colomo, ‘Case C- 48/22 P, Google Shopping: great cases make… for carefully crafted judgments’, Chillin’Competition, 16 September 2024.
52. Judgment of the Court of Justice, Google Shopping, para 228.
point of view of, among other things, price, choice, quality or innovation’.53 But at the same time it expressly stated that an abuse may also be found if the dominant undertaking prevents new competitors, which may not yet be equally efficient, from entering the market,54 and it explicitly confirmed that the Commission is not always required to prove that the dominant undertaking’s conduct is capable of excluding an as-efficient competitor.55
Accordingly, we respectfully disagree, as a factual matter, with Pablo Solana Díaz’s conclusion that Google Shopping essentially requires an ‘effort to establish whether, given the content and context of the conduct, its objective aims or overall logic are to foreclose equally efficient competitors’.56 This conclusion ignores paragraphs 167 and 264 of the Google Shopping judgment.
Moreover, in our view the Court of Justice was legally and economically correct not to elevate the as-efficient competitor principle to a universal principle of Article 102 TFEU. This is what recent case law had suggested by emphasising the fact that Article 102 TFEU is not intended to prevent less efficient competitors from leaving the market.57 The Court’s corrective clarification in Google Shopping is the right approach for two reasons.
First, Article 102 TFEU aims to protect ‘competition’, not ‘competition among equally efficient competitors’. Since competitors less efficient than the dominant undertaking also exert competitive pressure to the benefit of consumers,58 and Article 102 TFEU imposes a ‘special obligation’ on dominant undertakings not to further weaken competition,59 there is no principled reason why Article 102 TFEU should only protect as-efficient competitors.60 In this regard, the as-efficient competitor principle is a legal formalism.61 We submit that this rule mainly serves as a heuristic device to avoid false positive outcomes in situations where less efficient competitors leave the market not due to the dominant undertaking’s conduct, but because they are less attractive to the consumer. However, this does not mean that the exclusion of less efficient competitors which is the result of the dominant undertaking’s conduct cannot be abusive, which indeed the Court of Justice confirmed in this judgment.
53. Judgment of the Court of Justice, Google Shopping, para 164.
54. Judgment of the Court of Justice, Google Shopping, para 167.
55. Judgment of the Court of Justice, Google Shopping, para 264.
56. Pablo Solano Díaz, ‘A Hopeful Reading of Android Auto and Google Shopping. Content, Context and Equally Efficient Competitors: Google and Alphabet (C-48/22 P)’, EU Law Live, 12 September 2024 (emphasis in original).
57. Judgment of the Court of Justice, Post Danmark I, para 21; judgment of the Court of Justice, Intel v. European Commission, para 133; judgment of the Court of Justice of 12 May 2022, Servizio Elettrico Nazionale v. Autorità Garante della Concorrenza e del Mercato (C377/20, EU:C:2022:379, para 45).
58. See e.g. Steven Salop, ‘Exclusionary Conduct, Effect on Consumers, and the Flawed Profit-Sacrifice Standard’, 73 Antitrust Law Journal, 2006, pp. 311–374, 328–329; Ioannis Lianos, ‘The Price/Non Price Exclusionary Abuses Dichotomy: A Critical Appraisal’, Concurrences, 2009.
59. Judgment of the Court of Justice, Google Shopping, para 163.
60. See also e.g. judgment of the Court of Justice of 6 October 2015, Post Danmark A/S v Konkurrencerådet (Post Danmark II) (C-23/14, EU:C:2015:651, paras 59–60); European Commission, ‘Enforcement Priorities in Applying Article 82 EC Treaty to Abusive Exclusionary Conduct by Dominant Undertakings’ [2009] OJ C45/7, para. 24; European Commission, ‘Draft Guidelines on the application of Article 102 TFEU to abusive exclusionary conduct by dominant undertakings’ [2024], para 144.
61. Justin Lindeboom, ‘Formalism in Competition Law’, Journal of Competition Law & Economics 18, 2022, pp. 832–880, p. 866.
Moreover, in some markets it is virtually impossible for competitors to be as efficient as the dominant undertaking, precisely because the latter has achieved scale advantages that cannot be duplicated at least in the short or medium term. In such a situation, the dominant undertaking is not punished from having reached a superior degree of efficiency, but simply may not abuse its lawfully acquired dominance to prevent potential and emerging competitors from challenging its dominance. In this regard, paragraph 167 of the Court’s judgment emphasises that Article 102 TFEU expressly aims to ensure open and contestable markets.
Consequently, we would also disagree in this respect with Pablo Solana Diaz’s earlier Op-Ed on Advocate General Kokott’s Opinion in Google Shopping, in which he argued that Article 102 TFEU should not ‘pursue objectives other than protecting equally efficient competitors’ and that ensuring the contestability of markets is ‘alien to competition law and should be fostered by purpose-specific regulation (such as […] the Digital Markets Act)’.62 In fact, up until 2012 the as-efficient competitor principle as a general principle of Article 102 was foreign to the case law. In Google Shopping, the Court of Justice confirmed that its relatively recent introduction into the Article 102 case law should not be read as providing an all-encompassing philosophy of Article 102 TFEU.
The question that Google Shopping leaves on the table is the following. How should we determine in which circumstances the as-efficient competitor principle is, or rather is not, applicable? In this respect the judgment remains unclear, which may be caused by the fact that the Court was keen to both confirm its earlier case law and emphasise the limits of the as-efficient competitor principle. In paragraphs 164 to 167, the Court suggested that the as-efficient competitor principle primarily applies in cases about the (alleged) exclusion of existing competitors on the market, while it does not apply to cases concerning the exclusion of potential or emerging competitors that are not yet equally efficient. In paragraphs 264 to 268, the Court noted that the as-efficient competitor test appears in particular (such caution on part of the Court!) to be relevant if the dominant undertaking has casted sufficiently substantiated doubt on the capability of its conduct to restrict competition.
The legacy of the Google Shopping case and the Digital Markets Act
As we mentioned at the start of this contribution, the Google Shopping judgment marks the end of a 14-year procedure. As Ruben Elkerbout, Philine Wassenaar and Saimi Merenlahti observed in their commentary, however, this judgment may just as well be regarded as the start, rather than the end, of an era. For one, this is because comparison shopping services are now able to sue Google before national courts throughout Europe for damages suffered during the entire period of abuse.63
Furthermore, the prohibition of anti-competitive self-favouring by now has been incorporated into the Digital Markets Act, which contains a per se prohibition for designated gatekeepers to favour their own products and
62. Pablo Solano Díaz, ‘Opinion in Google Shopping: Growing and trimming Occam’s beard and cutting oneself on the way’, EU Law Live, 17 January 2024.
63. Ruben Elkerbout, Philine Wassenaar and Saimi Merenlahti, ‘The End or the Beginning of an Era? The Court of Justice Delivers its Verdict in the Google Shopping Case’, The Platform Law Blog, 17 September 2024.
services over similar products and services of third parties.64 This regulatory prohibition ‘is a direct translation of the Google Shopping theory of harm into regulation’, as Jasper van den Boom rightly stated.65 The Digital Market Act of course applies only to the limited set of gatekeepers that includes, for now, Alphabet (Google), Amazon, Apple, Booking.com, ByteDance, Meta and Microsoft. At the same time, the Digital Markets Act deliberately contains no requirement to prove actual or potential anti-competitive effects, nor an efficiency defence for gatekeepers, such that the enforcement of this provision against self-favouring conduct by gatekeepers is expected to be faster than the application of Article 102 TFEU.
This brings us to a final observation on the effective enforcement of Article 102 TFEU. As we noted above, the Google Shopping judgment upholds the main principles of Article 102 TFEU – further developing them where appropriate – while also recognising the importance of effective and flexible enforcement. It allows the Commission a sufficient degree of flexibility to prove to the requisite legal standard that the conduct of a dominant undertaking deviates from competition on the merits and is capable of restricting competition.
At the same time, the Court emphasises that the Commission is required to take into account all the relevant circumstances of the individual case. This ‘all-things-considered’ approach is one of the main reasons why recent cases involving Article 102 TFEU have been very time-consuming. Indeed, the recently published Draghi report points at the fact that antitrust cases take too long and are insufficiently predictable for companies.66 While the Court of Justice in Google Shopping offered the Commission, as a general manner, enough flexibility to enforce Article 102 TFEU against future instances of self-favouring, it remains to be seen whether such cases can be pursued quickly and effectively, without harming predictability, legal certainty and effective judicial review.
Google Shopping will have a lasting impact as a landmark decision on the prohibition of abuse of dominant position, fleshing out a number of important requirements for establishing an abuse of dominance in a judgment that is principled and pragmatic alike. Moreover, regardless of how this judgment will impact future cases based on Article 102 TFEU itself, the Google Shopping case will live on in the Digital Markets Act.67
64. Art. 6(5) of Regulation (EU) 2022/1925 on contestable and fair markets in the digital sector, OJ 2022, L 265, p. 1.
65. Jasper van den Boom, ‘Winners & Losers: Game Set and Match in Google Shopping?’, SCiDA Blog, 7 September 2024.
66. The Future of European Competitiveness: Part B: In-depth Analysis and Recommendations (September 2024), 304.
67. For a political economy perspective on the relationship between Google Shopping and the Digital Markets Act, see Justin Lindeboom, ‘Google Android, Google Shopping and the Digital Markets Act: Three Sides of the Same Countermovement’ in Lewis Reed and Pablo Solano Díaz (eds.), Symposium: The Impact of the Google Android Judgment (EU Law Live, December 2022).
HIGHLIGHT F THE WEEK S O
VAT exemption and state aid: Request for preliminary ruling by the Bundesfinanzgericht (Austria), published in OJ
Monday 23 September
The Bundesfinanzgericht (Austria) submitted a request for a preliminary ruling to the Court of Justice of the European Union (CJEU) on June 28, 2024, concerning a case on a specific question about the interpretation of European Union law, particularly in the context of value added tax (VAT) and State aid.
Read on EU Law Live
Commission Recommendation (EU) 2024/2481 setting out guidelines for the interpretation of Articles 21, 22 and 24 of Directive (EU) 2023/1791 as regards the consumer related provisions, published in OJ
Monday 23 September
The European Commission issued Recommendation (EU) 2024/2481 on September 13, 2024, providing guidelines for interpreting consumer-related provisions of Directive (EU) 2023/1791, which significantly enhances energy efficiency goals for 2030 and introduces new consumer empowerment and protection measures.
Read on EU Law Live
General Court to hear case on action against Commission Decision 2024/1224 rejecting application for protection of geographical indication
Monday 23 September
Official publication was made of an action, brought on 24 July 2024 by MNFPUGs Sustainable Cashmere Market Place Srl against the European Commission, by which the applicant claims that the Court should annul Commission Implementing Decision (EU) 2024/1224 of 30 April 2024 rejecting an application for protection of geographical indication of the name ‘Mongol Togtvortoi Nooluur’.
Read on EU Law Live
Council Decision (EU) 2024/2517, taken by common accord with the President-elect of the Commission, persons proposed for appointment as Members of the Commission, published in OJ
Monday 23 September
The Council of the European Union adopted Decision (EU) 2024/2517 on September 19, 2024, which finalises the list of proposed members for the new European Commission, whose mandate runs until October 31, 2029.
Read on EU Law Live
Preliminary reference on notion of ‘associated person’, in the meaning of Council Regulation 269/2014 on restrictive measures against actions threatening Ukraine
Monday 23 September
A request for a preliminary ruling from the Augstākā tiesa (Senāts) (Latvia), lodged on 9 July 2024, by which the referring court is seeking clarification on the concept of ‘associated person’, within the meaning of Article 2 of Council Regulation (EU) 269/2014 of 17 March 2014 on restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, was officially published in the OJ: Čiekuri-Shishki (C-480/24).
Read on EU Law Live
Commission initiates WTO consultation request against China’s investigation of certain dairy imports from the EU
Monday 23 September
The Commission launched a consultation request at the World Trade Organization (WTO), against China’s initiation of an anti-subsidy investigation against imports of certain dairy products from the EU.
Read on EU Law Live
Preliminary ruling request on in absentia convictions and enforcement under EU Framework Decision, published in OJ
Tuesday 24 September
The Kammergericht Berlin (Germany) lodged a request for a preliminary ruling with the Court of Justice of the European Union (CJEU) in a case involving several key questions concerning the interpretation of Council Framework Decision 2008/909/JHA, as amended by Council Framework Decision 2009/299/JHA, which deals with the recognition and enforcement of criminal judgments within the European Union: Staatsanwaltschaft Berlin (C-447/24, Höldermann).
Read on EU Law Live
Court of Justice to rule on judicial independence and overtime compensation of judges
Tuesday 24 September
The Curtea de Apel București (Romania) requested a preliminary ruling in the case of HZ v Tribunalul Galați (C-272/24), concerning the rights of judges to receive compensation for overtime work.
Read on EU Law Live
Court of Justice streaming hearing of case on the scope of application of the Charter in the imposition of an administrative fine
Tuesday 24 September
The hearing of the Court of Justice’s Grand Chamber in BAJI Trans (C-544/23), a case concerning, in essence, the referring court’s doubts as to whether EU law applies in the event of the imposition of an administrative penalty for failure to fulfil an obligation under EU law, was streamed at the Court of Justice’s website.
Read on EU Law Live
Request for preliminary ruling on interpretation of EU rules on supplementary protection certificate for medicinal products, published in OJ
Tuesday 24 September
Official publication was made of a preliminary ruling request from the Nejvyšší správní soud (Czech Republic) lodged on 27 June 2024 in Halozyme, Inc. v Úřad průmyslového vlastnictví: Halozyme (C-456/24).
Read on EU Law Live
Preliminary ruling request on public prosecutors’ employment status in Croatia, published in OJ
Tuesday 24 September
On May 24, 2024, the Općinski sud u Puli-Pola in Croatia submitted a request for a preliminary ruling regarding the employment status of public prosecutors under EU law: Case Ramavić (C-373/24).
Read on EU Law Live
Commission conducts unannounced inspections of companies active in the financial services industry
Tuesday 24 September
The European Commission is carrying out unannounced inspections at the premises of undertakings operating in the financial services sector in two Member States.
Read on EU Law Live
Online platforms report actions to protect European election integrity under Disinformation Code
Tuesday 24 September
Major online platforms such as Google, Meta, Microsoft, and TikTok, signatories of the Code of Practice on Disinformation, published their fourth set of reports outlining their efforts to combat disinformation, especially during the European elections in June.
Read on EU Law Live
Commission greenlights acquisition of PPF Telecom by e& under Foreign Subsidies Regulation, subject to conditions
Tuesday 24 September
The European Commission approved the acquisition by Emirates Telecommunications Group Company PJSC (‘e&’) of sole control of PPF Telecom Group B.V. (‘PPF’), excluding its Czech business, subject to the commitments offered by the parties.
Read on EU Law Live
Norway faces infringement proceedings for non-compliance with EEA port security rules
Wednesday 25 September
The EFTA Surveillance Authority (ESA) initiated infringement proceedings against Norway for not correctly applying the European Economic Area (EEA) rules on port security.
Read on EU Law Live
Commission Delegated Regulation supplementing rules on official activities verifying compliance of agri-food chain operations with Union law, published in OJ
Wednesday 25 September
Official publication was made of Commission Delegated Regulation (EU) 2024/2104 of 27 June 2024 supplementing Regulation (EU) 2017/625 establishing the framework for official controls and other official activities to verify compliance with the Union agri-food chain legislation.
Read on EU Law Live
EPPO seeks prison sentences and fines over suspected evasion of payment of anti-dumping duties on steel sheet imports from China
Wednesday 25 September
The European Public Prosecutor’s Office (EPPO) in Madrid (Spain) is seeking an imprisonment sentence of more than eight years, as well as fines of over €25 million, for two companies and their five directors, suspected of evading the payment of anti-dumping duties on steel sheets from China.
Read on EU Law Live
General Court rules in favor of Nigar Kirimova against EUIPO over nationality exemption request to be listed as a professional representative
Wednesday 25 September
The General Court delivered a judgment in Case Kirimova v EUIPO (T 727/20 RENV), where Nigar Kirimova contested a decision by the European Union Intellectual Property Office (EUIPO) regarding her request for exemption from the nationality requirement to be listed as a professional representative.
Read on EU Law Live
General Court hands down judgment on several cases on compliance with EU law of ACER’s cost-sharing methodology on electricity TSOs
Wednesday 25 September
The Extended Composition of the General Court delivered its jugdment in a number of cases regarding claims against the decision of the Board of Appeal of ACER, which upholds ACER Decision 30/2020 on the Core CCR TSOs’ proposal for the methodology for cost sharing of redispatching and countertrading.
Read on EU Law Live
Council adopts a negotiating mandate aimed at modernizing the alternative dispute resolution (ADR) framework to address the challenges posed by the digital economy
Wednesday 25 September
The Council adopted a negotiating mandate aimed at modernizing the alternative dispute resolution (ADR) framework to address the challenges posed by the digital economy.
Read on EU Law Live
Over 100 Companies sign EU AI Pact to promote safe and trustworthy AI development
Thursday 26 September
Over 100 companies, including multinational corporations and European small and medium enterprises (SMEs), signed the EU AI Pact, pledging voluntary commitments to foster responsible AI development.
Read on EU Law Live
Not all cases of GDPR breach require supervisory authority to exercise corrective power, rules Court of Justice
Thursday 26 September
The Court of Justice handed down judgment in Land Hessen (C-768/21), a request for a preliminary ruling from the Administrative Court, Wiesbaden (Germany) concerning the interpretation of Article 57(1)(a) and (f), 58(2) and 77(1) of the GDPR (Regulation 2016/679).
Read on EU Law Live
Regulation (EU, Euratom) 2024/2509 on the financial rules applicable to the general budget of the Union (recast), published in OJ
Thursday 26 September
The recast of the 2018 Euratom Regulation aims to improve transparency, efficiency, and legal certainty, incorporating changes necessary for adapting to new legal frameworks and enhancing crisis management.
Read on EU Law Live
Opinion of Advisory Committee and Report of Hearing Officer in IFF case, published in OJ
Thursday 26 September
Official publication was made of the Opinion of the Advisory Committee on restrictive practices and dominant positions, as well as the Final Report of the Hearing Officer, in relation to the Commission’s draft decision adopted in the context of case AT.40882 - IFF - Deletion of Data.
Read on EU Law Live
Energotehnica: Right to an effective remedy allows national courts not to apply a decision of their constitutional court which infringes Union law
Thursday 26 September
The Court of Justice handed down judgment in Energotehnica (C-792/22), a request for a preliminary ruling from the Court of Appeal, Brașov (Romania), made in the context of a dispute arising from the death of an electrician by electrocution during a maintenance operation.
Read on EU Law Live
Court of Justice: Traders cannot calculate price reduction in an advertisement based on price immediately prior to that offer
Thursday 26 September
The Eighth Chamber of the Court of Justice handed down its jugdment in Aldi Süd (C-330/23), a case concerning a preliminary ruling request seeking clarification on the calculation of price reductions in an advertisement.
Read on EU Law Live
Article 7 of the Charter protects legal advice given by lawyer to their client for the purposes of a request for information under Directive 2011/16
Thursday 26 September
The Court of Justice handed down judgment in Ordre des Avocats du Barreau de Luxembourg (C-432/23), a request for a preliminary ruling from the Higher Administrative Court of Luxembourg concerning the interpretation of Directive 2011/16 on administrative cooperation in the field of taxation.
Read on EU Law Live
Court of Justice rules on tax treatment of construction workers working abroad
Thursday 26 September
The Court of Justice of the European Union delivered a ruling in case Nord Vest Pro Sani Pro (C-387/22), concerning a preliminary ruling request involving Nord Vest Pro Sani Pro SRL, a Romanian construction company that challenged the tax and social benefits accorded to its employees working abroad in Germany and Austria.
Read on EU Law Live
Court of Justice declares the inadmissibility of a preliminary ruling request by the French High Council of Auditors
Thursday 26 September
The Court declared the inadmissibilty of a preliminary ruling request made by the restricted formation of the High Council of Auditors (H3C) of France, regarding the interpretation of certain European directives related to services and statutory audits.
Read on EU Law Live
Court of Justice dismisses appeal by Puigdemont and Comín against refusal of European Parliament to recognise their status as MEPs
Thursday 26 September
The Fourth Chamber of the Court of Justice dismissed the action brought by Mr. Puigdemont and Mr. Comín against the refusal of the President of the European Parliament to recognise their status as Members of the European Parliament in June 2019: Puigdemont i Casamajó and Comín i Oliveres v Parliament (C-600/22 P).
Read on EU Law Live
Advocate General Campos Sánchez-Bordona’s Opinion on exclusivity in public procurement
Thursday 26 September
Advocate General Campos Sánchez-Bordona delivered an Opinion regarding Case C-578/23 involving the Czech Republic’s General Financial Directorate and its use of a negotiated procedure to award a contract without prior publication.
Read on EU Law Live
Court of Justice confirms General Court’s judgment regarding the calculation of the recovery of State aid granted by Belgium to JCDecaux
Thursday 26 September
The Court of Justice delivered its judgment in an appeal case concerning the annulment of Decision C(2019) 4466 of the European Commission of 24 June 2019, in so far as it orders the recovery of State aid granted to JCDecaux by the Belgian State: JCDecaux Street Furniture Belgium v Commission (C-710/22 P).
Read on EU Law Live
Orlen v Commission (C-255/22 P): Court of Justice dismisses appeal concerning Gazprom’s practices affecting gas sector in Central and Eastern Europe
Thursday 26 September
The Second Chamber of the Court of Justice delivered its judgment in a case brought by Orlen S.A. against the judgment of the General Court, by which it dismissed its action for annulment of Commission Decision C(2018) 3106 final of 24 May 2018 relating to a proceeding under Article 102 [TFEU] and Article 54 of the EEA Agreement (Case AT.39816 – Upstream gas supplies in Central and Eastern Europe) (‘the decision at issue’): Orlen v Commission (C-255/22 P).
Read on EU Law Live
Court of Justice dismisses appeals concerning German State aid granted to energy network operators
Thursday 26 September
The Court of Justice handed down judgment in several appeal cases brought against decisions of the Commission relating to Germany’s unlawful granting of State aid, which enabled large energy consumers to avoid paying network charges.
Read on EU Law Live
Court of Justice dismisses appeals concerning German State aid granted to energy network operators
Thursday 26 September
The Court of Justice handed down judgment in several appeal cases brought against decisions of the Commission relating to Germany’s unlawful granting of State aid, which enabled large energy consumers to avoid paying network charges.
Read on EU Law Live
Commission urges Member States to comply with directive transposition
Friday 27 September
The European Commission initiated infringement procedures against several Member States for failing to transpose key EU directives into national law.
Read on EU Law Live
EU proposes change to wolf conservation status under Bern Convention
Friday 27 September
The European Council approved a decision to propose amending the conservation status of wolves under the Bern Convention, moving them from strictly protected to protected fauna species.
Read on EU Law Live
Court of Auditors cast doubt in relation to effectiveness of EU support and strategy for organic farming
Friday 27 September
A report published by the European Court of Auditors pointed out that the current EU strategy for support of organic farming has significant shortcomings, and there is neither a vision nor targets for the organic sector beyond 2030.
Read on EU Law Live
ESA asks Norway comply with EEA rules on recognition of professional qualifications
Friday 27 September
ESA informed Norway, through a letter of formal notice, of its decision to open an own-initiative case on the lack of aptitude tests in the recognition process for clinical nutritionists when assessing professional qualifications obtained in another EEA State.
Read on EU Law Live
EFTA Court and EEA Agreement’s 30th anniversary streamed online
Friday 27 September
The Anniversary of the EFTA Court conference, celebrating the 30th anniversary of the Court and the EEA Agreement, was streamed online.
Read on EU Law Live
Council approves Internal Market Emergency and Resilience Act
Friday 27 September
The European Council finalized the Internal Market Emergency and Resilience Act (IMERA), establishing a framework to enhance crisis preparedness within the internal market.
Read on EU Law Live